1

EQUAL PROTECTION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45987 May 5, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CAYAT, defendant-appellant.
Sinai Hamada y Cario for appellant.
Office of the Solicitor-General Tuason for appellee.
MORAN, J.:
Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat, a native of Baguio,
Benguet, Mountain Province, was sentenced by the justice of the peace court of Baguio to pay a
fine of five pesos (P5) or suffer subsidiary imprisonment in case of insolvency. On appeal of the
Court of First Instance, the following information was filed against him:
That on or about the 25th day of January, 1937, in the City of Baguio, Commonwealth of
the Philippines, and within the jurisdiction of this court, the above-named accused,
Cayat, being a member of the non-Christian tribes, did then and there wilfully,
unlawfully, and illegally receive, acquire, and have in his possession and under his
control or custody, one bottle of A-1-1 gin, an intoxicating liquor, other than the so-called
native wines and liquors which the members of such tribes have been accustomed
themselves to make prior to the passage of Act No. 1639.
Accused interposed a demurrer which was overruled. At the trial, he admitted all the facts
alleged in the information, but pleaded not guilty to the charge for the reasons adduced in his
demurrer and submitted the case on the pleadings. The trial court found him guilty of the crime
charged and sentenced him to pay a fine of fifty pesos (P50) or supper subsidiary imprisonment
in case of insolvency. The case is now before this court on appeal. Sections 2 and 3 of Act No.
1639 read:
SEC. 2. It shall be unlawful for any native of the Philippine Islands who is a member of a
non-Christian tribe within the meaning of the Act Numbered Thirteen hundred and
ninety-seven, to buy, receive, have in his possession, or drink any ardent spirits, ale,
beer, wine, or intoxicating liquors of any kind, other than the so-called native wines and
liquors which the members of such tribes have been accustomed themselves to make
prior to the passage of this Act, except as provided in section one hereof; and it shall be
the duty of any police officer or other duly authorized agent of the Insular or any
provincial, municipal or township government to seize and forthwith destroy any such
liquors found unlawfully in the possession of any member of a non-Christian tribe.
SEC. 3. Any person violating the provisions of section one or section two of this Act shall,
upon conviction thereof, be punishable for each offense by a fine of not exceeding two
hundred pesos or by imprisonment for a term not exceeding six months, in the discretion
of the court.
2

The accused challenges the constitutionality of the Act on the following grounds:
(1) That it is discriminatory and denies the equal protection of the laws;
(2) That it is violative of the due process clause of the Constitution: and.
(3) That it is improper exercise of the police power of the state.
Counsel for the appellant holds out his brief as the "brief for the non-Christian tribes." It is said
that as these less civilized elements of the Filipino population are "jealous of their rights in a
democracy," any attempt to treat them with discrimination or "mark them as inferior or less
capable rate or less entitled" will meet with their instant challenge. As the constitutionality of the
Act here involved is questioned for purposes thus mentioned, it becomes imperative to examine
and resolve the issues raised in the light of the policy of the government towards the non-
Christian tribes adopted and consistently followed from the Spanish times to the present, more
often with sacrifice and tribulation but always with conscience and humanity.
As early as 1551, the Spanish Government had assumed an unvarying solicitous attitude toward
these inhabitants, and in the different laws of the Indies, their concentration in so-called
"reducciones" (communities) have been persistently attempted with the end in view of according
them the "spiritual and temporal benefits" of civilized life. Throughout the Spanish regime, it had
been regarded by the Spanish Government as a sacred "duty to conscience and humanity" to
civilize these less fortunate people living "in the obscurity of ignorance" and to accord them the
"the moral and material advantages" of community life and the "protection and vigilance afforded
them by the same laws." (Decree of the Governor-General of the Philippines, Jan. 14, 1887.) This
policy had not been deflected from during the American period. President McKinley in his
instructions to the Philippine Commission of April 7, 1900, said:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt the
same course followed by Congress in permitting the tribes of our North American Indians
to maintain their tribal organization and government, and under which many of those
tribes are now living in peace and contentment, surrounded by civilization to which they
are unable or unwilling to conform. Such tribal government should, however, be
subjected to wise and firm regulation; and, without undue or petty interference, constant
and active effort should be exercised to prevent barbarous practices and introduce
civilized customs.
Since then and up to the present, the government has been constantly vexed with the problem of
determining "those practicable means of bringing about their advancement in civilization and
material prosperity." (See, Act No. 253.) "Placed in an alternative of either letting them alone or
guiding them in the path of civilization," the present government "has chosen to adopt the latter
measure as one more in accord with humanity and with the national conscience." (Memorandum
of Secretary of the Interior, quoted in Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.)
To this end, their homes and firesides have been brought in contact with civilized communities
through a network of highways and communications; the benefits of public education have to
them been extended; and more lately, even the right of suffrage. And to complement this policy of
attraction and assimilation, the Legislature has passed Act No. 1639 undoubtedly to secure for
them the blessings of peace and harmony; to facilitate, and not to mar, their rapid and steady
march to civilization and culture. It is, therefore, in this light that the Act must be understood
and applied.
It is an established principle of constitutional law that the guaranty of the equal protection of the
laws is not equal protection of the laws is not violated by a legislation based on reasonable
classification. And the classification, to be reasonable, (1) must rest on substantial distinctions;
(2) must be germane to the purposes of the law; (3) must not be limited to existing conditions
3

only; and (4) must apply equally to all members of the same class. (Borgnis vs.Falk Co., 133
N.W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55 Law. ed., Rubi vs. Provincial
Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking Corporation vs. Vera
and Cu Unjieng, 37 Off. Gaz ., 187.)
Act No. 1639 satisfies these requirements. The classification rests on real and substantial, not
merely imaginary or whimsical, distinctions. It is not based upon "accident of birth or parentage,"
as counsel to the appellant asserts, but upon the degree of civilization and culture. "The term
'non-Christian tribes' refers, not to religious belief, but, in a way, to the geographical area, and,
more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in
tribal relationship apart from settled communities." (Rubi vs. Provincial Board of
Mindoro, supra.) This distinction is unquestionably reasonable, for the Act was intended to meet
the peculiar conditions existing in the non-Christian tribes. The exceptional cases of certain
members thereof who at present have reached a position of cultural equality with their Christian
brothers, cannot affect the reasonableness of the classification thus established.
That it is germane to the purposes of law cannot be doubted. The prohibition "to buy, receive,
have in his possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any
kind, other than the so-called native wines and liquors which the members of such tribes have
been accustomed themselves to make prior to the passage of this Act.," is unquestionably
designed to insure peace and order in and among the non-Christian tribes. It has been the sad
experience of the past, as the observations of the lower court disclose, that the free use of highly
intoxicating liquors by the non-Christian tribes have often resulted in lawlessness and crimes,
thereby hampering the efforts of the government to raise their standard of life and civilization.
The law is not limited in its application to conditions existing at the time of its enactment. It is
intended to apply for all times as long as those conditions exist. The Act was not predicated, as
counsel for appellant asserts, upon the assumption that the non-Christians are "impermeable to
any civilizing influence." On the contrary, the Legislature understood that the civilization of a
people is a slow process and that hand in hand with it must go measures of protection and
security.
Finally, that the Act applies equally to all members of the class is evident from a perusal thereof.
That it may be unfair in its operation against a certain number non-Christians by reason of their
degree of culture, is not an argument against the equality of its application.
Appellants contends that that provision of the law empowering any police officer or other duly
authorized agent of the government to seize and forthwith destroy any prohibited liquors found
unlawfully in the possession of any member of the non-Christian tribes is violative of the due
process of law provided in the Constitution. But this provision is not involved in the case at bar.
Besides, to constitute due process of law, notice and hearing are not always necessary. This rule
is especially true where much must be left to the discretion of the administrative officials in
applying a law to particular cases. (McGehee, Due Process of Law p. 371, cited with approval in
Rubivs. Provincial Board of Mindoro, supra.) Due process of law means simply: (1) that there
shall be a law prescribed in harmony with the general powers of the legislative department of the
government; (2) that it shall be reasonable in its operation; (3) that it shall be enforced according
to the regular methods of procedure prescribed; and (4) that it shall be applicable alike to all
citizens of the state or to all of the class. (U.S. vs. Ling Su Fan, 10 Phil., 104, affirmed on appeal
by the United States Supreme Court, 218 U.S., 302: 54 Law. ed., 1049.) Thus, a person's
property may be seized by the government in payment of taxes without judicial hearing; or
property used in violation of law may be confiscated (U.S. vs. Surla, 20 Phil., 163, 167), or when
the property constitutes corpus delicti, as in the instant case (Moreno vs. Ago Chi, 12 Phil., 439,
442).
4

Neither is the Act an improper exercise of the police power of the state. It has been said that the
police power is the most insistent and least limitable of all powers of the government. It has been
aptly described as a power co-extensive with self-protection and constitutes the law of overruling
necessity. Any measure intended to promote the health, peace, morals, education and good order
of the people or to increase the industries of the state, develop its resources and add to its wealth
and prosperity (Barbier vs. Connolly, 113 U.S., 27), is a legitimate exercise of the police power,
unless shown to be whimsical or capricious as to unduly interfere with the rights of an
individual, the same must be upheld.
Act No. 1639, as above stated, is designed to promote peace and order in the non-Christian
tribes so as to remove all obstacles to their moral and intellectual growth and, eventually, to
hasten their equalization and unification with the rest of their Christian brothers. Its ultimate
purpose can be no other than to unify the Filipino people with a view to a greater Philippines.
The law, then, does not seek to mark the non-Christian tribes as "an inferior or less capable
race." On the contrary, all measures thus far adopted in the promotion of the public policy
towards them rest upon a recognition of their inherent right to equality in that enjoyment of
those privileges now enjoyed by their Christian brothers. But as there can be no true equality
before the law, if there is, in fact, no equality in education, the government has endeavoured, by
appropriate measures, to raise their culture and civilization and secure for them the benefits of
their progress, with the ultimate end in view of placing them with their Christian brothers on the
basis of true equality. It is indeed gratifying that the non-Christian tribes "far from retrograding,
are definitely asserting themselves in a competitive world," as appellant's attorney impressively
avers, and that they are "a virile, up-and -coming people eager to take their place in the world's
social scheme." As a matter of fact, there are now lawyers, doctors and other professionals
educated in the best institutions here and in America. Their active participation in the
multifarious welfare activities of community life or in the delicate duties of government is
certainly a source of pride and gratification to people of the Philippines. But whether conditions
have so changed as to warrant a partial or complete abrogation of the law, is a matter which
rests exclusively within the prerogative of the National Assembly to determine. In the
constitutional scheme of our government, this court can go no farther than to inquire whether
the Legislature had the power to enact the law. If the power exists, and we hold it does exist, the
wisdom of the policy adopted, and the adequacy under existing conditions of the measures
enacted to forward it, are matters which this court has no authority to pass upon. And, if in the
application of the law, the educated non-Christians shall incidentally suffer, the justification still
exists in the all-comprehending principle of salus populi suprema est lex. When the public safety
or the public morals require the discontinuance of a certain practice by certain class of persons,
the hand of the Legislature cannot be stayed from providing for its discontinuance by any
incidental inconvenience which some members of the class may suffer. The private interests of
such members must yield to the paramount interests of the nation (Cf. Boston Beer
Co. vs. Mass., 97 U.S., 25; 24 law. ed., 989).
Judgment is affirmed, with costs against appellant.
Avancea, C.J., Villa-Real, Imperial, Diaz, Laurel, and Conception, JJ., concur.





5

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D.
ACHACOSO, as Administrator of the Philippine Overseas Employment
Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm
"engaged principally in the recruitment of Filipino workers, male and female, for overseas
placement,"
1
challenges the Constitutional validity of Department Order No. 1, Series of 1988, of
the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD
WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed
for "discrimination against males or females;"
2
that it "does not apply to all Filipino workers but
only to domestic helpers and females with similar skills;"
3
and that it is violative of the right to
travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being
legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and decision-making processes affecting their rights
and benefits as may be provided by law."
4
Department Order No. 1, it is contended, was passed
in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-
impairment clause, in addition to the "great and irreparable injury" that PASEI members face
should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment informing
the Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in
the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and
Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General
invokes the police power of the Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police power measure. The only
question is whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been defined as the
"state authority to enact legislation that may interfere with personal liberty or property in order
to promote the general welfare."
5
As defined, it consists of (1) an imposition of restraint upon
liberty or property, (2) in order to foster the common good. It is not capable of an exact definition
but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.
6

"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where
it could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits."
6

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the
Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of government that has enabled it to
perform the most vital functions of governance. Marshall, to whom the expression has been
credited,
7
refers to it succinctly as the plenary power of the State "to govern its citizens."
8

"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly
termed the "law of overwhelming necessity." It may be said to be that inherent and plenary power
in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of
society."
9

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in
the conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual citizen or a group
of citizens to obstruct unreasonably the enactment of such salutary measures calculated to
ensure communal peace, safety, good order, and welfare."
10
Significantly, the Bill of Rights itself
does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself,
the greatest of all rights, is not unrestricted license to act according to one's will."
11
It is subject
to the far more overriding demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all its
awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in
that event, it defeats the purpose for which it is exercised, that is, to advance the public good.
Thus, when the power is used to further private interests at the expense of the citizenry, there is
a clear misuse of the power.
12

In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity.
13
In the absence of clear and
convincing evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be nullified.
There is no question that Department Order No. 1 applies only to "female contract
workers,"
14
but it does not thereby make an undue discrimination between the sexes. It is well-
settled that "equality before the law" under the Constitution
15
does not import a perfect Identity
of rights among all men and women. It admits of classifications, provided that (1) such
classifications rest on substantial distinctions; (2) they are germane to the purposes of the law;
(3) they are not confined to existing conditions; and (4) they apply equally to all members of the
same class.
16

The Court is satisfied that the classification made-the preference for female workers rests on
substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our
female labor force abroad, especially domestic servants, amid exploitative working conditions
marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment
suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by
testimonies of returning workers, are compelling motives for urgent Government action. As
precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of
exploitation. In fulfilling that duty, the Court sustains the Government's efforts.
7

The same, however, cannot be said of our male workers. In the first place, there is no evidence
that, except perhaps for isolated instances, our men abroad have been afflicted with an Identical
predicament. The petitioner has proffered no argument that the Government should act similarly
with respect to male workers. The Court, of course, is not impressing some male chauvinistic
notion that men are superior to women. What the Court is saying is that it was largely a matter
of evidence (that women domestic workers are being ill-treated abroad in massive instances) and
not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is
evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The
Court cannot, however, say the same thing as far as men are concerned. There is simply no
evidence to justify such an inference. Suffice it to state, then, that insofar as classifications are
concerned, this Court is content that distinctions are borne by the evidence. Discrimination in
this case is justified.
As we have furthermore indicated, executive determinations are generally final on the Court.
Under a republican regime, it is the executive branch that enforces policy. For their part, the
courts decide, in the proper cases, whether that policy, or the manner by which it is
implemented, agrees with the Constitution or the laws, but it is not for them to question its
wisdom. As a co-equal body, the judiciary has great respect for determinations of the Chief
Executive or his subalterns, especially when the legislature itself has specifically given them
enough room on how the law should be effectively enforced. In the case at bar, there is no
gainsaying the fact, and the Court will deal with this at greater length shortly, that Department
Order No. 1 implements the rule-making powers granted by the Labor Code. But what should be
noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that
prevailing conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the
measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the
protection for Filipino female overseas workers"
17
this Court has no quarrel that in the midst of
the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for
their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply
indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending review
of the administrative and legal measures, in the Philippines and in the host countries . . ."
18
),
meaning to say that should the authorities arrive at a means impressed with a greater degree of
permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary
malleability, depending on the circumstances of each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment (DOLE)
may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare
and protection of Filipino workers.
19

The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina workers"
20
is not an argument for
unconstitutionality. Had the ban been given universal applicability, then it would have been
unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced.
What the Constitution prohibits is the singling out of a select person or group of persons within
an existing class, to the prejudice of such a person or group or resulting in an unfair advantage
to another person or group of persons. To apply the ban, say exclusively to workers deployed by
A, but not to those recruited by B, would obviously clash with the equal protection clause of the
8

Charter. It would be a classic case of what Chase refers to as a law that "takes property from A
and gives it to B."
21
It would be an unlawful invasion of property rights and freedom of contract
and needless to state, an invalid act.
22
(Fernando says: "Where the classification is based on
such distinctions that make a real difference as infancy, sex, and stage of civilization of minority
groups, the better rule, it would seem, is to recognize its validity only if the young, the women,
and the cultural minorities are singled out for favorable treatment. There would be an element of
unreasonableness if on the contrary their status that calls for the law ministering to their needs
is made the basis of discriminatory legislation against them. If such be the case, it would be
difficult to refute the assertion of denial of equal protection."
23
In the case at bar, the assailed
Order clearly accords protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment.
From scattered provisions of the Order, it is evident that such a total ban has hot been
contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers
of similar skills defined herein to the following [sic] are authorized under these
guidelines and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State
and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly
accredited international organizations.
5.4 Hirings by employers in countries with whom the Philippines
have [sic] bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--
Vacationing domestic helpers and/or workers of similar skills shall be allowed to
process with the POEA and leave for worksite only if they are returning to the
same employer to finish an existing or partially served employment contract.
Those workers returning to worksite to serve a new employer shall be covered by
the suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE)
may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines,
and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers.
24


9

xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair the right. The
right to travel is subject, among other things, to the requirements of "public safety," "as may be
provided by law."
25
Department Order No. 1 is a valid implementation of the Labor Code, in
particular, its basic policy to "afford protection to labor,"
26
pursuant to the respondent
Department of Labor's rule-making authority vested in it by the Labor Code.
27
The petitioner
assumes that it is unreasonable simply because of its impact on the right to travel, but as we
have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes an invalid
exercise of legislative power. It is true that police power is the domain of the legislature, but it
does not mean that such an authority may not be lawfully delegated. As we have mentioned, the
Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the
enforcement whereof.
28

The petitioners reliance on the Constitutional guaranty of worker participation "in policy and
decision-making processes affecting their rights and benefits"
29
is not well-taken. The right
granted by this provision, again, must submit to the demands and necessities of the State's
power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all.
30

"Protection to labor" does not signify the promotion of employment alone. What concerns the
Constitution more paramountly is that such an employment be above all, decent, just, and
humane. It is bad enough that the country has to send its sons and daughters to strange lands
because it cannot satisfy their employment needs at home. Under these circumstances, the
Government is duty-bound to insure that our toiling expatriates have adequate protection,
personally and economically, while away from home. In this case, the Government has evidence,
an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection,
and as part of its duty, it has precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately made use of its
authority. It is not contested that it has in fact removed the prohibition with respect to certain
countries as manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the
loftier purposes targetted by the Government.
31
Freedom of contract and enterprise, like all
other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has
never been fully accepted as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of
recruitment. The concern of the Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits that suffer as a result of
Government regulation. The interest of the State is to provide a decent living to its citizens. The
Government has convinced the Court in this case that this is its intent. We do not find the
impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief
prayed for.

10

WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Cortes and Grio-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.

Footnotes
1 Rollo, 3.
2 Id., 12.
3 Id., 13.
4 CONST., Art XIII, Sec. 3.
* Per reports, on June 14, 1988, the Government is said to have lifted the ban on
five more countries: New Zealand Australia, Sweden, Spain, and West Germany.
("Maid export ban lifted in 5 states," The Manila Chronicle, June 14, 1988, p. 17,
col. 2.)
5 Edu v. Ericta, No. L-32096, October 24, 1970, 35 SCRA 481, 487.
6 Supra, 488.
7 TRIBE, AMERICAN CONSTITUTIONAL LAW, 323 (1978).
8 Id.
9 Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708 (1919).
10 Edu v. Ericta, supra.
11 Rubi v. Provincial Board of Mindoro, supra, 704.
12 It is generally presumed, notwithstanding the plenary character of the
lawmaking power, that the legislature must act for public purposes. In Pascual v.
Secretary of Public Works [110 Phil. 331 (1960)], the Court nullified an act of
Congress appropriating funds for a private purpose. The prohibition was not
embodied in the Constitution then in force, however, it was presumed that
Congress could not do it.
13 Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila, No. L-24693, July 31, 1967, 20 SCRA 849.
14 Dept. Order No. 1 (DOLE), February 10, 1988.
15 CONST., supra, Art. III, Sec. 1.
11

16 People v. Cayat, 68 Phil. 12 (1939).
17 Dept. Order No. 1, supra.
18 Supra.
19 Supra.
20 Rollo, Id., 13.
21 See TRIBE, Id., citing Calder v. Bull, 3 U.S. 386 (1798).
22 Id.
23 FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 549-550 (1977).
24 Dept. Order No. 1, supra.
25 CONST., supra, Art. Ill, Sec. 6.
26 Pres. Decree No. 442, Art. 3.
27 Supra, Art. 5.
28 Supra.
29 CONST., supra, Art. XIII, Sec. 3.
30 Supra.
31 Heirs of Juancho Ardona v. Reyes, Nos. L-60549, 60553-60555, October 26,
1983, 125 SCRA 220.









12

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas
Pambansa Big. 51, 52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who
has filed his certificate of candidacy for said position of Governor in the forthcoming elections of
January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the
Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San
Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg.
52 as discriminatory and contrary to the equal protection and due process guarantees of the
Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C
of the Constitution and disqualification mentioned in existing laws, which are
hereby declared as disqualification for any of the elective officials enumerated in
section 1 hereof.
Any retired elective provincial city or municipal official who has received payment of
the retirement benefits to which he is entitled under the law, and who shall have
been 6,5 years of age at the commencement of the term of office to which he seeks
to be elected shall not be qualified to run for the same elective local office from which
he has retired (Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and
that the classification provided therein is based on "purely arbitrary grounds and, therefore,
class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory
provisions:
13

Sec 7. Terms of Office Unless sooner removed for cause, all local elective
officials hereinabove mentioned shall hold office for a term of six (6) years, which
shall commence on the first Monday of March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall not
be qualified to be a candidate for any of the offices covered by this Act, or to
participate in any partisan political activity therein:
provided that a judgment of conviction for any of the aforementioned crimes shall be
conclusive evidence of such fact and
the filing of charges for the commission of such crimes before a civil court or military
tribunal after preliminary investigation shall be prima fascie evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).
Section 1. Election of certain Local Officials ... The election shall be held on
January 30, 1980. (Batas Pambansa, Blg. 52)
Section 6. Election and Campaign Period The election period shall be fixed by
the Commission on Elections in accordance with Section 6, Art. XII-C of the
Constitution. The period of campaign shall commence on December 29, 1979 and
terminate on January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution,
which provides that a "bona fide candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation will not be taken up in this case
but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been
squarely raised,
Petitioners then pray that the statutory provisions they have challenged be declared null and
void for being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic procedural infirmities,
hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties
and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan
Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint,
nor do the latter join Dumlao in his. The respectively contest completely different statutory
provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The
action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although
petitioners plead nine constraints as the reason of their joint Petition, it would have required
only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure.
14

For another, there are standards that have to be followed inthe exercise of the function of judicial
review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial
by the party raising the constitutional question: (3) the plea that the function be exercised at the
earliest opportunity and (4) the necessity that the constiutional question be passed upon in order
to decide the case (People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the parties
have raised the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by
the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision.
Yet, Dumlao has not been adversely affected by the application of that provision. No petition
seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that
constitutional body on the matter, which this Court is being asked to review on Certiorari. His is
a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory
opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner
Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief
Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following power and functions:
1) xxx
2) Be the sole judge of all contests relating to the elections, returns
and qualifications of all members of the National Assembly and elective provincial
and city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
Section 11. Any decision, order, or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty days from his
receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their
Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that
neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified
from being candidates for local elective positions. Neither one of them has been calle ed to have
been adversely affected by the operation of the statutory provisions they assail as
unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest
15

at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial
redress.
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and
that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The
Secretary of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a statute may be contested only by one who
will sustain a direct injury in consequence of its enforcement. Yet, there are many
decisions nullifying at the instance of taxpayers, laws providing for the
disbursement of public funds, upon the theory that "the expenditure of public
funds, by an officer of the State for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds," which may be
enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the requisite
standing to attack the constitutionality of a statute, the general rule is that not
only persons individually affected, but also taxpayers have sufficient interest in
preventing the illegal expenditure of moneys raised by taxation and they may,
therefore, question the constitutionality of statutes requiring expenditure of public
moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15
SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and
sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While,
concededly, the elections to be held involve the expenditure of public moneys, nowhere in their
Petition do said petitioners allege that their tax money is "being extracted and spent in violation
of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392
U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent from
wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution
Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se
is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677
[1972]), speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of
an act of the legislature will not be determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary to a determination of the case; i.e.,
the issue of constitutionality must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for resolving the issue of
constitutionality is absent, and procedural regularity would require that this suit be dismissed.


16

II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not
being entirely without discretion in the matter. Thus, adherence to the strict procedural standard
was relaxed in Tinio vs. Mina(26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons which have impelled us are the
paramount public interest involved and the proximity of the elections which will be held only a
few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him
personally is belied by the fact that several petitions for the disqualification of other candidates
for local positions based on the challenged provision have already been filed with the COMELEC
(as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of
intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is
neither well taken. The constitutional guarantee of equal protection of the laws is subject to
rational classification. If the groupings are based on reasonable and real differentiations, one
class can be treated and regulated differently from another class. For purposes of public service,
employees 65 years of age, have been validly classified differently from younger employees.
Employees attaining that age are subject to compulsory retirement, while those of younger ages
are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates should
not be more than 65 years of age at the time they assume office, if applicable to everyone, might
or might not be a reasonable classification although, as the Solicitor General has intimated, a
good policy of the law would be to promote the emergence of younger blood in our political
elective echelons. On the other hand, it might be that persons more than 65 years old may also
be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees
from government service at ages, say below 65. It may neither be reasonable to disqualify
retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who
is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him from running for the same office from which he
had retired, as provided for in the challenged provision. The need for new blood assumes
relevance. The tiredness of the retiree for government work is present, and what is emphatically
significant is that the retired employee has already declared himself tired and unavailable for the
same government work, but, which, by virtue of a change of mind, he would like to assume
again. It is for this very reason that inequality will neither result from the application of the
challenged provision. Just as that provision does not deny equal protection neither does it permit
of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly
treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal classification.
What is proscribes is a classification which is arbitrary and unreasonable. That constitutional
guarantee is not violated by a reasonable classification based upon substantial distinctions,
where the classification is germane to the purpose of the law and applies to all Chose belonging
to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606
[1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967];
Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the
17

emergence of younger blood in local governments. The classification in question being pursuant
to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the
objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The
Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of the
questioned provision. Well accepted is the rule that to justify the nullification of a law, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal
breach. Courts are practically unanimous in the pronouncement that laws shall not be declared
invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on
Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to
prescribe qualifications for one who desires to become a candidate for office provided they are
reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4
of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in
two parts. The first provides:
a. judgment of conviction jor any of the aforementioned crimes shall be conclusive
evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal principle. We are aware of the
presumption of validity that attaches to a challenged statute, of the well-settled principle that "all
reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We
are constrained to hold that this is one such clear case.
Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the
fundamental law, is not synonymous with guilt. The challenged proviso contravenes the
constitutional presumption of innocence, as a candidate is disqualified from running for public
office on the ground alone that charges have been filed against him before a civil or military
tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of
proof, no distinction is made between a person convicted of acts of dislotalty and one against
whom charges have been filed for such acts, as both of them would be ineligible to run for public
office. A person disqualified to run for public office on the ground that charges have been filed
against him is virtually placed in the same category as a person already convicted of a crime with
the penalty of arresto, which carries with it the accessory penalty of suspension of the right to
hold office during the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and therefore, may
be rebutted, yet. there is "clear and present danger" that because of the proximity of the
elections, time constraints will prevent one charged with acts of disloyalty from offering contrary
proof to overcome the prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts
rather than before an administrative body such as the COMELEC. A highly possible conflict of
findings between two government bodies, to the extreme detriment of a person charged, will
thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not
be allowed to be substituted for a judicial determination.
18

Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second paragraph
of section 4 of Batas Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby
declared valid. Said paragraph reads:
SEC. 4. Special disqualification. In addition to violation of Section 10 of Article
XII(C) of the Constitution and disqualifications mentioned in existing laws which
are hereby declared as disqualification for any of the elective officials enumerated
in Section 1 hereof, any retired elective provincial, city or municipal official, who
has received payment of the retirement benefits to which he is entitled under the
law and who shall have been 65 years of age at the commencement of the term of
office to which he seeks to be elected, shall not be qualified to run for the same
elective local office from which he has retired.
2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52
providing that "... the filing of charges for the commission of such crimes before a
civil court or military tribunal after preliminary investigation shall be prima
facie evidence of such fact", is hereby declared null and void, for being violative of
the constitutional presumption of innocence guaranteed to an accused.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.
Fernando, C.J., concurs and submits a brief separate opinion.
De Castro, J., abstain as far as petitioner Dumlao is concerned.

Separate Opinions

BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI
I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.
19

FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission
1
and People v. Vera,
2
did not constitute an
obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked.
3
While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this
Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the
philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be
too strongly stressed that a petition of this character must ever remain an orderly proceeding
that cannot be oblivious of the requisites to be complied with to justify a pronouncement on
constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of
litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor
General should be heard in protest against such neglect of rudimentary precepts. Necessarily
then, whenever objections based on refusal to abide by the procedural principles are presented,
this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of
the controlling doctrines. There are times, however, when the controversy is of such a character
that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this
Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of
the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political comeback [sic] as governor of
Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age.
4
Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is
decisive. That would be the test for its validity or lack of it. There is this relevant excerpt
from McCray v. United States:
5
"The decisions of this Court [Supreme Court of the United States]
from the beginning lend no support whatever to the assumption that the judiciary may restrain
the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted.
6
The late Chief Justice Warren, who penned the opinion in United States v.
20

O' Brien
7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about it."
8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration:
9
"It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.
10
It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction
to the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy
of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ."
11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson,
12
is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice."
13
As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so
21

many complaints filed on his desk would give in to the all-too-human propensity to take the easy
way out and to file charges, then a candidate Would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is
patently offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of governor
of his home province of Nueva Vizcaya and would in effect bar the electors of his province from
electing him to said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at the commencement of the term
of office to which he seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local official from running
for the sameelective office (of governor, in this case) previously held by him and from which he
has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly
treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the same elective office from which
he retired) but petitioner is barred from doing so (although he may run for any other lesser
office). Both are 65 and are retirees, yet one is barred from running for the office of governor.
What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has
cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya
1
(since no other case by
a former governor similarly barred by virtue of said provision can never be cited
2
). Is there not
here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and
security shall be given under the law to every person, under analogous if not Identical
circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor reasonable.
It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old
blood" retirees may continue in local governments since they are not disqualified at all to run for
any other local elective office such as from provincial governor, vice-governor, city, municipal or
district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
22

judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or "new
blood" cannot hinge on such an irrelevant question of whether or not they have received their
retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated."
3
Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had
Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a qualification
to insure a modicum of maturity 'now reduced to 21 years in the present batas),
but no maximum age has ever been imposed as a disqualification for elect public
office since the right and win of the people to elect the candidate of their choice for
any elective office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are
analogous. If law be looked upon in terms of burden or charges, those that full within a class
should be treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest."
4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to
the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for
election and places in the hands of the military and civil prosecutors a dangerous and
23

devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code.
5
Otherwise, the questioned provision would deny the bona fide candidate substantive due
process and would be grossly violative of his constitutional right of presumption of innocence
and of the above-quoted provision of the 1973 Constitution protecting candidates for public office
from any form of harassment and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a majority
in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.

Separate Opinions
BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI
I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission
1
and People v. Vera,
2
did not constitute an
obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
24

statute or presidential decree is invoked.
3
While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this
Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the
philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be
too strongly stressed that a petition of this character must ever remain an orderly proceeding
that cannot be oblivious of the requisites to be complied with to justify a pronouncement on
constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of
litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor
General should be heard in protest against such neglect of rudimentary precepts. Necessarily
then, whenever objections based on refusal to abide by the procedural principles are presented,
this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of
the controlling doctrines. There are times, however, when the controversy is of such a character
that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this
Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of
the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age.
4
Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is
decisive. That would be the test for its validity or lack of it. There is this relevant excerpt
from McCray v. United States:
5
"The decisions of this Court [Supreme Court of the United States]
from the beginning lend no support whatever to the assumption that the judiciary may restrain
the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted.
6
The late Chief Justice Warren, who penned the opinion in United States v.
O' Brien
7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
25

is unwise legislation which Congress had the undoubted power to enact and which could be re-
enacted in its exact form if the same or another legislator made a 'wiser' speech about it."
8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration:
9
"It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.
10
It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction
to the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy
of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ."
11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson,
12
is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice."
13
As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so
many complaints filed on his desk would give in to the all-too-human propensity to take the easy
way out and to file charges, then a candidate Would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is
patently offensive to the Constitution.
Hence my concurrence.

26

TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of governor
of his home province of Nueva Vizcaya and would in effect bar the electors of his province from
electing him to said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at the commencement of the term
of office to which he seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local official from running
for the sameelective office (of governor, in this case) previously held by him and from which he
has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly
treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the same elective office from which
he retired) but petitioner is barred from doing so (although he may run for any other lesser
office). Both are 65 and are retirees, yet one is barred from running for the office of governor.
What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has
cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya
1
(since no other case by
a former governor similarly barred by virtue of said provision can never be cited
2
). Is there not
here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and
security shall be given under the law to every person, under analogous if not Identical
circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor reasonable.
It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old
blood" retirees may continue in local governments since they are not disqualified at all to run for
any other local elective office such as from provincial governor, vice-governor, city, municipal or
district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or "new
blood" cannot hinge on such an irrelevant question of whether or not they have received their
retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
27

petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated."
3
Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had
Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a qualification
to insure a modicum of maturity 'now reduced to 21 years in the present batas),
but no maximum age has ever been imposed as a disqualification for elect public
office since the right and win of the people to elect the candidate of their choice for
any elective office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are
analogous. If law be looked upon in terms of burden or charges, those that full within a class
should be treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest."
4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to
the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for
election and places in the hands of the military and civil prosecutors a dangerous and
devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code.
5
Otherwise, the questioned provision would deny the bona fide candidate substantive due
28

process and would be grossly violative of his constitutional right of presumption of innocence
and of the above-quoted provision of the 1973 Constitution protecting candidates for public office
from any form of harassment and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a majority
in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.

Separate Opinions
BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI
I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission
1
and People v. Vera,
2
did not constitute an
obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked.
3
While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavour to vindicate rights safeguarded by the fundamental law. In that sense, this
Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the
philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be
too strongly stressed that a petition of this character must ever remain an orderly proceeding
29

that cannot be oblivious of the requisites to be complied with to justify a pronouncement on
constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of
litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor
General should be heard in protest against such neglect of rudimentary precepts. Necessarily
then, whenever objections based on refusal to abide by the procedural principles are presented,
this Court must rule. It would suffice if thereby the petition is dismissed for non-observance of
the controlling doctrines. There are times, however, when the controversy is of such a character
that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this
Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of
the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age.
4
Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is
decisive. That would be the test for its validity or lack of it. There is this relevant excerpt
from McCray v. United States:
5
"The decisions of this Court [Supreme Court of the United States]
from the beginning lend no support whatever to the assumption that the judiciary may restrain
the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted.
6
The late Chief Justice Warren, who penned the opinion in United States v.
O' Brien
7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit to
sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about it."
8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
30

Tuason and Co., Inc. v. Land Tenure Administration:
9
"It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.
10
It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills
certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction
to the principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy
of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ."
11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson,
12
is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice."
13
As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so
many complaints filed on his desk would give in to the all-too-human propensity to take the easy
way out and to file charges, then a candidate Would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is
patently offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which
would impose a special disqualification on petitioner Patricio Dumlao from
running for the elective local office of governor of his home province of Nueva
31

Vizcaya and would in effect bar the electors of his province from electing him to
said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits to
which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected.
To specially and peculiarly ban a 65-year old previously retired elective local official from running
for the sameelective office (of governor, in this case) previously held by him and from which he
has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly
treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the same elective office from which
he retired) but petitioner is barred from doing so (although he may run for any other lesser
office). Both are 65 and are retirees, yet one is barred from running for the office of governor.
What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has
cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya
1
(since no other case by
a former governor similarly barred by virtue of said provision can never be cited
2
). Is there not
here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and
security shall be given under the law to every person, under analogous if not Identical
circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor reasonable.
It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old
blood" retirees may continue in local governments since they are not disqualified at all to run for
any other local elective office such as from provincial governor, vice-governor, city, municipal or
district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or "new
blood" cannot hinge on such an irrelevant question of whether or not they have received their
retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated."
3
Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had
32

Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a qualification
to insure a modicum of maturity 'now reduced to 21 years in the present batas),
but no maximum age has ever been imposed as a disqualification for elect public
office since the right and win of the people to elect the candidate of their choice for
any elective office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are
analogous. If law be looked upon in terms of burden or charges, those that full within a class
should be treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest."
4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to
the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for
election and places in the hands of the military and civil prosecutors a dangerous and
devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code.
5
Otherwise, the questioned provision would deny the bona fide candidate substantive due
process and would be grossly violative of his constitutional right of presumption of innocence
and of the above-quoted provision of the 1973 Constitution protecting candidates for public office
from any form of harassment and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a majority
in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
33

is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.
Footnotes
Fernando, CJ.:
1 63 Phil. 139 (1936).
2 65 Phil. 56 (1937).
3 Cf. Sanidad, Commision on Election L-44640, October 12, 1976, 73 SCRA 333;
De la T Llana v. Election. L-47245, December 9, 1917, 80 SCRA 525; Hidalgo v.
Marcos L-17329, December 9, 1977, 80 SCRA 538; Peralta v. Commission on
Elections, L-47771, March 11, 1978, 82 SCRA 30),
4 Petition, 3-4.
5 195 US 27 (1904).
6 Ibid, 56.
7 391 US 367 (1968).
8 lbid, 383-384.
9 L-21064, February 18, 1970, 31 SCRA 413.
10 lbid, 435.
11 Ibid, 439.
12 L-26865-66, January 30, 1970, 31 SCRA 313.
13 Ibid, 318.
Teehankee, K.:
1 Petition at page 4.
2 Respondents cites in its comment (at page 15) a handful of pending cases for
disqualification of mayoral candidates.
3 Respondent's Comment, at pages 12-13.
4 E. M. Fernando: The Bill of Rights, 2nd Ed., p. 100, cit. J.M. Tuason & Co., Inc.
vs. Land Tenure Administration, 31 SCRA 413 (1970).
5 SEC. 22. Ineligibility of person found disloyal to the Government. Any person
found guilty in afinal judgment or order of a competent court or tribunal of any
crime involving disloyalty to the duly constituted Government such as rebellion,
sedition, violations of the anti-subversion and firearms laws, and crimes against
34

the national security shall not, unless restored to his full civil and political rights
in accordance with law, be eligible and his certificate of candidacy shall not be
given due course not shall the votes cast in his favor be counted. In the event
his final conviction comes after his election, he shall automatically cease in office.
(P.D. 1296, decreed February 7, 1978).

























35

Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC

G.R. No. 132922 April 21, 1998
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and
GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:
In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998,
1
we upheld the validity of
11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political
ads, except to the Commission on Elections under 90, of B.P. No. 881, the Omnibus Election
Code, with respect to print media, and 92, with respect to broadcast media. In the present case,
we consider the validity of 92 of B.P. Blg. No. 881 against claims that the requirement that radio
and television time be given free takes property without due process of law; that it violates the
eminent domain clause of the Constitution which provides for the payment of just compensation;
that it denies broadcast media the equal protection of the laws; and that, in any event, it violates
the terms of the franchise of petitioner GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an
organization of lawyers of radio and television broadcasting companies. They are suing as
citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates
radio and television broadcasting stations throughout the Philippines under a franchise granted
by Congress.
Petitioners challenge the validity of 92 on the ground (1) that it takes property without due
process of law and without just compensation; (2) that it denies radio and television broadcast
companies the equal protection of the laws; and (3) that it is in excess of the power given to the
COMELEC to supervise or regulate the operation of media of communication or information
during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers,
and registered voters.
In those cases
2
in which citizens were authorized to sue, this Court upheld their standing in
view of the "transcendental importance" of the constitutional question raised which justified the
granting of relief. In contrast, in the case at bar, as will presently be shown, petitioner's
substantive claim is without merit. To the extent, therefore, that a party's standing is determined
by the substantive merit of his case or preliminary estimate thereof, petitioner TELEBAP must be
held to be without standing. Indeed, a citizen will be allowed to raise a constitutional question
36

only when he can show that he has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the injury fairly is fairly traceable to the
challenged action; and the injury is likely to be redressed by a favorable action.
3
Members of
petitioner have not shown that they have suffered harm as a result of the operation of 92 of B.P.
Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case does
not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be precisely in
upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by
Congress of its taxing or spending power.
4
A party suing as a taxpayer must specifically show
that he has a sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he will sustain a direct injury as a result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown
that the party suing has some substantial relation to the third party, or that the third party
cannot assert his constitutional right, or that the eight of the third party will be diluted unless
the party in court is allowed to espouse the third party's constitutional claim. None of these
circumstances is here present. The mere fact that TELEBAP is composed of lawyers in the
broadcast industry does not entitle them to bring this suit in their name as representatives of the
affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates
radio and television broadcast stations in the Philippines affected by the enforcement of 92 of
B.P. Blg. 881 requiring radio and television broadcast companies to provide free air time to the
COMELEC for the use of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC
Time in connection with the 1992 presidential election and the 1995 senatorial election and that
it stands to suffer even more should it be required to do so again this year. Petitioner's allegation
that it will suffer losses again because it is required to provide free air time is sufficient to give it
standing to question the validity of 92.
5

Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90 and 92
of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the
opportunity of candidates in an election in regard to the use of mass media for political
campaigns. These statutory provisions state in relevant parts:
R.A. No. 6646
Sec. 11. Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful:
37

xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other mass media, or
any person making use of the mass media to sell or to give free of charge print space or
air time for campaign or other political purposes except to the Commission as provided
under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any elective public office
shall take a leave of absence from his work as such during the campaign period.
B.P. Blg. 881, (Omnibus Election Code)
Sec. 90. Comelec space. The Commission shall procure space in at least one newspaper
of general circulation in every province or city; Provided, however, That in the absence of
said newspaper, publication shall be done in any other magazine or periodical in said
province or city, which shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which the
newspaper is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. The commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of the
campaign. (Sec. 46, 1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for allocation
to the candidates. It will be noted that while 90 of B.P. Blg. 881 requires the COMELEC to
procure print space which, as we have held, should be paid for, 92 states that air time shall be
procured by the COMELEC free of charge.
Petitioners contend that 92 of BP Blg. 881 violates the due process clause
6
and the eminent
domain provision
7
of the Constitution by taking air time from radio and television broadcasting
stations without payment of just compensation. Petitioners claim that the primary source of
revenue of the radio and television stations is the sale of air time to advertisers and that to
require these stations to provide free air time is to authorize a taking which is not "ade
minimis temporary limitation or restraint upon the use of private property." According to
petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of one
(1) hour every morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursday
from 7:00 to 8:00 p.m. (prime time) and, in this year's elections, it stands to lose P58,980,850.00
in view of COMELEC'S requirement that radio and television stations provide at least 30 minutes
of prime time daily for the COMELEC Time.
8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television
stations, is licensed by the government. Airwave frequencies have to be allocated as there are
more individuals who want to broadcast than there are frequencies to assign.
9
A franchise is
thus a privilege subject, among other things, to amended by Congress in accordance with the
constitutional provision that "any such franchise or right granted . . . shall be subject to
amendment, alteration or repeal by the Congress when the common good so requires."
10

The idea that broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:
38

Sec. 49. Regulation of election propaganda through mass media. (a) The franchise of all
radio broadcasting and television stations are hereby amended so as to require each such
station to furnish free of charge, upon request of the Commission [on Elections], during
the period of sixty days before the election not more than fifteen minutes of prime time
once a week which shall be known as "Comelec Time" and which shall be used exclusively
by the Commission to disseminate vital election information. Said "Comelec Time" shall
be considered as part of the public service time said stations are required to furnish the
Government for the dissemination of public information and education under their
respective franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code (P.D. No.
1296), which provided:
Sec. 46. COMELEC Time. The Commission [on Elections] shall procure radio and
television time to be known as "COMELEC Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting and television stations
are hereby amended so as to require such stations to furnish the Commission radio or
television time, free of charge, during the period of the campaign, at least once but not
oftener than every other day.
Substantially the same provision is now embodied in 92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had
not been thought of as taking property without just compensation. Art. XII, 11 of the
Constitution authorizes the amendment of franchises for "the common good." What better
measure can be conceived for the common good than one for free air time for the benefit not only
of candidates but even more of the public, particularly the voters, so that they will be fully
informed of the issues in an election? "[I]t is the right of the viewers and listeners, not the right of
the broadcasters, which is paramount."
11

Nor indeed can there be any constitutional objection to the requirement that broadcast stations
give free air time. Even in the United States, there are responsible scholars who believe that
government controls on broadcast media can constitutionally be instituted to ensure diversity of
views and attention to public affairs to further the system of free expression. For this purpose,
broadcast stations may be required to give free air time to candidates in an election.
12
Thus,
Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in
regulations affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important,
government should ensure free media time for candidates. Almost all European nations
make such provisions; the United States does not. Perhaps government should pay for
such time on its own. Perhaps broadcasters should have to offer it as a condition for
receiving a license. Perhaps a commitment to provide free time would count in favor of the
grant of a license in the first instance. Steps of this sort would simultaneously promote
attention to public affairs and greater diversity of view. They would also help overcome
the distorting effects of "soundbites" and the corrosive financial pressures faced by
candidates in seeking time on the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do not own
the airwaves and frequencies through which they transmit broadcast signals and images. They
are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of
some form of public service. Thus, in De Villata v. Stanley,
14
a regulation requiring interisland
39

vessels licensed to engage in the interisland trade to carry mail and, for this purpose, to give
advance notice to postal authorities of date and hour of sailings of vessels and of changes of
sailing hours to enable them to tender mail for transportation at the last practicable hour prior
to the vessel's departure, was held to be a reasonable condition for the state grant of license.
Although the question of compensation for the carriage of mail was not in issue, the Court
strongly implied that such service could be without compensation, as in fact under Spanish
sovereignty the mail was carried free.
15

In Philippine Long Distance Telephone Company v. NTC,
16
the Court ordered the PLDT to allow
the interconnection of its domestic telephone system with the international gateway facility of
Eastern Telecom. The Court cited (1) the provisions of the legislative franchise allowing such
interconnection; (2) the absence of any physical, technical, or economic basis for restricting the
linking up of two separate telephone systems; and (3) the possibility of increase in the volume of
international traffic and more efficient service, at more moderate cost, as a result of
interconnection.
Similarly, in the earlier case of PLDT v. NTC,
17
it was held:
Such regulation of the use and ownership of telecommunications systems is in the
exercise of the plenary police power of the State for the promotion of the general welfare.
The 1987 Constitution recognizes the existence of that power when it provides:
Sec. 6. The use of property bears a social function, and all economic agents
shall contribute to the common good. Individuals and private groups,
including corporations, cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands (Article XII).
The interconnection which has been required of PLDT is a form of "intervention" with
property rights dictated by "the objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of
communications in nation building . . . and to ensure that all users of the public
telecommunications service have access to all other users of the service wherever they
may be within the Philippines at an acceptable standard of service and at reasonable
cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing objective is the
common good. The NTC, as the regulatory agency of the State, merely exercised its
delegated authority to regulate the use of telecommunications networks when it decreed
interconnection.
In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
stations.
18
It would be strange if it cannot even require the licensees to render public service by
giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production
of television programs involves large expenditure and requires the use of equipment for which
huge investments have to be made. The dissent cites the claim of GMA Network that the grant of
free air time to the COMELEC for the duration of the 1998 campaign period would cost the
company P52,380,000, representing revenue it would otherwise earn if the air time were sold to
advertisers, and the amount of P6,600,850, representing the cost of producing a program for the
COMELEC Time, or the total amount of P58,980,850.
40

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is "finished product" which, it is said, become the
property of the company, like oil produced from refining or similar natural resources after
undergoing a process for their production. But air time is not owned by broadcast companies. As
held in Red Lion Broadcasting Co. v. F.C.C.,
19
which upheld the right of a party personally
attacked to reply, "licenses to broadcast do not confer ownership of designated frequencies, but
only the temporary privilege of using them." Consequently, "a license permits broadcasting, but
the license has no constitutional right to be the one who holds the license or to monopolize a
radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment
which prevents the Government from requiring a licensee to share his frequency with others and
to conduct himself as a proxy or fiduciary with obligations to present those views and voices
which are representative of his community and which would otherwise, by necessity, be barred
from the airwaves."
20
As radio and television broadcast stations do not own the airwaves, no
private property is taken by the requirement that they provide air time to the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air
lanes themselves 'are not property because they cannot be appropriated for the benefit of any
individual.'" (p. 5) That means neither the State nor the stations own the air lanes. Yet the
dissent also says that "The franchise holders can recover their huge investments only by selling
air time to advertisers." (p. 13) If air lanes cannot be appropriated, how can they be used to
produce air time which the franchise holders can sell to recover their investment? There is a
contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a
program and it is for such items as "sets and props," "video tapes," "miscellaneous (other rental,
supplies, transportation, etc.)," and "technical facilities (technical crew such as director and
cameraman as well as 'on air plugs')." There is no basis for this claim. Expenses for these items
will be for the account of the candidates. COMELEC Resolution No. 2983, 6(d) specifically
provides in this connection:
(d) Additional services such as tape-recording or video-taping of programs, the preparation
of visual aids, terms and condition thereof, and consideration to be paid therefor may be
arranged by the candidates with the radio/television station concerned. However, no
radio/television station shall make any discrimination among candidates relative to
charges, terms, practices or facilities for in connection with the services rendered.
It is unfortunate that in the effort to show that there is taking of private property worth millions
of pesos, the unsubstantiated charge is made that by its decision the Court permits the "grand
larceny of precious time," and allows itself to become "the people's unwitting oppressor." The
charge is really unfortunate. In Jackson v. Rosenbaun,
21
Justice Holmes was so incensed by the
resistance of property owners to the erection of party walls that he was led to say in his original
draft, "a statute, which embodies the community's understanding of the reciprocal rights and
duties of neighboring landowners, does not need to invoke the penalty larceny of the police power
in its justification." Holmes's brethren corrected his taste, and Holmes had to amend the passage
so that in the end it spoke only of invoking "the police power."
22
Justice Holmes spoke of the
"petty larceny" of the police power. Now we are being told of the "grand larceny [by means of the
police power] of precious air time."
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA
Network, Inc. a franchise for the operation of radio and television broadcasting stations. They
argue that although 5 of R.A. No. 7252 gives the government the power to temporarily use and
41

operate the stations of petitioner GMA Network or to authorize such use and operation, the
exercise of this right must be compensated.
The cited provision of. R.A. No. 7252 states:
Sec. 5. Right of Government. A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or
disturbance of peace and order, to temporarily take over and operate the stations of the
grantee, to temporarily suspend the operation of any station in the interest of public
safety, security and public welfare, or to authorize the temporary use and operation
thereof by any agency of the Government, upon due compensation to the grantee, for the
use of said stations during the period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc., This is not so. Under
92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television
stations but only the allocation of air time to the candidates for the purpose of ensuring, among
other things, equal opportunity, time, and the right to reply as mandated by the Constitution.
23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg.
881, which is said to have amended R.A. No. 7252, actually antedated it.
24
The provision of 92
of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, 4 of
the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render
"adequate public service time" implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is to
enable the government to communicate with the people on matters of public interest. Thus, R.A.
No. 7252 provides:
Sec. 4. Responsibility to the Public. The grantee shall provide adequate public service
time to enable the Government, through the said broadcasting stations, to reach the
population on important public issues; provide at all times sound and balanced
programming; promote public participation such as in community programming; assist in
the functions of public information and education; conform to the ethics of honest
enterprise; and not use its station for the broadcasting of obscene and indecent language,
speech, act or scene, or for the dissemination of deliberately false information or wilful
misrepresentation, or to the detriment of the public interest, or to incite, encourage, or
assist in subversive or treasonable acts. (Emphasis added).
It is noteworthy that 40 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should "be considered as part of the public service time said
stations are required to furnish the Government for the dissemination of public information and
education under their respective franchises or permits." There is no reason to suppose that 92
of B.P. Blg. 881 considers the COMELEC Time therein provided to be otherwise than as a public
service which petitioner is required to render under 4 of its charter (R.A. No. 7252). In sum, B.P.
Blg. 881, 92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty
voluntarily assumed by petitioner in accepting a public grant of privilege.
Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, 2 of which states:
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time", effective February 10, 1998 for candidates for President, Vice-President and
42

Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998. (Emphasis added).
This is because the amendment providing for the payment of "just compensation" is invalid,
being in contravention of 92 of B.P. Blg. 881 that radio and television time given during the
period of the campaign shall be "free of charge." Indeed, Resolution No. 2983 originally provided
that the time allocated shall be "free of charge," just as 92 requires such time to be given "free of
charge." The amendment appears to be a reaction to petitioner's claim in this case that the
original provision was unconstitutional because it allegedly authorized the taking of property
without just compensation.
The Solicitor General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an
administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since
2 of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring free air
time and that "theoretically the COMELEC can demand all of the air time of such
stations."
25
Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters
radio and television time. What they claim is that because of the breadth of the statutory
language, the provision in question is susceptible of "unbridled, arbitrary and oppressive
exercise."
26

The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates "within the area of coverage" of a particular radio or television broadcaster so that it
cannot, for example, procure such time for candidates outside that area. At what time of the day
and how much time the COMELEC may procure will have to be determined by it in relation to
the overall objective of informing the public about the candidates, their qualifications and their
programs of government. As stated in Osmea v. COMELEC, the COMELEC Time provided for in
92, as well as the COMELEC Space provided for in 90, is in lieu of paid ads which candidates
are prohibited to have under 11(b) of R.A. No. 6646. Accordingly, this objective must be kept in
mind in determining the details of the COMELEC Time as well as those of the COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if 92 were so detailed as
to leave no room for accommodation of the demands of radio and television programming. For
were that the case, there could be an intrusion into the editorial prerogatives of radio and
television stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide
free air time. They contend that newspapers and magazines are not similarly required as, in fact,
in Philippine Press Institute v. COMELEC,
27
we upheld their right to the payment of just
compensation for the print space they may provide under 90.
43

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to
the same treatment under the free speech guarantee of the Constitution as the print media.
There are important differences in the characteristics of the two media, however, which justify
their differential treatment for free speech purposes. Because of the physical limitations of the
broadcast spectrum, the government must, of necessity, allocate broadcast frequencies to those
wishing to use them. There is no similar justification for government allocation and regulation of
the print media.
28

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees
or licensees. The reason for this is that, as already noted, the government spends public funds
for the allocation and regulation of the broadcast industry, which it does not do in the case of the
print media. To require the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, "[n]ecessarily . . . the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print
media."
29

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are
low income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials broadcast over the airwaves
reach every person of every age, persons of varying susceptibilities to persuasion, persons
of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or
offensive speech would he difficult to monitor or predict. The impact of the vibrant speech
is forceful and immediate. Unlike readers of the printed work, the radio audience has
lesser opportunity to cogitate, analyze, and reject the utterance. 30
Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the
law has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No. 6646 (ban
on paid political ads) should be invalidated would pave the way for a return to the old regime
where moneyed candidates could monopolize media advertising to the disadvantage of
candidates with less resources. That is what Congress tried to reform in 1987 with the
enactment of R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in
light of the recent failure of interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-
C, 4 of the Constitution does not include the power to prohibit. In the first place, what the
COMELEC is authorized to supervise or regulate by Art. IX-C, 4 of the Constitution,
31
among
other things, is the use by media of information of their franchises or permits, while what
44

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


45

Separate Opinions
VITUG, J., separate opinion;
I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the
instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate
exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it
is, primordially, a business enterprise, it nevertheless, also addresses in many ways certain
imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz,
Constitutional Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which
petitioner claims to be a contract which may not be impaired, the United States Supreme Court
opined:
. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants
of property and franchises may be made if they do not impair the supreme authority to
make laws for the right government of the State; but no Legislature can curtail the power
of its successors to make such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise,i.e., (a) that its utilization is demanded by the interests of the public, and (b) that
the means employed are reasonably necessary, and not unduly oppressive, for the
accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from
itself procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes
that in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation. The
power of eminent domain is a power inherent in sovereignty and requires no constitutional
provision to give it force. It is the rightful authority which exists in every sovereignty, to control
and regulate those rights of a public nature which pertain to its citizens in common, and to
appropriate and control individual property for the public benefit as the public safety, necessity,
convenience or welfare demand.
1
The right to appropriate private property to public use,
however, lies dormant in the state until legislative action is had, pointing out the occasions, the
modes, the conditions and agencies for its appropriation.
2

Section 92 of BP 881 states
Sec. 92. Comelec Time The Comelec shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio and television stations are hereby attended so as to
provide radio and television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution
2983-A, the pertinent provision of which reads as follows:
46

Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent
in the State, the sovereign right to appropriate property has never been understood to include
taking property for public purposes without the duty and responsibility of ordering compensation
to the individual whose property has been sacrificed for the good of the community. Hence,
Section 9 Article III of the 1987 Constitution which reads "No private property shall be taken for
public use without just compensation," gives us two limitations on the power of eminent domain:
(1) the purpose of taking must be for public use and (2) just compensation must be given to the
owner of the private property.
There is, of course, no question that the taking of the property in the case at bar is for public
use, i.e. to ensure that air time is allocated equally among the candidates, however, there is no
justification for the taking without payment of just compensation. While Resolution No. 2983-A
has provided that just compensation shall be paid for the 30 minutes of prime time granted by
the television stations to respondent Comelec, we note that the resolution was
passed pursuant to Section 92 of BP 881 which mandates that radio and television time be
provided to respondent Comelec free of charge. Since the legislative intent is the controlling
element in determining the administrative powers, rights, privileges and immunities
granted,
3
respondent Comelec may, at any time, despite the resolution passed, compel television
and radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation
which cannot be validly done. Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction of property interest to promote
public welfare or interest which involves no compensable taking. When the power of eminent
domain, however, is exercised, property interest is appropriated and applied to some public
purpose, necessitating compensation therefor. Traditional distinctions between police power and
the power of eminent domain precluded application of both powers at the same time in the same
subject.
4
Hence, in the case of City of Baguio v. NAWASA,
5
the Court held that a law requiring
the transfer of all municipal waterworks systems to NAWASA in exchange for its assets of
equivalent value involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise of police power,
on the other hand, is noxious or intended for noxious purpose and, consequently, is not
compensable. Police power proceeds from the principle 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. Rights of property, like all other
social and conventional rights, are subject to 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.
6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation.
Citing the cases of Berman v. Parker
7
and Penn Central Transportation Co. v. New York
City
8
where owners of the Grand Central Terminal who were not allowed to construct a multi-
story building to preserve a historic landmark were allowed certain compensatory rights to
47

mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc.
case held that measures prescribing retention limits for landowners under the Agrarian Reform
Law involved the exercise of police power for the regulation of private property in accordance with
the constitution. And, where to carry out the regulation, it became necessary to deprive owners
of whatever lands they may own in excess of the maximum area allowed, the Court held that
there was definitely a taking under the power of eminent domain for which payment of just
compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read
in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and
television stations during the campaign period to respondent Comelec, there is an exercise of
police power for the regulation of property in accordance with the Constitution. To the extent
however that Sec 92 of BP 881 mandates that airtime be provided free of charge to respondent
Comelec to be allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal v. Mahon,
9
Justice
Holmes laid down the limits of police power in this wise," The general rule is that while property
may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a
taking."
While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor
total destruction of value is essential to taking and it is usually in cases where title remains with
the private owner that inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable taking. A regulation which deprives
any person of the profitable use of his property constitutes a taking and entitles him to
compensation unless the invasion of rights is so slight as to permit the regulation to be justified
under the police power. Similarly, a police regulation which unreasonably restricts the right to
use business property for business purposes, amounts to taking of private property and the
owner may recover therefor.
10
It is also settled jurisprudence that acquisition of right of way
easement falls within the purview of eminent domain.
11

While there is no taking or appropriation of title to, and possession of the expropriated property
in the case at bar, there is compensable taking inasmuch as them is a loss of the earnings for
the airtime which the petitioner-intervenors are compelled to donate. It is a loss which, to
paraphrase Philippine Press Institute v. Comelec,
12
could hardly be considered "de minimis" if we
are to take into account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec,
13
we had occasion to state that newspapers
and other print media are not compelled to donate free space to respondent Comelec inasmuch
as this would be in violation of the constitutional provision that no private property shall be
taken for public use without just compensation. We find no cogent reason why radio and
television stations should be treated considering that their operating expenses as compared to
those of the newspaper and other print media publishers involve considerably greater amount of
financial resources.
The fact that one needs a franchise from government to establish a radio and television station
while no license is needed to start a newspaper should not be made a basis for treating
broadcast media any differently from the print media in compelling the former to "donate" airtime
to respondent Comelec. While no franchises and rights are granted except under the condition
that it shall be subject to amendment, alteration, or repeal by the Congress when the common
good so requires,
14
this provides no license for government to disregard the cardinal rule that
corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
48

ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code
1
which
compels all broadcast stations in the country "to provide radio and television time, free of charge,
during the period of the [election] campaigns," which the Commission on Elections shall allocate
"equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this
legal provision is unconstitutional because it confiscates private property without due process of
law and without payment of just compensation, and denies broadcast media equal protection of
the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,
2
this Court ruled that print
media companies cannot be required to donate advertising space, free of charge, to the Comelec
for equal allocation among candidates, on the ground that such compulsory seizure of print
space is equivalent to a proscribed taking of private property for public use without payment of
just compensation.
3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente
V. Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the temporary privilege of using
them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service." In other words,
the majority theorizes that the forced donation of air time to the Comelec is a means by which
the State gets compensation for the grant of the franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises
and regulates their proper use. Thus, other than collecting supervision or regulatory fees which it
already does, it cannot exact any onerous and unreasonable post facto burdens from the
franchise holders, without due process and just compensation. Moreover, the invocation of the
"common good" does not excuse the unbridled and clearly excessive taking of a franchisee's
property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by
the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's humongous
investments amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence,
a forced donation of broadcast time is in actual fact a taking of such investments without due
process and without payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
49

"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely contends
that "broadcasting, whether by radio or by television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are more individuals who want to broadcast
than there are frequencies to assign. A franchise is thus a privilege subject among other thing . .
. to amendment, alteration or repeal by the Congress when the common good so requires."
4
True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's prerogative,
subsisting in the hands of a subject.'"
5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by
the State," it is silent as to the ownership of the airwaves and frequencies. It is then reasonable
to say that no one owns them. Like the air we breathe and the sunshine that sustains life, the air
lanes themselves "are not property because they cannot be appropriated for the benefit of any
individual,"
6
but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies, the State in
the exercise of its police power allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning
to such companies their respective frequencies. The purpose is not to grant them the privilege of
using public property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law to
institutionalize this regulation of the air lanes. To cover the administrative cost of supervision
and regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum
Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA
Network, Inc., for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC
"supervision and regulation fee," as borne out by its Audited Consolidated Financial Statements
for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature
and purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the
air lanes) together with concomitant private rights, becomes property of the grantee.
7
It is
regarded by law precisely as other property and, as any other property, it is safeguarded by the
Constitution from arbitrary revocation or impairment.
8
The rights under a franchise can be
neither taken nor curtailed for public use or purpose, even by the government as the grantor,
without payment of just compensation
9
as guaranteed under our fundamental law.
10
The fact
that the franchise relates to public use or purpose does not entitle the state to abrogate or impair
its use without just compensation.
11

The majority further claims that, constitutionally,
12
franchises are always subject to alteration
by Congress, "when the common good so requires." The question then boils down to this: Does
Section 92 of the Omnibus Election Code constitute a franchise modification for the "common
good," or an "unlawful taking of private property"? To answer this question, I go back
50

to Philippine Press Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court
held:
13

To compel print media companies to donate "Comelec space" of the dimensions specified
in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as
often as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimistemporary limitation or
restraint upon the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed.
(Emphasis in original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and
recurrence of the "donation" of air time that Comelec can demand from radio and TV stations.
There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of
a station. The fact that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth
that makes possible oppressive or capricious application" of the statutory provisions, the
line dividing the valid from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the government muscle."
16

51

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable.
In their Memorandum,
17
petitioners allege (and this has not been rebutted at all) that during the
1992 election period, GMA Network has been compelled to donate P22,498.560 worth of
advertising revenues; and for the current election period, GMA stands to lose a staggering
P58,980,850. Now, clearly and most obviously, these amounts are not inconsequential or de
minimis. They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation of public
utilities must not have the effect of depriving an owner of his property without due process of
law, nor of confiscating or appropriating private property without due process of law, nor of
confiscating or appropriating private property without just compensation, nor of limiting or
prescribing irrevocably vested rights or privileges lawfully acquired under a charter or franchise."
The power to regulate is subject to these constitutional limits.
18
Consequently, "rights under a
franchise cannot be taken or damaged for a public use without the making of just compensation
therefor."
19
To do so is clearly beyond the power of the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air lanes and
that, by its grant of a franchise, it should thus receive compensation for the use of said
frequencies. I say, however, that by remitting unreasonably high "annual fees and charges,"
which as earlier stated amounts to millions of pesos yearly, television stations are in effect
paying rental fees for the use (not just the regulation) of said frequencies. Except for the annual
inspection conducted by the NTC, no other significant service is performed by the government in
exchange for the enormous fees charged the stations. Evidently, the sums collected by the NTC
exceed the cost of services performed by it, and are therefore more properly understood as rental
fees for the use of the frequencies granted them.
20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is
no basis for the government, through the Comelec, to compel unbridled donation of the air time
of said companies without due process and without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier like oil, minerals and coal
once the license to exploit and develop them is granted to a private corporation, the
government can no longer arbitrarilyconfiscate or appropriate them gratis under the guise of
serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter
considered the property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay compensation
therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise or privilege
which occasions its acquisition of private property in the form of broadcast facilities and its
production of air time. These properties are distinct from its franchise.
21
The 1996 Audited
Consolidated Balance Sheet of Petitioner GMA, on file with the SEC, shows that its "property and
equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487.
22
This does not include the cost of producing the programs to be
broadcast, talent fees and other aspects of broadcasting. In their Memorandum,
23
petitioners
52

explain that the total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge
investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just
compensation.
It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo,
an unbridled taking of private property may be allowed. If such appropriation were only, to use
the words of PPI vs. Comelec, de minimis or insignificant say, one hour once or twice a month
perhaps, it can be justified by the promotion of the "common good." But a taking in the
gargantuan amount of over P58 million from Petitioner GMA for the 1998 election season alone is
an actual seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of private
property.
What makes the taking of air time even more odious is its ex post facto nature. When the
broadcast companies acquired their franchises and set up their expensive facilities, they were
not informed of the immensity of the donations they are now compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the
specific "route" or "channel" by which this medium reaches the TV sets of the general public.
Technically, therefore, the wholesale alteration by Section 92 of all broadcast franchise would
appear unrelated to the compelled donations. While the express modification is in the franchise,
what Section 92 really does is that it takes away the end product of the facilities which were set
up through the use of the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the
need for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very
radio broadcasting and television station operating under franchise shall grant the Commission,
upon payment of just compensation, at least thirty (30) minutes of prime time daily to be known
as 'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very
agency tasked by the Constitution to administer elections, the majority still insists on an
arbitrary seizure of precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise
24
is no argument for seizing its
profits. The State cannot rob the rich to feed the poor in the guise of promoting the "common
good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from GMA is huge
and exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the
air time required from "every radio and television station" in the country in the magnitude stated
in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has
required payment of print media ads but, in this case, compels broadcast stations to donate their
end product on a massive scale. The simplistic distinction given that radio and TV stations are
mere grantees of government franchises while newspaper companies are not does not justify
the grand larceny of precious air time. This is a violation not only of private property, but also of
the constitutional right to equal protection itself. The proffered distinction between print and
broadcast media is too insignificant and too flimsy to be a valid justification for the
53

discrimination. The print and broadcast media are equal in the sense that both derive their
revenues principally from paid ads. They should thus be treated equally by the law in respect of
such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of property without due process.
25

2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner.
26

3. No one, regardless of social or financial status, shall be denied equal protection of the law.
27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely
on the nebulous legal theory that broadcast stations are mere recipients of state-granted
franchises which can be altered or withdrawn anytime or otherwise burdened with post
facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the
private entrepreneurs' billion-peso investments and the broadcast professionals' grit and toil in
transforming these invisible franchises into merchandisable property; and conveniently forgets
the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,
28
against which these constitutional rights to property were in
the first place written, prudently agrees to respect them and to pay adequate compensation for
their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government.
I am afraid that by this unfortunate Decision, the majority, in this instance, has instead
converted this honorable and majestic Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.

Separate Opinions
VITUG, J., separate opinion;
I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the
instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate
exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it
is, primordially, a business enterprise, it nevertheless, also addresses in many ways certain
imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz,
Constitutional Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which
petitioner claims to be a contract which may not be impaired, the United States Supreme Court
opined:
54

. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants
of property and franchises may be made if they do not impair the supreme authority to
make laws for the right government of the State; but no Legislature can curtail the power
of its successors to make such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise,i.e., (a) that its utilization is demanded by the interests of the public, and (b) that
the means employed are reasonably necessary, and not unduly oppressive, for the
accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from
itself procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes
that in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation. The
power of eminent domain is a power inherent in sovereignty and requires no constitutional
provision to give it force. It is the rightful authority which exists in every sovereignty, to control
and regulate those rights of a public nature which pertain to its citizens in common, and to
appropriate and control individual property for the public benefit as the public safety, necessity,
convenience or welfare demand.
1
The right to appropriate private property to public use,
however, lies dormant in the state until legislative action is had, pointing out the occasions, the
modes, the conditions and agencies for its appropriation.
2

Section 92 of BP 881 states
Sec. 92. Comelec Time The Comelec shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio and television stations are hereby attended so as to
provide radio and television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution
2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent
in the State, the sovereign right to appropriate property has never been understood to include
taking property for public purposes without the duty and responsibility of ordering compensation
to the individual whose property has been sacrificed for the good of the community. Hence,
Section 9 Article III of the 1987 Constitution which reads "No private property shall be taken for
public use without just compensation," gives us two limitations on the power of eminent domain:
55

(1) the purpose of taking must be for public use and (2) just compensation must be given to the
owner of the private property.
There is, of course, no question that the taking of the property in the case at bar is for public
use, i.e. to ensure that air time is allocated equally among the candidates, however, there is no
justification for the taking without payment of just compensation. While Resolution No. 2983-A
has provided that just compensation shall be paid for the 30 minutes of prime time granted by
the television stations to respondent Comelec, we note that the resolution was
passed pursuant to Section 92 of BP 881 which mandates that radio and television time be
provided to respondent Comelec free of charge. Since the legislative intent is the controlling
element in determining the administrative powers, rights, privileges and immunities
granted,
3
respondent Comelec may, at any time, despite the resolution passed, compel television
and radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation
which cannot be validly done. Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction of property interest to promote
public welfare or interest which involves no compensable taking. When the power of eminent
domain, however, is exercised, property interest is appropriated and applied to some public
purpose, necessitating compensation therefor. Traditional distinctions between police power and
the power of eminent domain precluded application of both powers at the same time in the same
subject.
4
Hence, in the case of City of Baguio v. NAWASA,
5
the Court held that a law requiring
the transfer of all municipal waterworks systems to NAWASA in exchange for its assets of
equivalent value involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise of police power,
on the other hand, is noxious or intended for noxious purpose and, consequently, is not
compensable. Police power proceeds from the principle 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. Rights of property, like all other
social and conventional rights, are subject to reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restraits 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.
6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation.
Citing the cases of Berman v. Parker
7
and Penn Central Transportation Co. v. New York
City
8
where owners of the Grand Central Terminal who were not allowed to construct a multi-
story building to preserve a historic landmark were allowed certain compensatory rights to
mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc.
case held that measures prescribing retention limits for landowners under the Agrarian Reform
Law involved the exercise of police power for the regulation of private property in accordance with
the constitution. And, where to carry out the regulation, it became necessary to deprive owners
of whatever lands they may own in excess of the maximum area allowed, the Court held that
there was definitely a taking under the power of eminent domain for which payment of just
compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read
in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and
television stations during the campaign period to respondent Comelec, there is an exercise of
police power for the regulation of property in accordance with the Constitution. To the extent
however that Sec 92 of BP 881 mandates that airtime be provided free of charge to respondent
Comelec to be allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal v. Mahon,
9
Justice
56

Holmes laid down the limits of police power in this wise," The general rule is that while property
may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a
taking."
While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor
total destruction of value is essential to taking and it is usually in cases where title remains with
the private owner that inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable taking. A regulation which deprives
any person of the profitable use of his property constitutes a taking and entitles him to
compensation unless the invasion of rights is so slight as to permit the regulation to be justified
under the police power. Similarly, a police regulation which unreasonably restricts the right to
use business property for business purposes, amounts to taking of private property and the
owner may recover therefor.
10
It is also settled jurisprudence that acquisition of right of way
easement falls within the purview of eminent domain.
11

While there is no taking or appropriation of title to, and possession of the expropriated property
in the case at bar, there is compensable taking inasmuch as them is a loss of the earnings for
the airtime which the petitioner-intervenors are compelled to donate. It is a loss which, to
paraphrase Philippine Press Institute v. Comelec,
12
could hardly be considered "de minimis" if we
are to take into account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec,
13
we had occasion to state that newspapers
and other print media are not compelled to donate free space to respondent Comelec inasmuch
as this would be in violation of the constitutional provision that no private property shall be
taken for public use without just compensation. We find no cogent reason why radio and
television stations should be treated considering that their operating expenses as compared to
those of the newspaper and other print media publishers involve considerably greater amount of
financial resources.
The fact that one needs a franchise from government to establish a radio and television station
while no license is needed to start a newspaper should not be made a basis for treating
broadcast media any differently from the print media in compelling the former to "donate" airtime
to respondent Comelec. While no franchises and rights are granted except under the condition
that it shall be subject to amendment, alteration, or repeal by the Congress when the common
good so requires,
14
this provides no license for government to disregard the cardinal rule that
corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code
1
which
compels all broadcast stations in the country "to provide radio and television time, free of charge,
during the period of the [election] campaigns," which the Commission on Elections shall allocate
"equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this
legal provision is unconstitutional because it confiscates private property without due process of
law and without payment of just compensation, and denies broadcast media equal protection of
the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,
2
this Court ruled that print
media companies cannot be required to donate advertising space, free of charge, to the Comelec
57

for equal allocation among candidates, on the ground that such compulsory seizure of print
space is equivalent to a proscribed taking of private property for public use without payment of
just compensation.
3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente
V. Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the temporary privilege of using
them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service." In other words,
the majority theorizes that the forced donation of air time to the Comelec is a means by which
the State gets compensation for the grant of the franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises
and regulates their proper use. Thus, other than collecting supervision or regulatory fees which it
already does, it cannot exact any onerous and unreasonable post facto burdens from the
franchise holders, without due process and just compensation. Moreover, the invocation of the
"common good" does not excuse the unbridled and clearly excessive taking of a franchisee's
property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by
the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's humongous
investments amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence,
a forced donation of broadcast time is in actual fact a taking of such investments without due
process and without payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely contends
that "broadcasting, whether by radio or by television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are more individuals who want to broadcast
than there are frequencies to assign. A franchise is thus a privilege subject among other thing . .
. to amendment, alteration or repeal by the Congress when the common good so requires."
4
True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's prerogative,
subsisting in the hands of a subject.'"
5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by
the State," it is silent as to the ownership of the airwaves and frequencies. It is then reasonable
58

to say that no one owns them. Like the air we breathe and the sunshine that sustains life, the air
lanes themselves "are not property because they cannot be appropriated for the benefit of any
individual,"
6
but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies, the State in
the exercise of its police power allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning
to such companies their respective frequencies. The purpose is not to grant them the privilege of
using public property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law to
institutionalize this regulation of the air lanes. To cover the administrative cost of supervision
and regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum
Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA
Network, Inc., for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC
"supervision and regulation fee," as borne out by its Audited Consolidated Financial Statements
for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature
and purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the
air lanes) together with concomitant private rights, becomes property of the grantee.
7
It is
regarded by law precisely as other property and, as any other property, it is safeguarded by the
Constitution from arbitrary revocation or impairment.
8
The rights under a franchise can be
neither taken nor curtailed for public use or purpose, even by the government as the grantor,
without payment of just compensation
9
as guaranteed under our fundamental law.
10
The fact
that the franchise relates to public use or purpose does not entitle the state to abrogate or impair
its use without just compensation.
11

The majority further claims that, constitutionally,
12
franchises are always subject to alteration
by Congress, "when the common good so requires." The question then boils down to this: Does
Section 92 of the Omnibus Election Code constitute a franchise modification for the "common
good," or an "unlawful taking of private property"? To answer this question, I go back
to Philippine Press Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court
held:
13

To compel print media companies to donate "Comelec space" of the dimensions specified
in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as
often as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or
restraint upon the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed.
(Emphasis in original)
59

"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and
recurrence of the "donation" of air time that Comelec can demand from radio and TV stations.
There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of
a station. The fact that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth
that makes possible oppressive or capricious application" of the statutory provisions, the
line dividing the valid from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the government muscle."
16

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable.
In their Memorandum,
17
petitioners allege (and this has not been rebutted at all) that during the
1992 election period, GMA Network has been compelled to donate P22,498.560 worth of
advertising revenues; and for the current election period, GMA stands to lose a staggering
P58,980,850. Now, clearly and most obviously, these amounts are not inconsequential or de
minimis. They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation of public
utilities must not have the effect of depriving an owner of his property without due process of
law, nor of confiscating or appropriating private property without due process of law, nor of
confiscating or appropriating private property without just compensation, nor of limiting or
prescribing irrevocably vested rights or privileges lawfully acquired under a charter or franchise."
The power to regulate is subject to these constitutional limits.
18
Consequently, "rights under a
franchise cannot be taken or damaged for a public use without the making of just compensation
therefor."
19
To do so is clearly beyond the power of the legislature to regulate.
60

II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air lanes and
that, by its grant of a franchise, it should thus receive compensation for the use of said
frequencies. I say, however, that by remitting unreasonably high "annual fees and charges,"
which as earlier stated amounts to millions of pesos yearly, television stations are in effect
paying rental fees for the use (not just the regulation) of said frequencies. Except for the annual
inspection conducted by the NTC, no other significant service is performed by the government in
exchange for the enormous fees charged the stations. Evidently, the sums collected by the NTC
exceed the cost of services performed by it, and are therefore more properly understood as rental
fees for the use of the frequencies granted them.
20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is
no basis for the government, through the Comelec, to compel unbridled donation of the air time
of said companies without due process and without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier like oil, minerals and coal
once the license to exploit and develop them is granted to a private corporation, the
government can no longer arbitrarilyconfiscate or appropriate them gratis under the guise of
serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter
considered the property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay compensation
therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise or privilege
which occasions its acquisition of private property in the form of broadcast facilities and its
production of air time. These properties are distinct from its franchise.
21
The 1996 Audited
Consolidated Balance Sheet of Petitioner GMA, on file with the SEC, shows that its "property and
equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487.
22
This does not include the cost of producing the programs to be
broadcast, talent fees and other aspects of broadcasting. In their Memorandum,
23
petitioners
explain that the total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge
investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just
compensation.
It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo,
an unbridled taking of private property may be allowed. If such appropriation were only, to use
the words of PPI vs. Comelec, de minimis or insignificant say, one hour once or twice a month
perhaps, it can be justified by the promotion of the "common good." But a taking in the
gargantuan amount of over P58 million from Petitioner GMA for the 1998 election season alone is
an actual seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of private
property.
61

What makes the taking of air time even more odious is its ex post facto nature. When the
broadcast companies acquired their franchises and set up their expensive facilities, they were
not informed of the immensity of the donations they are now compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the
specific "route" or "channel" by which this medium reaches the TV sets of the general public.
Technically, therefore, the wholesale alteration by Section 92 of all broadcast franchise would
appear unrelated to the compelled donations. While the express modification is in the franchise,
what Section 92 really does is that it takes away the end product of the facilities which were set
up through the use of the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the
need for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very
radio broadcasting and television station operating under franchise shall grant the Commission,
upon payment of just compensation, at least thirty (30) minutes of prime time daily to be known
as 'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very
agency tasked by the Constitution to administer elections, the majority still insists on an
arbitrary seizure of precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise
24
is no argument for seizing its
profits. The State cannot rob the rich to feed the poor in the guise of promoting the "common
good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from GMA is huge
and exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the
air time required from "every radio and television station" in the country in the magnitude stated
in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has
required payment of print media ads but, in this case, compels broadcast stations to donate their
end product on a massive scale. The simplistic distinction given that radio and TV stations are
mere grantees of government franchises while newspaper companies are not does not justify
the grand larceny of precious air time. This is a violation not only of private property, but also of
the constitutional right to equal protection itself. The proffered distinction between print and
broadcast media is too insignificant and too flimsy to be a valid justification for the
discrimination. The print and broadcast media are equal in the sense that both derive their
revenues principally from paid ads. They should thus be treated equally by the law in respect of
such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of property without due process.
25

2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner.
26

3. No one, regardless of social or financial status, shall be denied equal protection of the law.
27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely
on the nebulous legal theory that broadcast stations are mere recipients of state-granted
62

franchises which can be altered or withdrawn anytime or otherwise burdened with post
facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the
private entrepreneurs' billion-peso investments and the broadcast professionals' grit and toil in
transforming these invisible franchises into merchandisable property; and conveniently forgets
the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,
28
against which these constitutional rights to property were in
the first place written, prudently agrees to respect them and to pay adequate compensation for
their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government.
I am afraid that by this unfortunate Decision, the majority, in this instance, has instead
converted this honorable and majestic Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.
Footnotes
1 Reiterated in Kapisanan ng mga Broadkaster sa Pilipinas (Negros Occidental
Chapter) v. COMELEC, (res.), G.R. No. 132749, April 2, 1998.
2 Emergency Powers Cases [Araneta v. Dinglasan], 84 Phil. 368 (1949), Iloilo Palay
and Corn Planters Ass'n v. Feliciano, 121 Phil. 358 (1965); Philconsa v. Gimenez,
122 Phil. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 (1991).
3 Lawyers League for a Better Philippines v. Aquino, G.R. Nos. 73748, 73972 and
73990, May 22, 1986; In re Bermudez, 145 SCRA 160 (1986); Tatad v. Garcia, Jr.,
243 SCRA 436, 473 (1995) (Mendoza, J., concurring).
4 CONST., ART. VI, 24-25 and 29.
5 In Valmonte v. Philippine Charity Sweepstakes Office, (res), G.R. No. 78716,
Sept. 22, 1987, we held that the party bringing a suit challenging the
constitutionality of a law must show "not only that the law is invalid, but also that
he has sustained or is in immediate danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute complained of."
(Emphasis added)
6 Art. III, 1 provides: "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."
7 Id., 9 provides: "Private Property shall not be taken for public use without just
compensation.
8 Memorandum for Petitioners, pp. 21-28.
63

9 Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA 628 (1985); Red Lion
Broadcasting Corp. Co. v. FCC, 395 U.S. 367, 23 L. Ed2d 371 (1969). See The
Radio Act (Act No. 3846, as amended), 3(c) & (d).
10 Art, XII, 11.
11 Red Lion Broadcasting Corp. v. FCC, 395 U.S. at 390, 23 L.Ed.2d at 389.
12 E.g., OWEN M. FISS, THE IRONY OF THE FREE SPEECH 2-3 (1996) ("Surely
the state can be an oppressor, but it may also be a source of freedom . . . In some
instances, instrumentalities of the state will try to stifle free and open debate, and
the First Amendment is the tried-and-true mechanism that stops or prevents such
abuse of state power. In other instances, however, the state may have to further
the robustness of public debate . . . It may have to allocate public resources . . . to
those whose voices would not otherwise be heard in the public square."); CASS R.
SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 50-51 (1993)
("The idea that threats to speech stem from the government is undoubtedly
correct, but as usually understood, it is far too simple. Sometimes threats come
from what seems to be the private sphere, and, much more fundamentally, these
threats could not be made without legal entitlements that enable some private
actors but not others to speak and to be heard . . . [Government regulation] may
therefore be necessary.")
13 CASS R. SUNSTEIN, id., at 85 (emphasis added).
14 32 Phil. 541 (1915).
15 The Court said:
Considerable expenditures of public money have been made in the past and
continue to be made annually for the purpose of securing the safety of vessels
plying in Philippine waters. [Here the Court enumerated many government
facilities to make the coastwise transportation safe.] Can it be fairly contended
that a regulation is unreasonable which requires vessels licensed to engage in the
interisland trade, in whose behalf the public funds are so lavishly expended, to
hold themselves in readiness to carry the public mails when duly tendered for
transportation, and to give such reasonable notice of their sailing hours as will
insure the prompt dispatch of all mails ready for delivery at the hours thus
designated? Id., at 552.
16 241 SCRA 486 (1995).
17 190 SCRA 717, 734 (1990) (italics by the Court).
18 For example, under the Radio Act (Act No. 3846, as amended), the government
performs, inter alia, the following functions:
Sec. 3. The Secretary of Public Works and Communications is hereby empowered,
to regulate the construction or manufacture, possession, control, sale and transfer
or radio transmitters or transceivers (combination transmitter-receiver) and the
establishment, use, the operation of all radio stations and of all form of radio
communications and transmissions within the Philippines. In addition to the
above he shall have the following specific powers and duties;
64

xxx xxx xxx
(c) He shall assigns call letter and assign frequencies for each station licensed by
him for each station established by virtue of a franchise granted by the Congress
of the Philippines and specify the stations to which each of such frequencies may
be used;
(d) He shall promulgate rules and regulations to prevent and eliminate
interference between stations and carry out the provisions of this Act and the
provisions of the International Radio Regulations:Provided, however, That changes
in the frequencies or in the authorized power, or in the character of omitted
signals, or in the type of the power supply, or in the hours of operations of any
licensed stations, shall not be made without first giving the station license a
hearing.
19 395 U.S. at 394, 23 L.Ed.2d at 391, quoting 47 U.S.C. 301.
20 395 U.S. at 389, 23 L.Ed.2d at 388-389.
21 260 U.S. 22, 67 L.Ed. 107 (1922).
22 260 U.S. at 31, 67 L.Ed. at 112. HOLMES-LASKI LETTERS 457, quoted in P.
FREUND, A. SUTHERLAND, M. HOWE AND B. BROWN, CONSTITUTION LAW,
CASES AND OTHER PROBLEMS 1095 (1978).
23 Art. IX-C, 4.
24 B.P. Blg. 881 took effect on Dec. 3, 1985, whereas R.A. No. 7252 took effect on
March 20, 1992.
25 Memorandum for Petitioners, p. 17.
26 Ibid.
27 244 SCRA 272 (1995).
28 In the United States, because of recognition of these differences in the
characteristics of news media, it has been held that broadcast stations may be
required to give persons subjected to personal attack during discussion of an
important public issue the right to reply. (Red Lion Broadcasting Corp. v. FCC,
395 U.S. 367, 23 L.Ed.2d 371 (1969), but similar "right of reply" is inapplicable to
newspapers. It was pointed out that a statute providing for such right "operates as
a command in the same sense as a statute or regulation forbidding [the
newspaper] to publish specified matter . . . [It] exacts a penalty on the basis of the
content of a newspaper. The first phase of the penalty [is] exacted in terms of the
cost in printing and in taking up space that could be devoted to other material the
newspaper may have preferred to print . . . [Faced with such a penalty] editors
might well conclude that the safe course is to avoid controversy. [Thus, the
government-enforced] right of access inescapably "dampens the vigor and limits
the variety of public debate." (Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241,
4L.Ed.2d 730 (1974))
29 Eastern Broadcasting (DYRE) Corporation v. Dans, Jr., 137 SCRA at 635.
65

30 Id., at 635-636.
31 This provision reads: "The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all franchises or permits for
the operation of transportation and other utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space, and the rights
to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections."
ROMERO, J., dissenting;
1 Cooley, Thomas, II A Treatise on Constitutional Limitations, pp. 1110, [1927].
2 Supra, at p. 1119.
3 Horack, Frank, Sutherland Statutory Construction, p. 279 [1939].
4 Association of Small Landowners of the Philippines, Inc. vs. Secretary of
Agrarian Reform, 175 SCRA 343 [1989].
5 108 Phil. 144.
6 See Cooley, Thomas II Constitutional Limitations, 8th Ed, pp. 1224 [1927].
7 348 US 1954 (1964).
8 438 US 104.
9 260 US 393.
10 Cooley, Thomas, II Constitutional Limitations, pp. 1161 [1927].
11 Napocor v. CA, 129 SCRA 665 [1984]; Garcia v. CA, 102 SCRA 597 [1981];
Republic v. PLDT, 26 SCRA 620 [1969].
12 244 SCRA 272 [1995].
13 Supra.
14 See Section 11, Article XII of the 1987 Constitution.
PANGANIBAN, J., dissenting;
1 92 of BP Blg. 881 (Omnibus Election Code) provides:
Sec. 92. Comelec time. The Commission shall procure radio and television time
to be known as "Comelec Time" which shall be allocated equally and impartially
among the candidates within the area of coverage of all radio and television
stations. For this purpose, the franchise of all radio broadcasting and television
66

stations are hereby amended so as to provide radio or television time, free of
charge, during the period of the campaign.
2 244 SCRA 272, May 22, 1995, per Feliciano, J.
3 9, Art. III of the Constitution provides:
Sec. 9. Private property shall not be taken for public use without just
compensation.
4 Pp. 6-7, Decision in GR 132922.
5 Finch, adopted by Blackstone in State v. Twin Village Water Co., 98 Me 214, 56
A 763 (1903), cited in Radio Communication of the Philippines, Inc. vs. National
Telecommunications Commission, 150 SCRA 450, 457, May 29, 1987. Also in Lim
vs. Pacquing, 240 SCRA 649, 678, January 27, 1995.
6 Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the
Philippines, p. 2, Vol. II, (1992); citing 3 Planiol & Ripert 59.
7 36 Am Jur 2d, 4 Franchises.
8 Ibid., 5.
9 Ibid., citing Los Angeles v. Los Angeles Gas & Electric Corp. 251 US 32, 64 L
ed. 121, 40 S Ct 76; United States v. Brooklyn Union Gas Co. (CA 2 NY) 168 F 2d
391; South California Gas Co. v. Los Angeles, 50 Cal 2d 713, 329 P 2d
289. Also in English Ave. Coach Corp. v. New York, 286 NY 84, 35 NE 2d 907.
10 See footnote no. 3.
11 36 Am Jur 2d, 8 Franchises, citing Grand Turk Western R. Co. v. South Bend,
227 US 544, 57 L ed. 633, 33 S Ct 303; Wilcox Consolidated Gas Co., 212 US 19,
53 L ed. 382, 29 S Ct 192; Wilmington & W.R. Co. v. Reid, 13 Wall (US) 264, 20 L
ed. 568; Arkansas State Highway Commission v. Arkansas Power & Light Co., 231
Ark 307, 330 SW 2d 77; and others.
12 11, Art. XII of the Constitution provides:
Sec. 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or
to corporations or associations organized under the laws of the Philippines at least
sixty per centum of whose capital is owned by such citizens, nor shall such
franchise, certificate or authorization be exclusive in character or for a longer
period than fifty years. Neither shall any such franchise or right be granted except
under the condition that is shall be subject to amendment, alteration, or repeal by
the Congress when the common good so requires. The State shall encourage
equity participation in public utilities by the general public. The participation of
foreign investors in the governing body of any public utility enterprise shall be
limited to their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens of the
Philippines.
13 244 SCRA at p. 279.
67

14 Blo Urrquar Adiong v. Comelec, 207 SCRA 712, 719, March 31, 1992, per
Gutierrez, J., cited in Memorandum for Petitioners, p. 15.
15 Gonzales vs. Comelec, 27 SCRA 835, 871, April 18, 1969, per Fernando, J.
16 People vs. Nazario, 165 SCRA 186, 195, August 31, 1988, per Sarmiento, J.
17 See pp. 20-27 for the detailed computation.
18 Agbayani, Aguendo F., Commentaries and Jurisprudence on the Commercial
Laws of the Philippines, p. 560, 1993 ed.; citing Fisher vs. Yangco Steamship
Company, 31 Phil 1, (1915), referring to Chicago etc. R. Co. vs. Minnesota, 134
U.S. 418, Minneapolis Eastern R. Co. vs. Minnesota, 134 U.S. 467, Chicago etc. R.
Co. vs. Wellman, 143 U.S. 339, Smyth vs. Arnes, 169 U.S. 466, 524, Henderson
Bridge Co. vs. Henderson City, 173 U.S. 592, 614.
19 36 Am Jur 2d 732; citing Los Angeles v. Los Angeles Gas & E. Corp. 251 U.S.
32, 64 L ed 121, 40 S Ct 76; United States v. Brooklyn Union Gas Co. (CA2 NY)
168 F2d 391; Southern California Gas Co. v. Los Angeles, 50 Cal 2d 713, 329 P2d
289, cert den 359 US 907, 3 L ed 2d 572, 79 S Ct 583.
20 Apart from paying "supervision fees," broadcast media also pay normal taxes,
imposts, fees, assessments and other government charges.
21 36 Am Jur 2d pp. 724 and 727; citing Gordon v. Appeal Tax Ct. 3 How (US)
133, 11 L ed. 529; Bridgeport v. New York & N.H.R. Co., 36 Conn 255;
Consolidated Gas Co. v. Baltimore, 101 Md 541, 61 A 532.
22 In the case of ABS-CBN Broadcasting Corporation, the amount is much larger:
P3,196,912,000, per its Audited Consolidated Financial Report as of December 31,
1996, on file with the SEC.
23 At p. 20. See also Annex B of said Memorandum.
24 This is not to say that all broadcast networks are profitable. A comparative
study of their Financial Statements on file with the SEC shows that a majority are
not really profitable.
25 1, Art. III of the Constitution.
26 9, Art. III of the Constitution.
27 1, Art. III of the Constitution.
28 As personified in this case by the Comelec.



68

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 128096 January 20, 1999
PANFILO M. LACSON, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL
PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP,
IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent.
ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.:
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further
defines the jurisdiction of the Sandiganbayan is being challenged in this petition for
prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo
Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with
the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground
of lack of jurisdiction.
The antecedents of this case, as gathered from the parties' pleadings and documentary proofs,
are as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be members of the
Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a
spate of bank robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon
City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by
Chieff Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was
composed of police officers from the Traffic Management Command (TMC) led by petitioner-
intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission
Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson;
Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the
Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent
Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually
transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out
between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto
formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs,
Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal
liability all the PNP officers and personal allegedly involved in May 18, 1995 incident, with a
finding that the said incident was a legitimate police operation.
1

69

However, a review board led by Overall Deputy Ombudsman Francisco Villa modified the
Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-
six (26) respondents, including herein petitioner and intervenors. The recommendation was
approved by the Ombudsman except for the withdrawal of the charges against Chief Supt.
Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in
eleven (11) information for murder
2
before the Sandiganbayan's Second Division, while
intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same
informations as accessories after-in-the-fact.
Upon motion by all the accused in the 11 information,
3
the Sandiganbayan allowed them to file a
motion for reconsideration of the Ombudsman's action.
4

After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended
informations
5
before the Sandiganbayan, wherein petitioner was charged only as an accessory,
together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused
6
was dropped
from the case.
On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the
Sandiganbayan, asserting that under the amended informations, the cases fall within the
jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic
Act No. 7975.
7
They contend that the said law limited the jurisdiction of the Sandiganbayan to
cases where one or more of the "principal accused" are government officials with Salary Grade
(SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or
higher. The highest ranking principal accused in the amended informations has the rank of only
a Chief Inspector, and none has the equivalent of at least SG 27.
Thereafter, in a Resolution
8
dated May 8, 1996 (promulgated on May 9, 1996), penned by
Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and
Garchitorena dissenting,
9
the Sandiganbayan admitted the amended information and ordered
the cases transferred to the Quezon City Regional Trial Court which has original and exclusive
jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief
Superintendent or higher.
On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that
the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of
the accused.
While these motions for reconsideration were pending resolution, and even before the issue of
jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill
No. 2299
10
and No. 1094
11
(sponsored by Representatives Edcel C. Lagman and Lagman and
Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844
12
(sponsored by Senator
Neptali Gonzales), were introduced in Congress, defining expanding the jurisdiction of the
Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the
Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2
(paragraphs a and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No. 8249
13
by the President of
the Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution
14
denying the
motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution
dated May 8, 1996."
70

On the same day
15
the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution,
the pertinent portion of which reads:
After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it,
but before Justice de Leon. Jr. rendered his concurring and dissenting opinion,
the legislature enacted Republic Act 8249 and the President of the Philippines
approved it on February 5, 1997. Considering the pertinent provisions of the new
law, Justices Lagman and Demetriou are now in favor of granting, as they are now
granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has
already done so in his concurring and dissenting opinion.
xxx xxx xxx
Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M.
Lacson, and that trial has not yet begun in all these cases in fact, no order of
arrest has been issued this court has competence to take cognizance of these
cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the
court admitted the Amended Informations in these cases by the unanimous vote
of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and
decide the cases
16
(Empahasis supplied)
Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7
thereof which provides that the said law "shall apply to all cases pending in any court over which
trial has not begun as to the approval hereof." Petitioner argues that:
a) The questioned provisions of the statute were introduced by the authors thereof
in bad faith as it was made to precisely suit the situation in which petitioner's
cases were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby
violating his right to procedural due process and the equal protection clause of the
Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine
(9) months the resolution of a pending incident involving the transfer of the cases
to the Regional Trial Court, the passage of the law may have been timed to
overtake such resolution to render the issue therein moot, and frustrate the
exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975)
b) Retroactive application of the law is plan from the fact that it was again made to
suit the peculiar circumstances in which petitioner's cases were under, namely,
that the trial had not yet commenced, as provided in Section 7, to make certain
that those cases will no longer be remanded to the Quezon City Regional Trial
Court, as the Sandiganbayan alone should try them, thus making it an ex post
facto legislation and a denial of the right of petitioner as an accused in Criminal
Case Nos. 23047-23057 to procedural due process.
c) The title of the law is misleading in that it contains the aforesaid "innocuous"
provisions in Sections 4 and 7 which actually expands rather than defines the old
Sandiganbayan law (RA 7975), thereby violating the one-title one-subject
requirement for the passage of statutes under Section 26 (1), Article VI of the
Constitution.
17

For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No.
8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the
introduction of Section 4 and 7 in said statute impressed upon it the character of a class
71

legislation and an ex-post facto statute intended to apply specifically to the accused in the
Kuratong Baleleng case pending before the Sandiganbayan.
18
They further argued that if their
case is tried before the Sandiganbayan their right to procedural due process would be violated as
they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired
under R.A. 7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support
of the constitutionality of the challenged provisions of the law in question and praying that both
the petition and the petition-in-intervention be dismissed.
This Court then issued a Resolution
19
requiring the parties to file simultaneously within a
nonextendible period of ten (10) days from notice thereof additional memoranda on the question
of whether the subject amended informations filed a Criminal Case Nos. 23047-23057
sufficiently allege the commission by the accused therein of the crime charged within the
meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive
original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of the Philippines,
filed the required supplemental memorandum within the nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of constitutionality, and to
justify its nullification there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative one.
20
The burden of proving the invalidity of the law lies with those
who challenge it. That burden, we regret to say, was not convincingly discharged in the present
case.
The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973
Constitution, which provides:
Sec. 5. The Batasang Pambansa shall create a special court, to be known as
Sandiganbayan, which shall have jurisdiction over criminal and civil cases
involving graft and corrupt practices and such other offenses committed by public
officers and employees including those in government-owned or controlled
corporations, in relation to their office as may be determined by law.
The said special court is retained in the new (1987) Constitution under the following provisions
in Article XI, Section 4:
Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue
to function and exercise its jurisdiction as now or hereafter may be provided by
law.
Pursuant to the constitutional mandate, Presidential Decree No. 1486
21
created the
Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order,
were enacted: P.D. No. 1606,
22
Section 20 of Batas Pambansa Blg. 123,
23
P.D. No. 1860,
24
P.D.
No. 1861,
25
R.A. No. 7975,
26
and R.A. No. 8249.
27
Under the latest amendments introduced by
Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases:
Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:
Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
72

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Titile VII, Book II of the Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade "27" and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineers, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city
department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all
officers of higher rank;
(e) Officers of the Philippines National Police while occupying the
position of provincial director and those holding the rank of senior
superintendent or higher.
(f) City of provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees or managers of government-
owned or controlled corporations, state universities or educational
institutions or foundations;
(2) Members of Congress or officials thereof classified as-Grade "27" and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice
to the provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under
the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in Subsection a of this
section in relation to their office.
73

c. Civil and criminal cases filed pursuant to and connection with Executive Orders
Nos. 1,2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to
salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or
military and PNP officers mentioned above, exclusive original jurisdiction thereof
shall be vested in the proper regional trial court, metropolitan trial court,
municipal trial court, and municipal circuit trial court, as the case may be,
pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as
amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders of regional trial courts whether in the exercise of
their own original jurisdiction or of their appellate jurisdiction as herein provided.
The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo warranto, arising or
that may arise in cases filed or which may be filed under Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may hereafter
promulgate, relative to appeals/petitions for review to the Court of Appeals, shall
apply to appeals and petitions for review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme
Court, the Office of the Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in cases filed pursuant to Executive
Order Nos. 1, 2, 14, and 4-A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employee, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees in the proper courts which shall exercise exclusive
jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 8249 states:
Sec. 7. Transitory provision This act shall apply to all cases pending in any
court over which trial has not begun as of the approval hereof. (Emphasis
supplied)
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides:
Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is
hereby further amended to read as follows:
Sec 4. Jurisdiction The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
74

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the principal
accused are officials occupying the following positions in the government, whether
in a permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade "27" and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineer, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city
department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all
officers of higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees, or managers of government-
owned or controlled corporations, state universities or educational
institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade "27" and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice
to the provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under
the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and employees
mentioned in Subsection a of this section in relation to their office.
c. Civil and criminal cases files pursuant to and in connection with Executive
Order Nos. 1, 2, 14, and 4-A.
75

In cases where none of the principal accused are occupying positions
corresponding to salary Grade "27" or higher, as prescribed in the said Republic
Act 6758, or PNP officers occupying the rank of superintendent or higher, or their
equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial
court, metropolitan trial court, municipal trial court, and municipal circuit trial
court, as the case may be, pursuant to their respective jurisdictions as provided in
Batas Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from
the final judgment, resolutions or orders of regular court where all the accused are
occupying positions lower than grade "27," or not otherwise covered by the
preceding enumeration.
xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees in the proper courts which shall have exclusive
jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 7975 reads:
Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not
begun in the Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused"
appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due
to this deletion of the word "principal" that the parties herein are at loggerheads over the
jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that
the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases
since none of the principal accused under the amended information has the rank of
Superintendent
28
or higher. On the other hand, the Office of the Ombudsman, through the
Special Prosecutor who is tasked to represent the People before the Supreme Court except in
certain cases,
29
contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive
original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense
committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act),
(b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code (the law on bribery),
30
(d) Executive Order Nos. 1, 2, 14, and 14-A, issued in
1986 (sequestration cases),
31
or (e) other offenses or felonies whether simple or complexed with
other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public
official or employee
32
holding any of the positions enumerated in paragraph a of Section 4; and
(3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are being charged with murder which is a
felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional
offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to
"other offenses or felonies whether simple or complexed with other crimes committed by the
public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to
their office. "The phrase" other offenses or felonies" is too broad as to include the crime of
murder, provided it was committed in relation to the accused's officials functions. Thus, under
76

said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or
rank of the offender that is, whether he is one of those public officers or employees
enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the
same Section 4 do not make any reference to the criminal participation of the accused public
officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A.
8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention
the criminal participation of the public officer as a requisite to determine the jurisdiction of the
Sandiganbayan.
Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal
protection of the law
33
because its enactment was particularly directed only to the Kuratong
Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete
evidence and convincing argument were presented to warrant a declaration of an act of the entire
Congress and signed into law by the highest officer of the co-equal executive department as
unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who
challenges the law must present proof of arbitrariness.
34

It is an established precept in constitutional law that the guaranty of the equal protection of the
laws is not violated by a legislation based on reasonable classification. The classification is
reasonable and not arbitrary when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equally to all members of the same class,
35

all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of
constitutionality and reasonable of the questioned provisions. The classification between those
pending cases involving the concerned public officials whose trial has not yet commence and
whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction
under R.A. 8249, as against those cases where trial had already started as of the approval of the
law, rests on substantial distinction that makes real differences.
36
In the first instance, evidence
against them were not yet presented, whereas in the latter the parties had already submitted
their respective proofs, examined witnesses and presented documents. Since it is within the
power of Congress to define the jurisdiction of courts subject to the constitutional
limitations,
37
it can be reasonably anticipated that an alteration of that jurisdiction would
necessarily affect pending cases, which is why it has to privide for a remedy in the form of a
transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7
placed them under a different category from those similarly situated as them. Precisely,
paragraph a of Section 4 provides that it shall apply to "all case involving" certain public officials
and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to
petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong
Baleleng cases. The transitory provision does not only cover cases which are in the
Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of
those affected by the law. Moreover, those cases where trial had already begun are not affected
by the transitory provision under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised on what is
perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya
38
for their
participation in the passage of the said provisions. In particular, it is stressed that the Senator
77

had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases
during the hearings conducted on the matter by the committee headed by the Senator. Petitioner
further contends that the legislature is biased against him as he claims to have been selected
from among the 67 million other Filipinos as the object of the deletion of the word "principal" in
paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A.
8249.
39
R.A 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and
by about 250 Representatives, and was separately approved by the Senate and House of
Representatives and, finally, by the President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during
the committee hearings, the same would not constitute sufficient justification to nullify an
otherwise valid law. Their presence and participation in the legislative hearings was deemed
necessary by Congress since the matter before the committee involves the graft court of which
one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its
plenary legislative powers, is particularly empowered by the Constitution to invite persons to
appear before it whenever it decides to conduct inquiries in aid of legislation.
40

Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to
the Kuratong Baleleng cases constitutes an ex post facto law
41
for they are deprived of their right
to procedural due process as they can no longer avail of the two-tiered appeal which they had
allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v.
Bull,
42
an ex post facto law is one
(a) which makes an act done criminal before the passing of the law
and which was innocent when committed, and punishes such
action; or
(b) which aggravates a crime or makes it greater than when it was
committed; or
(c) which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed.
(d) which alters the legal rules of evidence and recieves less or
different testimony that the law required at the time of the
commission of the offense on order to convict the defendant.
43

(e) Every law which, in relation to the offense or its consequences,
alters the situation of a person to his disadvantage.
44

This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only but
in effect imposes a penalty or deprivation of a right which when
done was lawful;
(g) deprives a person accused of crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of a amnesty.
45

78

Ex post facto law, generally, prohibits retrospectively of penal laws.
46
R.A. 8249 is not penal law.
It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts
of the Legislature which prohibit certain acts and establish penalties for their violations;
47
or
those that define crimes, treat of their nature, and provide door their punishment.
48
R.A 7975,
which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and
other procedural matters, has been declared by the Court as not a penal law, but clearly a
procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of
all kinds can properly administer justice.
49
Not being a penal law, the retroactive application of
R.A. 8249 cannot be challenged as unconstitutional.
Petitioner's and entervenors' contention that their right to a two-tiered appeal which they
acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The
same contention has already been rejected by the court several times
50
considering that the right
to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is not included in the prohibition
against ex post facto laws.
51
R.A. 8249 pertains only to matters of procedure, and being merely
an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out
a penalty and, therefore, does not come within the prohibition.
52
Moreover, the law did not alter
the rules of evidence or the mode of trial.
53
It has been ruled that adjective statutes may be
made applicable to actions pending and unresolved at the time of their passage.
54

In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to
review questions of law.
55
On the removal of the intermediate review of facts, the Supreme Court
still has the power of review to determine if he presumption of innocence has been convincing
overcome.
56

Another point. The challenged law does not violate the one-title-one-subject provision of the
Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the
Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The
expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not
have to be expressly stated in the title of the law because such is the necessary consequence of
the amendments. The requirement that every bill must only have one subject expressed in the
title
57
is satisfied if the title is comprehensive enough, as in this case, to include subjects related
to the general purpose which the statute seeks to achieve.
58
Such rule is liberally interpreted
and should be given a practical rather than a technical construction. There is here sufficient
compliance with such requirement, since the title of R.A. 8249 expresses the general subject
(involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended)
and all the provisions of the law are germane to that general subject.
59
The Congress, in
employing the word "define" in the title of the law, acted within its power since Section 2, Article
VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion
the jurisdiction of various courts.
60

There being no unconstitutional infirmity in both the subject amendatory provision of Section 4
and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249,
we shall now determine whether under the allegations in the Informations, it is the
Sandiganbayan or Regional Trial Court which has jurisdictions over the multiple murder case
against herein petitioner and entervenors.
The jurisdiction of a court is defined by the Constitution or statute. The elements of that
definition must appear in the complaint or information so as to ascertain which court has
jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined
by the allegations in the complaint or informations,
61
and not by the evidence presented by the
parties at the trial.
62

79

As stated earlier, the multiple murder charge against petitioner and intervenors falls under
Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be
committed by the offender in relation to his office in order for the Sandiganbayan to have
jurisdiction over it.
63
This jurisdictional requirement is in accordance with Section 5, Article XIII
of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over
criminal cases committed by the public officers and employees, including those in goverment-
owned or controlled corporations, "in relation to their office as may be determined by law." This
constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section
4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now
or hereafter may be provided by law.
The remaining question to be resolved then is whether the offense of multiple murder was
committed in relation to the office of the accussed PNP officers.
In People vs. Montejo,
64
we held that an offense is said to have been committed in relation to the
office if it (the offense) is "intimately connected" with the office of the offender and perpetrated
while he was in the performance of his official functions.
65
This intimate relation between the
offense charged and the discharge of official duties "must be alleged in the informations."
66

As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised
Rules of Court mandates:
Sec. 9 Couse of accusation The acts or omissions complied of as constituting
the offense must be stated in ordinary and concise language without repetition not
necessarily in the terms of the statute defining the offense, but in such from as is
sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment.
(Emphasis supplied)
As early as 1954 we pronounced that "the factor that characterizes the charge is the actual
recital of the facts."
67
The real nature of the criminal charge is determined not from the caption
or preamble of the informations nor from the specification of the provision of law alleged to have
been violated, they being conclusions of law, but by the actual recital of facts in the complaint or
information.
68

The noble object or written accusations cannot be overemphasized. This was explained in U.S. v.
Karelsen: 69
The object of this written accusations was First; To furnish the accused with
such a descretion of the charge against him as will enable him to make his
defense and second to avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause and third, to inform the court of
the facts alleged so that it may decide whether they are sufficient in law to support
a conviction if one should be had. In order that the requirement may be
satisfied, facts must be stated, not conclusions of law. Every crime is made up of
certain acts and intent these must be set forth in the complaint with reasonable
particularly of time, place, names (plaintiff and defendant) and circumstances. In
short, the complaint must contain a specific allegation of every
fact andcircumstance necessary to constitute the crime charged. (Emphasis
supplied)
It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he
is presumed to have no indefendent knowledge of the facts that constitute the offense."
70

80

Applying these legal principles and doctrines to the present case, we find the amended
informations for murder against herein petitioner and intervenors wanting of specific factual
averments to show the intimate relation/connection between the offense charged and the
discharge of official function of the offenders.
In the present case, one of the eleven (11) amended informations
71
for murder reads:
AMENDED INFORMATIONS
The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby
accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T.
VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G.
DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2
VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C.
CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF
SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT.
PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO
A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES,
SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP.
CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2
NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2 ALEJANDRO G.
LIWANAG of the crime of Murder as defined and penalize under Article 248 of the
Revised Penal Code committed as follows
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City
Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF
INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR
INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE
ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O.
AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public
and official positions as officers and members of the Philippine National Police and
committing the acts herein alleged in relation to their public office, conspiring with
intent to kill and using firearms with treachery evident premeditation and taking
advantage of their superior strenghts did then and there willfully unlawfully and
feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds
which caused his instantaneous death to the damage and prejudice of the heirs of
the said victim.
That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP,
CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR.,
SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP.
GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO
ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S.
BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in relation to
office as officers and members of the Philippine National Police are charged herein
as accessories after-the-fact for concealing the crime herein above alleged by
among others falsely representing that there where no arrest made during
the read conducted by the accused herein at Superville Subdivision, Paranaque,
Metro Manila on or about the early dawn of May 18, 1995.
CONTRARY LAW.
While the above-quoted information states that the above-named principal accused committed
the crime of murder "in relation to their public office, there is, however, no specific allegation of
81

facts that the shooting of the victim by the said principal accused was intimately related to the
discharge of their official duties as police officers. Likewise, the amended information does not
indicate that the said accused arrested and investigated the victim and then killed the latter
while in their custody.
Even the allegations concerning the criminal participation of herein petitioner and intevenors as
among the accessories after-the-facts, the amended information is vague on this. It is alleged
therein that the said accessories concelead "the crime herein-above alleged by, among others,
falsely representing that there were no arrests made during the raid conducted by the accused
herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18,
1995." The sudden mention of the "arrests made during the raid conducted by the accused"
surprises the reader. There is no indication in the amended information that the victim was one
of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly
conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the
immediately preceding paragraph of the amended information, the shooting of the victim by the
principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and
shooting happened in the two places far away from each other is puzzling. Again, while there is
the allegation in the amended information that the said accessories committed the offense "in
relation to office as officers and members of the (PNP)," we, however, do not see the intimate
connection between the offense charged and the accused's official functions, which, as earlier
discussed, is an essential element in determining the jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularly as will reasonably
indicate the exact offense which the accused is alleged to have committed in relation to his office
was, sad to say, not satisfied. We believe that the mere allegation in the amended information
that the offense was committed by the accused public officer in relation to his office is not
sufficient. That phrase is merely a conclusion between of law, not a factual avernment that
would show the close intimacy between the offense charged and the discharge of the accused's
official duties.
In People vs. Magallanes,
72
where the jurisdiction between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in the
complaint or information and not by the result of evidence after trial.
In (People vs) Montejo (108 Phil 613 (1960), where the amended information
alleged
Leroy S. Brown City Mayor of Basilan City, as such, has organized
groups of police patrol and civilian commandoes consisting of
regular policeman and . . . special policemen appointed and
provided by him with pistols and higher power guns and then
established a camp . . . at Tipo-tipo which is under his command . .
. supervision and control where his co-defendants were stationed
entertained criminal complaints and conducted the corresponding
investigations as well as assumed the authority to arrest and detain
person without due process of law and without bringing them to the
proper court, and that in line with this set-up established by said
Mayor of Basilan City as such, and acting upon his orders his co-
defendants arrested and maltreated Awalin Tebag who denied in
consequence thereof.
we held that the offense charged was committed in relation to the office of the
accused because it was perpetrated while they were in the performance, though
82

improper or irregular of their official functions and would not have been
committed had they not held their office, besides, the accused had no personal
motive in committing the crime thus, there was an intimate connection between
the offense and the office of the accused.
Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in
the court below do not indicate that the accused arrested and investigated the
victims and then killed the latter in the course of the investigation. The
informations merely allege that the accused for the purpose of extracting or
extortin the sum of P353,000.00 abducted, kidnapped and detained the two
victims, and failing in their common purpose they shot; and killed the said
victims. For the purpose of determining jurisdiction, it is these allegations that shall
control, and not the evidence presented by the prosecution at the trial.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation
to public office "does not appear in the information, which only signifies that the said phrase is
not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific
factual allegations in the information that would indicate the close intimacy between the
discharge of the accused's official duties and the commission of the offense charged, in order to
qualify the crime as having been committed in relation to public office.
Consequently, for failure to show in the amended informations that the charge of murder was
intimately connected with the discharge of official functions of the accused PNP officers, the
offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive
original jurisdiction of the Regional Trial Court,
73
not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The
Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The
Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple
murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over
the said cases.1wphi1.nt
SO ORDERED.
Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.
Footnotes
1 Rollo, p. 43.
2 Docketed as Criminal Cases Nos. 23047 to 23057, Annex "B", Petition; Rollo, pp.
32-34, 44.
3 Then motion states that they have been deprived of their right to file respective
motion for reconsideration of the Ombudsman's final resolution.
4 Annex "C," Petition Sandiganbayan Order dated November 27, 1995, Rollo,
pp. 37-38.
5 Annex "D," Petition, Rollo, pp. 39-41.
6 Inspector Alvarez.
83

7 Entitled "An Act To Strengthen The Functional And Structural Organization Of
The Sandiganbayan. Amending For That Purpose Presidential Decree 1606, As
Amended.
8 Annex "E," Petition, Rollo, p. 42.
9 Presiding Justice Garchitorena and Justice De Leon were designated as special
members of the Division pursuant to SB Administrative Order No. 121-96 dated
March 26, 1996.
10 Annex "F," Petition, Rollo, pp. 113-123.
11 Annex "F-1," Petition, Rollo, pp. 124-134.
12 Annex "G," Petition, Rollo, pp. 135-145.
13 Annex "A," Petition, Rollo, pp. 28-31. The law is entitled, "AN ACT FURTHER
DEFINING THE JURISDICTION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED, PROVIDING
FUNDS THEREFOR, AND FOR OTHER PURPOSES." It took effect on February 25,
1997.
14 Rollo, pp. 162-171.
15 March 5, 1997.
16 Rollo, pp. 214, 216-219.
17 Petition, pp. 8-9, Rollo, pp. 10-11.
18 Petition-In-intervention, p. 9; Rollo, p. 236.
19 Dated December 15, 1998.
20 Justice Ricardo J. Francisco in Padilla v. Court of Appeals and People, 269
SCRA 402, citingPeralta v. COMELEC, 82 SCRA 30.
21 Took effect on June 11, 1978; See Republic v. Asuncion, 231 SCRA 229 [1994].
22 Took effect on December 10, 1978; Republic v. Asuncion, ibid.
23 Sec. 20 Jurisdiction in ciminal cases. Regional Trial Courts shall exercise
original jurisdiction in all criminal cases not within the exclusive jurisdiction of
any court, tribunal or body, except those now falling under the exclusive and
corcurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively
taken cognizance of by the latter. (See also Natividad vs. Felix, 229 SCRA 685-68
[1994]. )
24 Took effect on January 14, 1983; Republic v. Asuncion, ibid.
25 Took effect on March 23, 1983; Republic v. Asuncion, ibid.
84

26 Approved on March 30, 1995 and took effect on May 16, 1995; People v.
Magallanes, 249 SCRA 224 (1995); Azarcon vs. Sandiganbayan, 268 SCRA 757
[1997].
27 Approved on February 5, 1995.
28 This is the rank stated in paragraph c (second par.). Section 2 of R.A. 7975,
while in paragraph a (1) (e) of said Section 2, the rank is "chief superintendent" or
higher.
29 Sec. 4 P.D. 1606, as amended by R.A. 7975 and 8249.
30 Items (a), (b), and (c) are taken from paragraph a, Section 4 of R.A. 8249.
31 Paragraphs c, Section 4, R.A. 8249.
32 The Sandiganbayan has jurisdiction over a private individual when the
complaint charges him either as a co-principal, accomplice or accessory of a
public officer or employee who has been charged with a crime within its
jurisdiction.
33 No person shall be deprived of life, liberty and property without due process of
law nor shall any person be denied the equal protection of the laws (Section 1,
Article III, 1987 Constitution).
34 Sison, Jr. v. Ancheta, 130 SCRA 164.
35 Association of Small Landowners in the Philippines v. Secretary of Agrarian
Reform, 175 SCRA 343; People v. Cayat, 68 Phil. 12 (1939); People v. Vera, 65
Phil. 56; Philippines Judges Association v. Prado, 227 SCRA 703; Philippine
Association of Service Exporters v. Drilon, 163 SCRA 386 (1988).
36 Sison Jr. v. Ancheta, 130 SCRA 164.
37 See Fabian v. Aniano A. Desierto, as Ombudsman, G.R. No. 129742, Sept. 16,
1998.
38 Senator Raul and Sandiganbayan Presiding Justice Francis Garchitorena and
Justice Jose Balajadia.
39 Petition, p. 17.
40 Sec. 21, Article VI, 1987 Constitution provides: "The Senate or the House of
Representative or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected."
41 "No ex post facto law or bill of attainder shall be enacted" (Section 22, Article
VI, 1987 Constitution).
42 Penned by Chief Justice Chase (3 Dall, 386, 390.); Black, Constitutional law,
595, cited in Cruz Constitution Law, 1995 ed. p. 247.
85

43 Mekin v. Wolfe, 2 Phil. 74 (1903) and U.S. v. Diaz Conde, 42 Phil. 766, 770,
cited in Bernas, Constitutional Rights and Social Demands, Part II, 1991 ed., p.
513.
44 This kind of ex post facto law appeared in Wilensky v. Fields, Fla., 267 So. 2d
1, 5 (Black's Law Dictionary, 5th ed., p. 520) cited in People v. Sandiganbayan,
211 SCRA 241.
45 En banc cases of In Re Kay Villegas Kami, 35 SCRA 429 (1970); Mejia v.
Pamaran, 160 SCRA 457; Tan v. Barrios, 190 SCRA 686; People v.
Sandiganbayan, 211 SCRA 241.
46 Wright v. CA, 235 SCRA 341; Jucrez v. CA, 214 SCRA 475; Pascual v. Board of
Medical Examiners, 28 SCRA 344; See also Katigbak v. Solicitor General, 180
SCRA 540 citing Cabal v. Kapunan, Jr. 6 SCRA 1059; Republic v. Agoncillo, 40
SCRA 579, and dela Cruz v. Better Living, Inc., 78 SCRA 274.
47 Lorenzo v. Posadas, 64 Phil. 353, 367 (1937).
48 Hernandez v. Albano, 19 SCRA 95, 102.
49 Subido, Jr. v. Sandiganbayan, 334 Phil. 346.
50 Rodriguez v. Sandiganbayan, 205 Phil. 567; Alviar v. Sandiganbayan, 137
SCRA 63; Nuez v. Sandiganbayan, 111 SCRA 433; De Guzman v. People,
December 15, 1982.
51 Nuez v. Sandiganbayan, supra.
52 People v. Nazario, 165 SCRA 186.
53 Virata v. Sandiganbayan, 202 SCRA 680.
54 Oas v. Sandiganbayan, 178 SCRA 261.
55 Thompson v. Utah, 170 U.S. 343 cited in Nuez v. Sandiganbayan, supra.
56 Rodriguez v. Sandiganbayan, 205 Phil. 567; Alviar v. Sandiganbayan, 137
SCRA 63.
57 Sec. 26 (1), Article VI, 1987 Constitution reads "Every bill passed by the
Congress shall embrace only one subject which shall be expressed in the title
thereof.
58 Tio v. Videogram Regulatory Board, 151 SCRA 208.
59 Sumulong v. COMELEC, 73 Phil. 228-291.
60 Sec. 2 Art. VI, 1987 Constitution provides: "The Congress shall have the power
to define, prescribe, and apportion the jurisdiction of the various courts but may
not deprive the Supreme Court of its jurisdiction over cases enumerated in Section
5 hereof.
86

61 People v. Magallanes, 249 SCRA 212, 222 [1995], citing Republic vs. Asuncion,
231 SCRA 211 (1994).
62 People vs. Magallanes, ibid., citing U.S. vs. Mallari, 24 Phil. 366 [1913]; People
vs. Co Hiok, 62 Phil. 501 [1995]; People vs. Ocaya, 83 SCRA 218 [1978].
63 Republic vs. Asuncion; supra. pp. 232-233; People vs. Magallanes, supra, p.
220.
64 108 Phil. 613 (1960).
65 See also Republic vs. Asuncion, 231 SCRA 233 [1994] and People vs.
Magallanes, 249 SCRA 221, [1995].
66 See Republic vs. Asuncion supra, and People vs. Magallanes, supra.
67 People vs. Cosare, 95 Phil. 657, 660 (1994).
68 People vs. Mendoza, 175 SCRA 743.
69 3 Phil. 223, 226 [1904]. See also Matilde v. Jobson, 68 SCRA 456, [December
29, 1975]; People v. Labado, 98 SCRA 730, 747 [July 24, 1980], cited in Bernas.
The Constitution of the Philippines A Commentary, Vol. I, 1987 Editiion, p.
386.
70 Francisco, The Revised Rules of Court, Criminal Procedure, p. 77 cited in
Balitaan vs. Court of First Instance of Batangas, 115 SCRA 739 [1982].
71 The eleven (11) amended informations were couched uniformly except for the
names of the victims.
72 249 SCRA 212, 222, 223 [1995].
73 Sec. 20 of B.P. Blg. 129 provides "Regional Trial Courts shall exercise exclusive
original jurisdiction in all criminal cases not within the exclusive jurisdiction of
any court, tribunal, or body, except those now falling under the exclusive and
concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively
taken cognizance of by the latter" See also People v. Magallanes, 249 SCRA 223
[1995].






87

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 128845 June 1, 2000
INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner,
vs.
HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and
Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of
Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of
International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents.
KAPUNAN, J.:
Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent
School, mostly Filipinos, cry discrimination. We agree. That the local-hires are paid more than
their colleagues in other schools is, of course, beside the point. The point is that employees
should be given equal pay for work of equal value. That is a principle long honored in this
jurisdiction. That is a principle that rests on fundamental notions of justice. That is the principle
we uphold today.1wphi1.nt
Private respondent International School, Inc. (the School, for short), pursuant to Presidential
Decree 732, is a domestic educational institution established primarily for dependents of foreign
diplomatic personnel and other temporary residents.
1
To enable the School to continue carrying
out its educational program and improve its standard of instruction, Section 2(c) of the same
decree authorizes the School to employ its own teaching and management personnel selected by
it either locally or abroad, from Philippine or other nationalities, such personnel being exempt
from otherwise applicable laws and regulations attending their employment, except laws that
have been or will be enacted for the protection of employees.
Accordingly, the School hires both foreign and local teachers as members of its faculty,
classifying the same into two: (1) foreign-hires and (2) local-hires. The School employs four tests
to determine whether a faculty member should be classified as a foreign-hire or a local hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic allegiance?
d. Was the individual hired abroad specifically to work in the School and was the School
responsible for bringing that individual to the Philippines?
2

Should the answer to any of these queries point to the Philippines, the faculty member is
classified as a local hire; otherwise, he or she is deemed a foreign-hire.
The School grants foreign-hires certain benefits not accorded local-hires.1avvphi1 These include
housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires
are also paid a salary rate twenty-five percent (25%) more than local-hires. The School justifies
the difference on two "significant economic disadvantages" foreign-hires have to endure, namely:
(a) the "dislocation factor" and (b) limited tenure. The School explains:
88

A foreign-hire would necessarily have to uproot himself from his home country, leave his
family and friends, and take the risk of deviating from a promising career path all for
the purpose of pursuing his profession as an educator, but this time in a foreign land.
The new foreign hire is faced with economic realities: decent abode for oneself and/or for
one's family, effective means of transportation, allowance for the education of one's
children, adequate insurance against illness and death, and of course the primary benefit
of a basic salary/retirement compensation.
Because of a limited tenure, the foreign hire is confronted again with the same economic
reality after his term: that he will eventually and inevitably return to his home country
where he will have to confront the uncertainty of obtaining suitable employment after
along period in a foreign land.
The compensation scheme is simply the School's adaptive measure to remain competitive
on an international level in terms of attracting competent professionals in the field of
international education.
3

When negotiations for a new collective bargaining agreement were held on June 1995, petitioner
International School Alliance of Educators, "a legitimate labor union and the collective bargaining
representative of all faculty members"
4
of the School, contested the difference in salary rates
between foreign and local-hires. This issue, as well as the question of whether foreign-hires
should be included in the appropriate bargaining unit, eventually caused a deadlock between the
parties.
On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation
and Mediation Board to bring the parties to a compromise prompted the Department of Labor
and Employment (DOLE) to assume jurisdiction over the dispute. On June 10, 1996, the DOLE
Acting Secretary, Crescenciano B. Trajano, issued an Order resolving the parity and
representation issues in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing
subsequently denied petitioner's motion for reconsideration in an Order dated March 19, 1997.
Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire classification employed by the School is discriminatory to
Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its faculty members, numbering 38
in all, with nationalities other than Filipino, who have been hired locally and classified as local
hires.
5
The Acting Secretary of Labor found that these non-Filipino local-hires received the same
benefits as the Filipino local-hires.
The compensation package given to local-hires has been shown to apply to all, regardless
of race. Truth to tell, there are foreigners who have been hired locally and who are paid
equally as Filipino local hires.
6

The Acting secretary upheld the point-of-hire classification for the distinction in salary rates:
The Principle "equal pay for equal work" does not find applications in the present case.
The international character of the School requires the hiring of foreign personnel to deal
with different nationalities and different cultures, among the student population.
We also take cognizance of the existence of a system of salaries and benefits accorded to
foreign hired personnel which system is universally recognized. We agree that certain
amenities have to be provided to these people in order to entice them to render their
services in the Philippines and in the process remain competitive in the international
market.
89

Furthermore, we took note of the fact that foreign hires have limited contract of
employment unlike the local hires who enjoy security of tenure. To apply parity therefore,
in wages and other benefits would also require parity in other terms and conditions of
employment which include the employment which include the employment contract.
A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for
salary and professional compensation wherein the parties agree as follows:
All members of the bargaining unit shall be compensated only in accordance with
Appendix C hereof provided that the Superintendent of the School has the
discretion to recruit and hire expatriate teachers from abroad, under terms and
conditions that are consistent with accepted international practice.
Appendix C of said CBA further provides:
The new salary schedule is deemed at equity with the Overseas Recruited Staff
(OSRS) salary schedule. The 25% differential is reflective of the agreed value of
system displacement and contracted status of the OSRS as differentiated from the
tenured status of Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the parties' recognition of the difference in the
status of two types of employees, hence, the difference in their salaries.
The Union cannot also invoke the equal protection clause to justify its claim of parity. It is
an established principle of constitutional law that the guarantee of equal protection of the
laws is not violated by legislation or private covenants based on reasonable classification.
A classification is reasonable if it is based on substantial distinctions and apply to all
members of the same class. Verily, there is a substantial distinction between foreign hires
and local hires, the former enjoying only a limited tenure, having no amenities of their
own in the Philippines and have to be given a good compensation package in order to
attract them to join the teaching faculty of the School.
7

We cannot agree.
That public policy abhors inequality and discrimination is beyond contention. Our Constitution
and laws reflect the policy against these evils. The Constitution
8
in the Article on Social Justice
and Human Rights exhorts Congress to "give highest priority to the enactment of measures that
protect and enhance the right of all people to human dignity, reduce social, economic, and
political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the
exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his
due, and observe honesty and good faith.
International law, which springs from general principles of law,
9
likewise proscribes
discrimination. General principles of law include principles of equity,
10
i.e., the general
principles of fairness and justice, based on the test of what is reasonable.
11
The Universal
Declaration of Human Rights,
12
the International Covenant on Economic, Social, and Cultural
Rights,
13
the International Convention on the Elimination of All Forms of Racial
Discrimination,
14
the Convention against Discrimination in Education,
15
the Convention (No.
111) Concerning Discrimination in Respect of Employment and Occupation
16
all embody the
general principle against discrimination, the very antithesis of fairness and justice. The
Philippines, through its Constitution, has incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of
capital, inequality and discrimination by the employer are all the more reprehensible.
90

The Constitution
17
specifically provides that labor is entitled to "humane conditions of work."
These conditions are not restricted to the physical workplace the factory, the office or the field
but include as well the manner by which employers treat their employees.
The Constitution
18
also directs the State to promote "equality of employment opportunities for
all." Similarly, the Labor Code
19
provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both the spirit and letter of these
provisions if the State, in spite of its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of
employment.
20

Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135,
for example, prohibits and penalizes
21
the payment of lesser compensation to a female employee
as against a male employee for work of equal value. Article 248 declares it an unfair labor
practice for an employer to discriminate in regard to wages in order to encourage or discourage
membership in any labor organization.
Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7
thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of just and favourable conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions
of work not inferior to those enjoyed by men, with equal pay for equal
work;
x x x x x x x x x
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal
truism of "equal pay for equal work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be paid similar salaries.
22
This
rule applies to the School, its "international character" notwithstanding.
The School contends that petitioner has not adduced evidence that local-hires perform work
equal to that of foreign-hires.
23
The Court finds this argument a little cavalier. If an employer
accords employees the same position and rank, the presumption is that these employees perform
equal work. This presumption is borne by logic and human experience. If the employer pays one
employee less than the rest, it is not for that employee to explain why he receives less or why the
others receive more. That would be adding insult to injury. The employer has discriminated
against that employee; it is for the employer to explain why the employee is treated unfairly.
The employer in this case has failed to discharge this burden. There is no evidence here that
foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have
similar functions and responsibilities, which they perform under similar working conditions.
The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the
distinction in salary rates without violating the principle of equal work for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services
performed." Similarly, the Philippine Legal Encyclopedia states that "salary" is the
91

"[c]onsideration paid at regular intervals for the rendering of services." In Songco v. National
Labor Relations Commission,
24
we said that:
"salary" means a recompense or consideration made to a person for his pains or industry
in another man's business. Whether it be derived from "salarium," or more fancifully from
"sal," the pay of the Roman soldier, it carries with it the fundamental idea of
compensation for services rendered. (Emphasis supplied.)
While we recognize the need of the School to attract foreign-hires, salaries should not be used as
an enticement to the prejudice of local-hires. The local-hires perform the same services as
foreign-hires and they ought to be paid the same salaries as the latter. For the same reason, the
"dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the
distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are
adequately compensated by certain benefits accorded them which are not enjoyed by local-hires,
such as housing, transportation, shipping costs, taxes and home leave travel allowances.
The Constitution enjoins the State to "protect the rights of workers and promote their
welfare,"
25
"to afford labor full protection."
26
The State, therefore, has the right and duty to
regulate the relations between labor and capital.
27
These relations are not merely contractual but
are so impressed with public interest that labor contracts, collective bargaining agreements
included, must yield to the common good.
28
Should such contracts contain stipulations that are
contrary to public policy, courts will not hesitate to strike down these stipulations.
In this case, we find the point-of-hire classification employed by respondent School to justify the
distinction in the salary rates of foreign-hires and local hires to be an invalid classification. There
is no reasonable distinction between the services rendered by foreign-hires and local-hires. The
practice of the School of according higher salaries to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of this Court.1avvphi1
We agree, however, that foreign-hires do not belong to the same bargaining unit as the local-
hires.
A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of
the entire body of employees, consistent with equity to the employer, indicate to be the best
suited to serve the reciprocal rights and duties of the parties under the collective bargaining
provisions of the law."
29
The factors in determining the appropriate collective bargaining unit are
(1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees' interest,
such as substantial similarity of work and duties, or similarity of compensation and working
conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4)
similarity of employment status.
30
The basic test of an asserted bargaining unit's acceptability is
whether or not it is fundamentally the combination which will best assure to all employees the
exercise of their collective bargaining rights.
31

It does not appear that foreign-hires have indicated their intention to be grouped together with
local-hires for purposes of collective bargaining. The collective bargaining history in the School
also shows that these groups were always treated separately. Foreign-hires have limited tenure;
local-hires enjoy security of tenure. Although foreign-hires perform similar functions under the
same working conditions as the local-hires, foreign-hires are accorded certain benefits not
granted to local-hires. These benefits, such as housing, transportation, shipping costs, taxes,
and home leave travel allowance, are reasonably related to their status as foreign-hires, and
justify the exclusion of the former from the latter. To include foreign-hires in a bargaining unit
with local-hires would not assure either group the exercise of their respective collective
bargaining rights.
92

WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART.
The Orders of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997,
are hereby REVERSED and SET ASIDE insofar as they uphold the practice of respondent School
of according foreign-hires higher salaries than local-hires.
SO ORDERED.
Puno and Pardo, JJ., concur.
Davide, Jr., C.J., on official leave.
Ynares-Santiago, J., is on leave.


Footnotes
1
Issued on June 19, 1975 (Authorizing International School, Inc. to Donate Its Real
Properties to the Government of the Republic of the Philippines and Granting It Certain
Rights.)
2
Rollo, p. 328.
3
Id., at 324.
4
Id., at 8.
5
Id., at 325. The breakdown is as follows:
Americans 17
Australian 2
Belgian 1
British 2
Burmese 1
Canadian 2
Chinese 2
French 1
German 1
Indian 5
Japanese 1
Malaysian 1
New Zealander 1
Spanish 1

93

6
Id., at 39.
7
Id., at 38-39.
8
In Section 1, Article XII thereof.
9
Statute of the International Court of Justice, art. 38.
10
M. DEFENSOR-SANTIAGO, International Law 75 (1999), citing Judge Hudson in River
Meuse Case, (1937) Ser. A/B No. 70.
11
Ibid., citing Rann of Kutch Arbitration (India vs. Pakistan), 50 ILR 2 (1968).
12
Adopted by the General Assembly of the United Nations on December 10, 1948. Article
1 thereof states: "All human beings are born free and equal in dignity and rights. Article 2
provides, "1. Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status."
13
Adopted by the General of the United Nations in Resolution 2200 (XXI) of 16 December
1966. Article 2 provides: "2. The States Parties to the present Covenant undertake to
guarantee that the rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status."
14
Adopted by the General assembly of the United Nations in Resolution 2106 (XX) 21
December 1965. Article 2 of the Convention states: "States Parties condemn racial
discrimination and undertake to pursue by all appropriate means and without delay a
policy of eliminating racial discrimination in all its forms and promoting understanding
among all races . . . ."
15
Adopted at Paris, December 14, 1960. Under Article 3, the States Parties undertake,
among others, "to abrogate any statutory provisions and any administrative instructions
and to discontinue any administrative practices which involve discrimination in
education." Under Article 4, "The States Parties to this Convention undertake further
more to formulate, develop and apply a national policy which, by methods appropriate to
the circumstances and to national usage, will tend to promote equality of opportunity and
of treatment in the matter of education . . . ."
16
Adopted by the General Conference of the International Labor Organization at Geneva,
June 25, 1958. Article 2 provides that, "Each Member for which this Convention is in
force undertakes to declare and pursue a national policy designed to promote, by
methods appropriate to national condition and practice, equality of opportunity and
treatment in respect of employment and occupation, with a view to eliminating any
discrimination in respect thereof.
17
In Article XIII, Section 3 thereof.
18
Id.
19
In Article 3 thereof.
94

20
E.g., Article 135 of the Labor Code declares it unlawful for the employer to require, not
only as a condition of employment, but also as a condition for the continuation of
employment, that a woman shall not get married.
21
In relation to Articles 288 and 289 of the same Code.
22
Indeed, the government employs this rule in fixing the compensation of government
employees. Thus, Republic Act No. 6758 (An Act Prescribing a Revised Compensation and
Position Classification System in the Government and for Other Purposes) declares it "the
policy of the State to provide equal pay for substantially equal work and to base
differences in pay upon substantive differences in duties and responsibilities, and
qualification requirements of the positions. See also the Preamble of Presidential Decree
No. 985 (A Decree Revising the Position Classification and Compensation Systems in the
National Government, and Integrating the same).1wphi1.nt
23
Rollo, p. 491.
24
183 SCRA 610 (1990).
25
In Section 18, Article II thereof.
26
In Section 3, Article XIII thereof. See also Article 3 of the Labor Code.
27
See Sec. 3, Article XIII, Constitution. Article 3 of the Labor Code.
28
Art. 1700, Civil Code.
29
Toyota Motor Philippines Corporation vs. Toyota Motor Philippines Federation Labor
Union and the Secretary of Labor and Employment, 268 SCRA 573 (1997); San Miguel
Corporation vs. Laguesma, 236 SCRA 595 (1994).
30
San Miguel Corporation vs. Laguesma, supra.
31
Belyca Corporation vs. Ferrer-Calleja, 188 SCRA 184 (1988).









95

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23794 February 17, 1968
ORMOC SUGAR COMPANY, INC., plaintiff-appellant,
vs.
THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF ORMOC CITY, HON.
ESTEBAN C. CONEJOS as Mayor of Ormoc City and ORMOC CITY, defendants-appellees.
Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee, Carreon & Taada for plaintiff-
appellant.
Ramon O. de Veyra for defendants-appellees.
BENGZON, J.P., J.:
On January 29, 1964, the Municipal Board of Ormoc City passed
1
Ordinance No. 4, Series
of 1964, imposing "on any and all productions of centrifugal sugar milled at the Ormoc Sugar
Company, Inc., in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale
to the United States of America and other foreign countries."
2

Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March
20, 1964 for P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50.
On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of First Instance of
Leyte, with service of a copy upon the Solicitor General, a complaint
3
against the City of Ormoc
as well as its Treasurer, Municipal Board and Mayor, alleging that the afore-stated ordinance is
unconstitutional for being violative of the equal protection clause (Sec. 1[1], Art. III, Constitution)
and the rule of uniformity of taxation (Sec. 22[1]), Art. VI, Constitution), aside from being an
export tax forbidden under Section 2287 of the Revised Administrative Code. It further alleged
that the tax is neither a production nor a license tax which Ormoc City under Section 15-kk of
its charter and under Section 2 of Republic Act 2264, otherwise known as the Local Autonomy
Act, is authorized to impose; and that the tax amounts to a customs duty, fee or charge in
violation of paragraph 1 of Section 2 of Republic Act 2264 because the tax is on both the sale
and export of sugar.
Answering, the defendants asserted that the tax ordinance was within defendant city's
power to enact under the Local Autonomy Act and that the same did not violate the afore-cited
constitutional limitations. After pre-trial and submission of the case on memoranda, the Court of
First Instance, on August 6, 1964, rendered a decision that upheld the constitutionality of the
ordinance and declared the taxing power of defendant chartered city broadened by the Local
Autonomy Act to include all other forms of taxes, licenses or fees not excluded in its charter.
Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar Company, Inc.
Appellant alleges the same statutory and constitutional violations in the aforesaid taxing
ordinance mentioned earlier.
Section 1 of the ordinance states: "There shall be paid to the City Treasurer on any and all
productions of centrifugal sugar milled at the Ormoc Sugar Company, Incorporated, in Ormoc
City, a municipal tax equivalent to one per centum (1%) per export sale to the United States of
America and other foreign countries." Though referred to as a tax on the export of centrifugal
96

sugar produced at Ormoc Sugar Company, Inc. For production of sugar alone is not taxable; the
only time the tax applies is when the sugar produced is exported.
Appellant questions the authority of the defendant Municipal Board to levy such an export
tax, in view of Section 2287 of the Revised Administrative Code which denies from municipal
councils the power to impose an export tax. Section 2287 in part states: "It shall not be in the
power of the municipal council to impose a tax in any form whatever, upon goods and
merchandise carried into the municipality, or out of the same, and any attempt to impose an
import or export tax upon such goods in the guise of an unreasonable charge for wharf age use
of bridges or otherwise, shall be void."
Subsequently, however, Section 2 of Republic Act 2264 effective June 19, 1959, gave
chartered cities, municipalities and municipal districts authority to levy for public purposes just
and uniform taxes, licenses or fees. Anent the inconsistency between Section 2287 of the Revised
Administrative Code and Section 2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v.
Municipality of Roxas
4
held the former to have been repealed by the latter. And expressing Our
awareness of the transcendental effects that municipal export or import taxes or licenses will
have on the national economy, due to Section 2 of Republic Act 2264, We stated that there was
no other alternative until Congress acts to provide remedial measures to forestall any
unfavorable results.
The point remains to be determined, however, whether constitutional limits on the power
of taxation, specifically the equal protection clause and rule of uniformity of taxation, were
infringed.
The Constitution in the bill of rights provides: ". . . nor shall any person be denied the
equal protection of the laws." (Sec. 1 [1], Art. III) In Felwa vs. Salas,
5
We ruled that the equal
protection clause applies only to persons or things identically situated and does not bar a
reasonable classification of the subject of legislation, and a classification is reasonable where (1)
it is based on substantial distinctions which make real differences; (2) these are germane to the
purpose of the law; (3) the classification applies not only to present conditions but also to future
conditions which are substantially identical to those of the present; (4) the classification applies
only to those who belong to the same class.
A perusal of the requisites instantly shows that the questioned ordinance does not meet
them, for it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company,
Inc. and none other. At the time of the taxing ordinance's enactment, Ormoc Sugar Company,
Inc., it is true, was the only sugar central in the city of Ormoc. Still, the classification, to be
reasonable, should be in terms applicable to future conditions as well. The taxing ordinance
should not be singular and exclusive as to exclude any subsequently established sugar central,
of the same class as plaintiff, for the coverage of the tax. As it is now, even if later a similar
company is set up, it cannot be subject to the tax because the ordinance expressly points only to
Ormoc City Sugar Company, Inc. as the entity to be levied upon.
Appellant, however, is not entitled to interest; on the refund because the taxes were not
arbitrarily collected (Collector of Internal Revenue v. Binalbagan).
6
At the time of collection, the
ordinance provided a sufficient basis to preclude arbitrariness, the same being then presumed
constitutional until declared otherwise.
WHEREFORE, the decision appealed from is hereby reversed, the challenged ordinance is
declared unconstitutional and the defendants-appellees are hereby ordered to refund the
P12,087.50 plaintiff-appellant paid under protest. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.1wph1.t
97

Footnotes
1
Resolution No. 30, Series of 1964.
2
Section 1, emphasis supplied.
3
An action for declaratory judgment was also filed on May 23, 1964 (Civil Case No. 665-0)
but this and the present case were tried jointly.
4
L-20125, July 20, 1965.
5
L-26511, Oct. 29, 1966.
6
L-12752, Jan. 30, 1965.




















98

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 105371 November 11, 1993
THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P.
ABESAMIS, Vice-President for Legal Affairs, MARIANO M. UMALI, Director for Pasig,
Makati, and Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of the Committee
on Legal Aid, JESUS G. BERSAMIRA, Presiding Judges of the Regional Trial Court, Branch
85, Quezon City and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: the
NATIONAL CONFEDERATION OF THE JUDGES ASSOCIATION OF THE PHILIPPINES,
composed of the METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its
President. REINATO QUILALA of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE
MUNICIPAL JUDGES LEAGUE OF THE PHILIPPINES rep. by its President, TOMAS G.
TALAVERA; by themselves and in behalf of all the Judges of the Regional Trial and Shari'a
Courts, Metropolitan Trial Courts and Municipal Courts throughout the
Country, petitioners,
vs.
HON. PETE PRADO, in his capacity as Secretary of the Department of Transportation and
Communications, JORGE V. SARMIENTO, in his capacity as Postmaster General, and the
PHILIPPINE POSTAL CORP., respondents.

CRUZ, J.:
The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the
petitioners that this hallmark of republicanism is impaired by the statute and circular they are
here challenging. The Supreme Court is itself affected by these measures and is thus an
interested party that should ordinarily not also be a judge at the same time. Under our system of
government, however, it cannot inhibit itself and must rule upon the challenge, because no other
office has the authority to do so. We shall therefore act upon this matter not with officiousness
but in the discharge of an unavoidable duty and, as always, with detachment and fairness.
The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the Philippine
Postal Corporation through its Circular No.
92-28. These measures withdraw the franking privilege from the Supreme Court, the Court of
Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts,
and the Land Registration Commission and its Registers of Deeds, along with certain other
government offices.
The petitioners are members of the lower courts who feel that their official functions as judges
will be prejudiced by the above-named measures. The National Land Registration Authority has
taken common cause with them insofar as its own activities, such as sending of requisite notices
in registration cases, affect judicial proceedings. On its motion, it has been allowed to intervene.
The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title
embraces more than one subject and does not express its purposes; (2) it did not pass the
required readings in both Houses of Congress and printed copies of the bill in its final form were
99

not distributed among the members before its passage; and (3) it is discriminatory and
encroaches on the independence of the Judiciary.
We approach these issues with one important principle in mind, to wit, the presumption of the
constitutionality of statutes. The theory is that as the joint act of the Legislature and the
Executive, every statute is supposed to have first been carefully studied and determined to be
constitutional before it was finally enacted. Hence, unless it is clearly shown that it is
constitutionally flawed, the attack against its validity must be rejected and the law itself upheld.
To doubt is to sustain.
I
We consider first the objection based on Article VI, Sec. 26(l), of the Constitution providing that
"Every bill passed by the Congress shall embrace only one subject which shall be expressed in
the title thereof."
The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling" legislation; (2) to prevent
surprise or fraud upon the legislature by means of provisions in bills of which the title gives no
intimation, and which might therefore be overlooked and carelessly and unintentionally adopted;
and (3) to fairly apprise the people, through such publication of legislative proceedings as is
usually made, of the subject of legislation that is being considered, in order that they may have
opportunity of being heard thereon, by petition or otherwise, if they shall so desire.
1

It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the
franking privilege from the Judiciary is not expressed in the title of the law, nor does it reflect its
purposes.
R.A. No. 7354 is entitled "An Act Creating the Philippine Postal Corporation, Defining its Powers,
Functions and Responsibilities, Providing for Regulation of the Industry and for Other Purposes
Connected Therewith."
The objectives of the law are enumerated in Section 3, which provides:
The State shall pursue the following objectives of a nationwide postal system:
a) to enable the economical and speedy transfer of mail and other postal matters,
from sender to addressee, with full recognition of their privacy or confidentiality;
b) to promote international interchange, cooperation and understanding through
the unhampered flow or exchange of postal matters between nations;
c) to cause or effect a wide range of postal services to cater to different users and
changing needs, including but not limited to, philately, transfer of monies and
valuables, and the like;
d) to ensure that sufficient revenues are generated by and within the industry to
finance the overall cost of providing the varied range of postal delivery and
messengerial services as well as the expansion and continuous upgrading of
service standards by the same.
Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads as follows:
100

Sec. 35. Repealing Clause. All acts, decrees, orders, executive orders,
instructions, rules and regulations or parts thereof inconsistent with the
provisions of this Act are repealed or modified accordingly.
All franking privileges authorized by law are hereby repealed, except those
provided for under Commonwealth Act No. 265, Republic Acts Numbered 69, 180,
1414, 2087 and 5059. The Corporation may continue the franking privilege under
Circular No. 35 dated October 24, 1977 and that of the Vice President, under such
arrangements and conditions as may obviate abuse or unauthorized use thereof.
The petitioners' contention is untenable. We do not agree that the title of the challenged act
violates the Constitution.
The title of the bill is not required to be an index to the body of the act, or to be as
comprehensive as to cover every single detail of the measure. It has been held that if the title
fairly indicates the general subject, and reasonably covers all the provisions of the act, and is not
calculated to mislead the legislature or the people, there is sufficient compliance with the
constitutional requirement.
2

To require every end and means necessary for the accomplishment of the general objectives of
the statute to be expressed in its title would not only be unreasonable but would actually render
legislation impossible.
3
As has been correctly explained:
The details of a legislative act need not be specifically stated in its title, but matter
germane to the subject as expressed in the title, and adopted to the
accomplishment of the object in view, may properly be included in the act. Thus, it
is proper to create in the same act the machinery by which the act is to be
enforced, to prescribe the penalties for its infraction, and to remove obstacles in
the way of its execution. If such matters are properly connected with the subject
as expressed in the title, it is unnecessary that they should also have special
mention in the title (Southern Pac. Co. v. Bartine, 170 Fed. 725).
This is particularly true of the repealing clause, on which Cooley writes: "The repeal of a statute
on a given subject is properly connected with the subject matter of a new statute on the same
subject; and therefore a repealing section in the new statute is valid, notwithstanding that the
title is silent on the subject. It would be difficult to conceive of a matter more germane to an act
and to the object to be accomplished thereby than the repeal of previous legislations connected
therewith."
4

The reason is that where a statute repeals a former law, such repeal is the effect and not the
subject of the statute; and it is the subject, not the effect of a law, which is required to be briefly
expressed in its title.
5
As observed in one case,
6
if the title of an act embraces only one subject,
we apprehend it was never claimed that every other act which repeals it or alters by implication
must be mentioned in the title of the new act. Any such rule would be neither within the reason
of the Constitution, nor practicable.
We are convinced that the withdrawal of the franking privilege from some agencies is germane to
the accomplishment of the principal objective of R.A. No. 7354, which is the creation of a more
efficient and effective postal service system. Our ruling is that, by virtue of its nature as a
repealing clause, Section 35 did not have to be expressly included in the title of the said law.
II
The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking
privilege from the petitioners and this Court under E.O. 207, PD 1882 and PD 26 was not
101

included in the original version of Senate Bill No. 720 or House Bill No. 4200. As this paragraph
appeared only in the Conference Committee Report, its addition, violates Article VI, Sec. 26(2) of
the Constitution, reading as follows:
(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that
amendment to any bill when the House and the Senate shall have differences thereon may be
settled by a conference committee of both chambers. They stress that Sec. 35 was never a
subject of any disagreement between both Houses and so the second paragraph could not have
been validly added as an amendment.
These argument are unacceptable.
While it is true that a conference committee is the mechanism for compromising differences
between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader
function is described thus:
A conference committee may, deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where
the conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be inserted
into the conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate, These excursions occur even
where the rules impose strict limitations on conference committee jurisdiction.
This is symptomatic of the authoritarian power of conference committee (Davies,
Legislative Law and Process: In a Nutshell, 1986 Ed., p.81).
It is a matter of record that the conference Committee Report on the bill in question was returned
to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill
was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V.
Mitra of the House of Representatives as having been duly passed by both Houses of Congress. It
was then presented to and approved by President Corazon C. Aquino on April 3, 1992.
Under the doctrine of separation powers, the Court may not inquire beyond the certification of
the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v.
Gimenez
7
laid down the rule that the enrolled bill, is conclusive upon the Judiciary (except in
matters that have to be entered in the journals like theyeas and nays on the final reading of the
bill).
8
The journals are themselves also binding on the Supreme Court, as we held in the old (but
still valid) case of U.S. vs. Pons,
9
where we explained the reason thus:
To inquire into the veracity of the journals of the Philippine legislature when they
are, as we have said, clear and explicit, would be to violate both the, letter and
spirit of the organic laws by which the Philippine Government was brought into
existence, to invade a coordinate and independent department of the Government,
and to interfere with the legitimate powers and functions, of the Legislature.
Applying these principles, we shall decline to look into the petitioners' charges that an
amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and
102

that copies thereof in its final form were not distributed among the members of each House. Both
the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in
accordance with Article VI, Sec. 26(2) of the Constitution. We are bound by such official
assurances from a coordinate department of the government, to which we owe, at the very least,
a becoming courtesy.
III
The third and most serious challenge of the petitioners is based on the equal protection clause.
It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking
privilege from the Judiciary, it retains the same for the President of the Philippines, the Vice
President of the Philippines; Senators and Members of the House of Representatives, the
Commission on Elections; former Presidents of the Philippines; the National Census and
Statistics Office; and the general public in the filing of complaints against public offices and
officers.
10

The respondents counter that there is no discrimination because the law is based on a valid
classification in accordance with the equal protection clause. In fact, the franking privilege has
been withdrawn not only from the Judiciary but also the Office of Adult Education, the Institute
of National Language; the Telecommunications Office; the Philippine Deposit Insurance
Corporation; the National Historical Commission; the Armed Forces of the Philippines; the Armed
Forces of the Philippines Ladies Steering Committee; the City and Provincial Prosecutors; the
Tanodbayan (Office of Special Prosecutor); the Kabataang Barangay; the Commission on the
Filipino Language; the Provincial and City Assessors; and the National Council for the Welfare of
Disabled Persons.
11

The equal protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has nonetheless been
embodied in a separate clause in Article III Sec. 1., of the Constitution to provide for a more,
specific guaranty against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to
cut it down is the equal protection clause.
According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed,
12
Similar subjects, in other words, should not be treated differently, so as to give
undue favor to some and unjustly discriminate against others.
The equal protection clause does not require the universal application of the laws on all persons
or things without distinction. This might in fact sometimes result in unequal protection, as
where, for example, a law prohibiting mature books to all persons, regardless of age, would
benefit the morals of the youth but violate the liberty of adults. What the clause requires is
equality among equals as determined according to a valid classification. By classification is
meant the grouping of persons or things similar to each other in certain particulars and different
from all others in these same particulars.
13

What is the reason for the grant of the franking privilege in the first place? Is the franking
privilege extended to the President of the Philippines or the Commission on Elections or to former
Presidents of the Philippines purely as a courtesy from the lawmaking body? Is it offered because
of the importance or status of the grantee or because of its need for the privilege? Or have the
grantees been chosen pell-mell, as it were, without any basis at all for the selection?
103

We reject outright the last conjecture as there is no doubt that the statute as a whole was
carefully deliberated upon, by the political departments before it was finally enacted. There is
reason to suspect, however, that not enough care or attention was given to its repealing clause,
resulting in the unwitting withdrawal of the franking privilege from the Judiciary.
We also do not believe that the basis of the classification was mere courtesy, for it is
unimaginable that the political departments would have intended this serious slight to the
Judiciary as the third of the major and equal departments the government. The same
observations are made if the importance or status of the grantee was the criterion used for the
extension of the franking privilege, which is enjoyed by the National Census and Statistics Office
and even some private individuals but not the courts of justice.
In our view, the only acceptable reason for the grant of the franking privilege was the
perceived need of the grantee for the accommodation, which would justify a waiver of substantial
revenue by the Corporation in the interest of providing for a smoother flow of communication
between the government and the people.
Assuming that basis, we cannot understand why, of all the departments of the government, it is
the Judiciary, that has been denied the franking privilege. There is no question that if there is
any major branch of the government that needs the privilege, it is the Judicial Department, as
the respondents themselves point out. Curiously, the respondents would justify the distinction
on the basis precisely of this need and, on this basis, deny the Judiciary the franking privilege
while extending it to others less deserving.
In their Comment, the respondents point out that available data from the Postal Service Office
show that from January 1988 to June 1992, the total volume of frank mails amounted to
P90,424,175.00. Of this amount, frank mails from the Judiciary and other agencies whose
functions include the service of judicial processes, such as the intervenor, the Department of
Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank mails coming
fromthe Judiciary amounted to P73,574,864.00, and those coming from the petitioners reached
the total amount of P60,991,431.00. The respondents' conclusion is that because of this
considerable volume of mail from the Judiciary, the franking privilege must be withdrawn from
it.
The argument is self-defeating. The respondents are in effect saying that the franking privilege
should be extended only to those who do not need it very much, if at all, (like the widows of
former Presidents) but not to those who need it badly (especially the courts of justice). It is like
saying that a person may be allowed cosmetic surgery although it is not really necessary but not
an operation that can save his life.
If the problem of the respondents is the loss of revenues from the franking privilege, the remedy,
it seems to us, is to withdraw it altogether from all agencies of government, including those who
do not need it. The problem is not solved by retaining it for some and withdrawing it from others,
especially where there is no substantial distinction between those favored, which may or may not
need it at all, and the Judiciary, which definitely needs it. The problem is not solved by violating
the Constitution.
In lumping the Judiciary with the other offices from which the franking privilege has been
withdrawn, Section 35 has placed the courts of justice in a category to which it does not belong.
If it recognizes the need of the President of the Philippines and the members of Congress for the
franking privilege, there is no reason why it should not recognize a similar and in fact greater
need on the part of the Judiciary for such privilege. While we may appreciate the withdrawal of
the franking privilege from the Armed Forces of the Philippines Ladies Steering Committee, we
fail to understand why the Supreme Court should be similarly treated as that Committee. And
while we may concede the need of the National Census and Statistics Office for the franking
104

privilege, we are intrigued that a similar if not greater need is not recognized in the courts of
justice.
(On second thought, there does not seem to be any justifiable need for withdrawing the privilege
from the Armed Forces of the Philippines Ladies Steering Committee, which, like former
Presidents of the Philippines or their widows, does not send as much frank mail as the
Judiciary.)
It is worth observing that the Philippine Postal Corporation, as a government-controlled
corporation, was created and is expected to operate for the purpose of promoting the public
service. While it may have been established primarily for private gain, it cannot excuse itself from
performing certain functions for the benefit of the public in exchange for the franchise extended
to it by the government and the many advantages it enjoys under its charter.
14
Among the
services it should be prepared to extend is free carriage of mail for certain offices of the
government that need the franking privilege in the discharge of their own public functions.
We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos,
55% of which is supplied by the Government, and that it derives substantial revenues from the
sources enumerated in Section 10, on top of the exemptions it enjoys. It is not likely that the
retention of the franking privilege of the Judiciary will cripple the Corporation.
At this time when the Judiciary is being faulted for the delay in the administration of justice, the
withdrawal from it of the franking privilege can only further deepen this serious problem. The
volume of judicial mail, as emphasized by the respondents themselves, should stress the
dependence of the courts of justice on the postal service for communicating with lawyers and
litigants as part of the judicial process. The Judiciary has the lowest appropriation in the
national budget compared to the Legislative and Executive Departments; of the P309 billion
budgeted for 1993, only .84%, or less than 1%, is alloted for the judiciary. It should not be hard
to imagine the increased difficulties of our courts if they have to affix a purchased stamp to every
process they send in the discharge of their judicial functions.
We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a valid
exercise of discretion by the Legislature under the police power. On the contrary, we find its
repealing clause to be a discriminatory provision that denies the Judiciary the equal protection of
the laws guaranteed for all persons or things similarly situated. The distinction made by the law
is superficial. It is not based on substantial distinctions that make real differences between the
Judiciary and the grantees of the franking privilege.
This is not a question of wisdom or power into which the Judiciary may not intrude. It is a
matter of arbitrariness that this Court has the duty and power to correct.
IV
In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title
and that it was not passed in accordance with the prescribed procedure. However, we annul
Section 35 of the law as violative of Article 3, Sec. 1, of the Constitution providing that no person
shall "be deprived of the equal protection of laws."
We arrive at these conclusions with a full awareness of the criticism it is certain to provoke.
While ruling against the discrimination in this case, we may ourselves be accused of similar
discrimination through the exercise of our ultimate power in our own favor. This is inevitable.
Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we
are prepared to accept.. As judges, we cannot debate with our detractors. We can only decide the
cases before us as law imposes on us the duty to be fair and our own conscience gives us the
light to be right.
105

ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared
UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking
privilege from the Supreme Court, the Court of Appeals, the Regional trail Courts, the Municipal
trial Courts, and the National Land Registration Authority and its Register of Deeds to all of
which offices the said privilege shall be RESTORED. The temporary restraining order dated June
2, 1992, is made permanent.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno
and Vitug, JJ., concur.
Bellosillo, J., is on leave.

# Footnotes
1 Cooley, Constitutional Limitations, 8th Ed., pp. 295-296; State vs. Dolan, 14
L.R.A. 1259; State v. Doherty, 29 Pac. 855.
2 Public Service Co. v. Recktenwald, 8 A.L.R. 466.
3 Cooley, Constitutional Limitations, 8th Ed., pp. 297.
4 Ibid., p. 302.
5 Southern Pac. Co. v. Bartine, 170 Fed. 737.
6 City of Winona v. School District, 41 N.W. 539.
7 7 SCRA 347.
8 Mabanag v. Lopez Vito, 78 Phil. 1.
9 34 Phil. 729
10 Rollo, pp. 8-9.
11 Ibid., pp. 209-210.
12 Ichong v. Hernandez, 101 Phil. 1155; Sison v. Ancheta, 130 SCRA 654;
Association of Small Landowners in the Philippines v. Secretary of Agrarian
Reform, 175 SCRA 375.
13 International Harvester Co. v. Missouri, 234 US 199.
14 Sec. 14 of R.A. No. 7354


106

SEARCH AND SEIZURE

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:p
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional
Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in
relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and
Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with
them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation
to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he
was sending the packages to a friend in Zurich, Switzerland. Appellant filled up
the contract necessary for the transaction, writing therein his name, passport
number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the
packages. Appellant, however, refused, assuring her that the packages simply
contained books, cigars, and gloves and were gifts to his friend in Zurich. In view
of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated box
one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of
the packages before the box was sealed with masking tape, thus making the box
ready for shipment (Decision, p. 8).
107

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard
operating procedure, opened the boxes for final inspection. When he opened
appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he
squeezed one of the bundles allegedly containing gloves and felt dried leaves
inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding
from the opening of one of the gloves. He made an opening on one of the cellophane
wrappers and took several grams of the contents thereof (tsn, pp. 29-30, October 6,
1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and
requesting a laboratory examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics
Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the
afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of
Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
still in his office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).
Job Reyes brought out the box in which appellant's packages were placed and, in
the presence of the NBI agents, opened the top flaps, removed the styro-foam and
took out the cellophane wrappers from inside the gloves. Dried marijuana leaves
were found to have been contained inside the cellophane wrappers (tsn, p. 38,
October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes.
He discovered that the package contained bricks or cake-like dried marijuana
leaves. The package which allegedly contained tabacalera cigars was also opened.
It turned out that dried marijuana leaves were neatly stocked underneath the
cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp.
2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in
his passport being the Manila Central Post Office, the agents requested assistance from the
latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central
Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried
leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were
marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo,
pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known
as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
108

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION
OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1;Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should
be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
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.
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.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure
had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the
persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20
SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search
and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of
its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is
carried over up to the present with the advent of the 1987 Constitution.
109

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down
the admissibility of evidence obtained in violation of the constitutional safeguard against
unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim
v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales,
145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other
authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought
to be excluded was primarily discovered and obtained by a private person, acting in a
private capacity and without the intervention and participation of State authorities. Under
the circumstances, can accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private
individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from any invasion of his dwelling
and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US
757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures,
and as shown in previous cases, its protection applies to governmental action. Its
origin and history clearly show that it was intended as a restraint upon the
activities of sovereign authority, and was not intended to be a limitation upon
other than governmental agencies; as against such authority it was the purpose of
the Fourth Amendment to secure the citizen in the right of unmolested occupation
of his dwelling and the possession of his property, subject to the right of seizure
by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking
attendant who searched the automobile to ascertain the owner thereof found marijuana instead,
without the knowledge and participation of police authorities, was declared admissible in
prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
110

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen
the owner of a motel in which appellant stayed overnight and in which he left
behind a travel case containing the evidence***complained of. The search was
made on the motel owner's own initiative. Because of it, he became suspicious,
called the local police, informed them of the bag's contents, and made it available
to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment
only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government without the
latter transgressing appellant's rights against unreasonable search and seizure, the Court sees
no cogent reason why the same should not be admitted against him in the prosecution of the
offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both
instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI
agents conducted an illegal search and seizure of the prohibited merchandise. Records of the
case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who
made search/inspection of the packages. Said inspection was reasonable and a standard
operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18;
pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of
the same to the NBI and later summoned the agents to his place of business. Thereafter, he
opened the parcel containing the rest of the shipment and entrusted the care and custody
thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an
illegal one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe
and look at that which is in plain sight is not a search. Having observed that which is open,
where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429
SW2d 135). Where the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US
559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v.
State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of
private individuals finds support in the deliberations of the Constitutional Commission. True, the
liberties guaranteed by the fundamental law of the land must always be subject to protection.
111

But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of
Rights answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the
essence of constitutional democracy. Protection against whom? Protection against
the state. The Bill of Rights governs the relationship between the individual and the
state. Its concern is not the relation between individuals, between a private
individual and other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary
and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first
secured if it is to pass the test of constitutionality. However, if the search is made at the behest
or initiative of the proprietor of a private establishment for its own and private purposes, as in
the case at bar, and without the intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private individual, not the law enforcers,
is involved. In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified
by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure,
it matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar,
167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987].
The modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with the State
and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked
against the State by an individual unjustly traduced by the exercise of sovereign authority. To
agree with appellant that an act of a private individual in violation of the Bill of Rights should
also be construed as an act of the State would result in serious legal complications and an
absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private
seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of
appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting
him despite the undisputed fact that his rights under the constitution while under custodial
investigation were not observed.
112

Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law
enforcers testified that accused/appellant was informed of his constitutional rights. It is
presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their
testimonies should be given full faith and credence, there being no evidence to the contrary.
What is clear from the records, on the other hand, is that appellant refused to give any written
statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused
here, did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused
availed of his constitutional right not to give any written statement, sir. (TSN,
October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we
have examined the assailed judgment of the trial court and nowhere is there any reference made
to the testimony of appellant while under custodial investigation which was utilized in the finding
of conviction. Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he
was not the owner of the packages which contained prohibited drugs but rather a certain
Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the
course of their 30-minute conversation, Michael requested him to ship the packages and gave
him P2,000.00 for the cost of the shipment since the German national was about to leave the
country the next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment
of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents. As stated by the trial court,
"(a) person would not simply entrust contraband and of considerable value at that as the
marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the
Accused. The Accused, on the other hand, would not simply accept such undertaking to take
custody of the packages and ship the same from a complete stranger on his mere say-so"
(Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to
explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary weight than the
testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA
571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the
Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal
Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment,
Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an
hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
113

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must
be credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van
Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant
did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant
should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the
contrary, appellant signed the contract as the owner and shipper thereof giving more weight to
the presumption that things which a person possesses, or exercises acts of ownership over, are
owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of
the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Footnotes
* Penned by Judge Romeo J. Callejo.
** It reads: "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."
*** Forged checks.







114

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 113271 October 16, 1997
WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA
CATOLICO, respondents.

DAVIDE, JR., J.:
Nor is he a true Servant [who] buys dear to share in the Profit with the Seller.
1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private
respondent Antonia Melodia Catolico (hereafter Catolico) not a "true Servant," thereby assailing
the 30 September 1993 decision
2
and December 1993 Resolution
3
of the National Labor
Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which sustained the
reinstatement and monetary awards in favor of private respondent
4
and denied the petitioners'
motion for reconsideration.
5

The facts are as follows:
Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter
WATEROUS) on 15 August 1988.
On 31 July 1989, Catolico received a memorandum
6
from WATEROUS Vice President-General
Manager Emma R. Co warning her not to dispense medicine to employees chargeable to the
latter's accounts because the same was a prohibited practice. On the same date, Co issued
another memorandum
7
to Catolico warning her not to negotiate with suppliers of medicine
without consulting the Purchasing Department, as this would impair the company's control of
purchases and, besides she was not authorized to deal directly with the suppliers.
As regards the first memorandum, Catolico did not deny her responsibility but explained that her
act was "due to negligence," since fellow employee Irene Soliven "obtained the medicines in bad
faith and through misrepresentation when she claimed that she was given a charge slip by the
Admitting Dept." Catolico then asked the company to look into the fraudulent activities of
Soliven.
8

In a memorandum
9
dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro
warned Catolico against the "rush delivery of medicines without the proper documents."
On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an
irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he
described as follows:
115

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045
with YSP Sales Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets
at P384.00 per unit. Previews P.O.s issued to YSP, Inc. showed that the price per bottle is
P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per bottle
(or total of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832
dated December 15, 1988. Verification was made to YSP, Inc. to determine the
discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc.
Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents
refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per
their check voucher no. 629552 (shown to the undersigned), which was paid to Ms.
Catolico through China Bank check no. 892068 dated November 9, 1989 . . . .
The undersigned talked to Ms. Catolico regarding the check but she denied having
received it and that she is unaware of the overprice. However, upon conversation with Ms.
Saldana, EDRC Espana Pharmacy Clerk, she confirmed that the check amounting to
P640.00 was actually received by Ms. Catolico. As a matter of fact, Ms. Catolico even
asked Ms. Saldana if she opened the envelope containing the check but Ms. Saldana
answered her "talagang ganyan, bukas." It appears that the amount in question (P640.00)
had been pocketed by Ms. Catolico.
10

Forthwith, in her memorandum
11
dated 37 January 1990, Co asked Catolico to explain, within
twenty-four hours, her side of the reported irregularity. Catolico asked for additional time to give
her explanation,
12
and she was granted a 48-hour extension from 1 to 3 February 1990.
However, on 2 February 1990, she was informed that effective 6 February 1990 to 7 March 1990,
she would be placed on preventive suspension to protect the interests of the company.
13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice
No. 266 for her to be able to make a satisfactory explanation. In said letter she protested
Saldaa's invasion of her privacy when Saldaa opened an envelope addressed to Catolico.
14

In a letter
15
to Co dated 10 February 1990, Catolico, through her counsel, explained that the
check she received from YSP was a Christmas gift and not a "refund of overprice." She also
averred that the preventive suspension was ill-motivated, as it sprang from an earlier incident
between her and Co's secretary, Irene Soliven.
On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a
memorandum
16
notifying Catolico of her termination; thus:
We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and
Feb. 10, 1990 respectively regarding our imposition of preventive suspension on you for
acts of dishonesty. However, said letters failed to rebut the evidences [sic] in our
possession which clearly shows that as a Pharmacist stationed at Espana Branch, you
actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at
P384.00/bottle with previous price of P320.00/bottle only. A check which you received in
the amount of P640.00 actually represents the refund of over price of said medicines and
this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.
Your actuation constitutes an act of dishonesty detrimental to the interest of the
company. Accordingly, you are hereby terminated effective March 8, 1990.
On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor
practice, illegal dismissal, and illegal suspension.
17

In his decision
18
of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor
practice against petitioners. Nevertheless, he decided in favor of Catolico because petitioners
116

failed to "prove what [they] alleged as complainant's dishonesty," and to show that any
investigation was conducted. Hence, the dismissal was without just cause and due process. He
thus declared the dismissal and suspension illegal but disallowed reinstatement, as it would not
be to the best interest of the parties. Accordingly, he awarded separation pay to Catolico
computed at one-half month's pay for every year of service; back wages for one year; and the
additional sum of P2,000.00 for illegal suspension "representing 30 days work." Arbiter Lopez
computed the award in favor of Catolico as follows:
30 days Preventive Suspension P2,000.00
Back wages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15

TOTAL AWARD P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the
Labor Arbiter erred in finding that Catolico was denied due process and that there was no just
cause to terminate her services.
In its decision
19
of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on
the ground that petitioners were not able to prove a just cause for Catolico's dismissal from her
employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by
YSP in favor of complainant, which her co-employee saw when the latter opened the envelope.
But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and
2) of Article III of the Constitution.
20
It concluded:
With the smoking gun evidence of respondents being rendered inadmissible, by virtue of
the constitutional right invoked by complainants, respondents' case falls apart as it is
bereft of evidence which cannot be used as a legal basis for complainant's dismissal.
The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the
appealed decision by deleting the award for illegal suspension as the same was already included
in the computation of the aggregate of the awards in the amount of P35,401.86.
Their motion for reconsideration having been denied, petitioners filed this special civil action
for certiorari, which is anchored on the following grounds:
I. Public respondent committed grave abuse of discretion in its findings of
facts.
II. Due process was duly accorded to private respondent.
III. Public respondent gravely erred in applying Section 3, Article III of the
1987 Constitution.
As to the first and second grounds, petitioners insist that Catolico had been receiving
"commissions" from YSP, or probably from other suppliers, and that the check issued to her on 9
November 1989 was not the first or the last. They also maintained that Catolico occupied a
confidential position and that Catolico's receipt of YSP's check, aggravated by her "propensity to
violate company rules," constituted breach of confidence. And contrary to the findings of NLRC,
Catolico was given ample opportunity to explain her side of the controversy.
117

Anent the third ground, petitioners submit that, in light of the decision in the People
v. Marti,
21
the constitutional protection against unreasonable searches and seizures refers to the
immunity of one's person from interference by government and cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion
by the government.
In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with
the NLRC's decision, as it was of the persuasion that (a) the conclusions reached by public
respondent are inconsistent with its findings of fact; and (b) the incident involving the opening of
envelope addressed to private respondent does not warrant the application of the constitutional
provisions. It observed that Catolico was given "several opportunities" to explain her side of the
check controversy, and concluded that the opportunities granted her and her subsequent
explanation "satisfy the requirements of just cause and due process." The OSG was also
convinced that Catolico's dismissal was based on just cause and that Catolico's admission of the
existence of the check, as well as her "lame excuse" that it was a Christmas gift from YSP,
constituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners' argument
that there was no violation of the right of privacy of communication in this case,
22
adding that
petitioner WATEROUS was justified in opening an envelope from one of its regular suppliers as it
could assume that the letter was a business communication in which it had an interest.
In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC
contends that petitioners miserably failed to prove their claim that it committed grave abuse of
discretion in its findings of fact. It then prays that we dismiss this petition.
In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal.
The check in issue was given to her, and she had no duty to turn it over to her employer.
Company rules do not prohibit an employee from accepting gifts from clients, and there is no
indication in the contentious check that it was meant as a refund for overpriced medicines.
Besides, the check was discovered in violation of the constitutional provision on the right to
privacy and communication; hence, as correctly held by the NLRC, it was inadmissible in
evidence.
Catolico likewise disputes petitioners' claim that the audit report and her initial response that
she never received a check were sufficient to justify her dismissal. When she denied having
received a check from YSP, she meant that she did not receive any refund of overprice, consistent
with her position that what she received was a token gift. All that can be gathered from the audit
report is that there was apparently an overcharge, with no basis to conclude that Catolico
pocketed the amount in collusion with YSP. She thus concluded that her dismissal was based on
a mere suspicion.
Finally, Catolico insists that she could not have breached the trust and confidence of
WATEROUS because, being merely a pharmacist, she did not handle "confidential information or
sensitive properties." She was doing the task of a saleslady: selling drugs and making
requisitions when supplies were low.
A thorough review of the record leads us to no other conclusion than that, except as to the third
ground, the instant petition must fail.
Concededly, Catolico was denied due process. Procedural due process requires that an employee
be apprised of the charge against him, given reasonable time to answer the charge, allowed
ample opportunity to be heard and defend himself, and assisted by a representative if the
employee so
desires.
23
Ample opportunity connotes every kind of assistance that management must accord
the employee to enable him to prepare adequately for his defense, including legal
representation.
24

118

In the case at bar, although Catolico was given an opportunity to explain her side, she was
dismissed from the service in the memorandum of 5 March 1990 issued by her Supervisor
after receipt of her letter and that of her counsel. No hearing was ever conducted after the
issues were joined through said letters. The Supervisor's memorandum spoke of "evidences
[sic] in [WATEROUS] possession," which were not, however, submitted. What the
"evidences" [sic] other than the sales invoice and the check were, only the Supervisor
knew.
Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove
just and valid cause for dismissing an employee, and its failure to discharge that burden would
result in a finding that the dismissal is unjustified.
25
Here, WATEROUS proved unequal to the
task.
It is evident from the Supervisor's memorandum that Catolico was dismissed because of an
alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence does not
establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who claims to have
discovered Catolico's inappropriate transaction, stated in his affidavit:
26

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in
violation of the [company] procedure, made an under the table deal with YSP Phils. to
supply WDRC needed medicines like Voren tablets at a jack-up price of P384.00 per
bottle of 50 mg. which has a previous price of only P320.00;
5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the
cost per bottle was indeed overpriced. The Accounting Department of YSP Phils. through
Ms. Estelita Reyes confirmed that there was really an overprice and she said that the
difference was refunded through their check voucher no. 629552 which was shown to me
and the payee is Melodia Catolico, through a China Bank Check No. 892068 dated
November 9, 1989.
It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita
Reyes never testified nor executed an affidavit relative to this case; thus, we have to reject the
statements attributed to her by Valdez. Hearsay evidence carries no probative value.
27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed
Co, through the former's memorandum
28
of 29 January 1990, that WATEROUS paid YSP
P3,840.00 "thru MBTC Check No. 222832," the said check was never presented in evidence, nor
was any receipt from YSP offered by petitioners.
Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an
overcharge. The purchase order dated 16 August 1989
29
stated that the Voren tablets cost
P320.00 per box, while the purchase order dated 5 October 1989
30
priced the Voren tablets at
P384.00 per bottle. The difference in price may then be attributed to the different packaging used
in each purchase order.
Assuming that there was an overcharge, the two purchase orders for the Voren tablets were
recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and
approved by Vice President-General Manager Emma R. Co. The purchase orders were silent as to
Catolico's participation in the purchase. If the price increase was objectionable to petitioners,
they or their officers should have disapproved the transaction. Consequently, petitioners had no
one to blame for their predicament but themselves. This set of facts emphasizes the exceedingly
incredible situation proposed by petitioners. Despite the memorandum warning Catolico not to
negotiate with suppliers of medicine, there was no proof that she ever transacted, or that she had
the opportunity to transact, with the said suppliers. Again, as the purchase orders indicate,
Catolico was not at all involved in the sale of the Voren tablets. There was no occasion for
119

Catolico to initiate, much less benefit from, what Valdez called an "under the table deal" with
YSP.
Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can
justify an employee's dismissal. Suspicion is not among the valid causes provided by the Labor
Code for the termination of
employment;
31
and even the dismissal of an employee for loss of trust and confidence must rest
on substantial grounds and not on the employer's arbitrariness, whims, caprices, or
suspicion.
32
Besides, Catolico was not shown to be a managerial employee, to which class of
employees the term "trust and confidence" is restricted.
33

As regards the constitutional violation upon which the NLRC anchored its decision, we find no
reason to revise the doctrine laid down in People vs. Marti
34
that the Bill of Rights does not
protect citizens from unreasonable searches and seizures perpetrated by private individuals. It is
not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults.
On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and
civil liabilities.
Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would
not be to the best interest of the parties, he correctly awarded separation pay to Catolico.
Separation pay in lieu of reinstatement is computed at one month's salary for every year of
service.
35
In this case, however, Labor Arbiter Lopez computed the separation pay at one-half
month's salary for every year of service. Catolico did not oppose or raise an objection. As such,
we will uphold the award of separation pay as fixed by the Labor Arbiter.
WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and
resolution of the National Labor Relations Commission dated 30 September 1993 and 2
December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as to its
reason for upholding the Labor Arbiter's decision, viz., that the evidence against private
respondent was inadmissible for having been obtained in violation of her constitutional rights of
privacy of communication and against unreasonable searches and seizures which is hereby set
aside.
Costs against petitioners.
SO ORDERED.
Bellosillo, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.
Footnotes
1 WILLIAM FENN, More fruits of Solitude, maxim 209, in I Harvard Classics 389
(Charles W. Eliot ed., 1937).
2 Per Commissioner Rogelio I. Rayala, with Commissioners Domingo H. Zapanta
and Edna Bonto-Perez, concurring. Original Record (OR), unpaginated; Annex "A"
of Petition, Rollo, 25-36.
3 OR, 86-92; Annex "J" of Petition, Rollo, 96-102.
4. OR, unpaginated.
5 Id.
120

6 OR, 15.
7 Id., 16.
8 Id., 60.
9 Id., 17.
10 OR, 18.
11 Id., 19.
12 Id., 32.
13 Id., 20.
14 Id., 21.
15 Id., 35.
16 OR, 36.
17 Id., 2.
18 Supra note 3.
19 Supra note 2.
20 These sections pertinently provide as follows:
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.
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.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
21 193 SCRA 57 [1991].
22 Citing People v. Marti, supra note 21.
23 Tiu v. NLRC, 215 SCRA 540, 551 [1992].
24 Maebo v. NLRC, 229 SCRA 240, 251 [1994].
121

25 Reno Foods, Inc. v. NLRC, 249 SCRA 379, 386 [1995]; Metro Transit
Organization, Inc. v. NLRC, G.R. No. 121574, 17 October 1996, 5-6.
26 Rollo, 71-72.
27 People v. Laurente, 255 SCRA 543, 567 (1996); Batiquin v. Court of Appeals,
258 SCRA 334, 342 [1996].
28 OR, 18.
29 Annex "A" of Petitioner's Reply to Complainant's Position Paper, OR, 42.
30 Annex "B," id., id., 43.
31 See LABOR CODE, Art. 282.
32 Falguera v. Linsangan, 251 SCRA 364, 376 [1995]; De la Cruz v. NLRC, G.R.
No. 119536, 17 February 1997, 7.
33 Marina Port Services, Inc. v. NLRC, 193 SCRA 420, 425 [1991]; De la Cruz v.
NLRC, supra note 32, at 7.
34 Supra note 21.
35 Reformist Union of R.B. Liner, Inc. v. NLRC, G.R. No. 120482, 27 January
1997, 9; De la Cruz v. NLRC, supra note 31, at 8.













122

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL
BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin
1
hereinafter referred
to as Respondents-Prosecutors several judges
2
hereinafter referred to as Respondents-
Judges issued, on different dates,
3
a total of 42 search warrants against petitioners
herein
4
and/or the corporations of which they were officers,
5
directed to the any peace officer, to
search the persons above-named and/or the premises of their offices, warehouses and/or
residences, and to seize and take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers,
journals, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursements receipts, balance sheets and
profit and loss statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used
or intended to be used as the means of committing the offense," which is described in the
applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the
Constitution and the Rules of Court because, inter alia: (1) they do not describe with
particularity the documents, books and things to be seized; (2) cash money, not mentioned in the
warrants, were actually seized; (3) the warrants were issued to fish evidence against the
aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures
were made in an illegal manner; and (5) the documents, papers and cash money seized were not
delivered to the courts that issued the warrants, to be disposed of in accordance with law on
March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari,
prohibition, mandamus and injunction, and prayed that, pending final disposition of the present
case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their
agents and /or representatives from using the effects seized as aforementioned or any copies
thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision
123

be rendered quashing the contested search warrants and declaring the same null and void, and
commanding the respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and
cash moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged,
6
(1) that the contested search warrants are
valid and have been issued in accordance with law; (2) that the defects of said warrants, if any,
were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the
petition. However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved,
insofar as the papers, documents and things seized from the offices of the corporations above
mentioned are concerned; but, the injunction was maintained as regards the papers, documents
and things found and seized in the residences of petitioners herein.
7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices
of the aforementioned corporations, and (b) those found and seized in the residences of
petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be.
8
Indeed, it
is well settled that the legality of a seizure can be contested only by the party whose rights have
been impaired thereby,
9
and that the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties.
10
Consequently, petitioners herein may not
validly object to the use in evidence against them of the documents, papers and things seized
from the offices and premises of the corporations adverted to above, since the right to object to
the admission of said papers in evidence belongsexclusively to the corporations, to whom the
seized effects belong, and may not be invoked by the corporate officers in proceedings against
them in their individual capacity.
11
Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded,
they were the rights of the corporation and not the rights of the other defendants. Next, it
is clear that a question of the lawfulness of a seizure can be raised only by one whose
rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the
constitutional rights of defendants whose property had not been seized or the privacy of
whose homes had not been disturbed; nor could they claim for themselves the benefits of
the Fourth Amendment, when its violation, if any, was with reference to the rights
of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the
question of the admissibility of the evidence based on an alleged unlawful search and
seizure does not extend to the personal defendants but
embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros.
Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein,
the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction
previously issued by this Court,
12
thereby, in effect, restraining herein Respondents-Prosecutors
from using them in evidence against petitioners herein.
124

In connection with said documents, papers and things, two (2) important questions need be
settled, namely: (1) whether the search warrants in question, and the searches and seizures
made under the authority thereof, are valid or not, and (2) if the answer to the preceding
question is in the negative, whether said documents, papers and things may be used in evidence
against petitioners herein.1wph1.t
Petitioners maintain that the aforementioned search warrants are in the nature of general
warrants and that accordingly, the seizures effected upon the authority there of are null and
void. In this connection, the Constitution
13
provides:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set
forth in said provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code)
and Revised Penal Code." In other words, nospecific offense had been alleged in said applications.
The averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against
whom it is sought has performed particular acts, or committed specific omissions, violating a
given provision of our criminal laws. As a matter of fact, the applications involved in this case do
not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the
highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and Revised Penal Code," as alleged in the aforementioned
applications without reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the
most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the
domicile and the privacy of communication and correspondence at the mercy of the whims
caprice or passion of peace officers. This is precisely the evil sought to be remedied by the
constitutional provision above quoted to outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times of keen political strife, when the party in power
feels that the minority is likely to wrest it, even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court
14
by providing in its counterpart, under the Revised Rules of Court
15
that "a search
warrant shall not issue but upon probable cause in connection with one specific offense." Not
satisfied with this qualification, the Court added thereto a paragraph, directing that "no search
warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants
was compounded by the description therein made of the effects to be searched for and seized, to
wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
125

showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights that the things to be seized be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that,
even if the searches and seizures under consideration were unconstitutional, the documents,
papers and things thus seized are admissible in evidence against petitioners herein. Upon
mature deliberation, however, we are unanimously of the opinion that the position taken in the
Moncado case must be abandoned. Said position was in line with the American common law
rule, that the criminal should not be allowed to go free merely "because the constable has
blundered,"
16
upon the theory that the constitutional prohibition against unreasonable searches
and seizures is protected by means other than the exclusion of evidence unlawfully
obtained,
17
such as the common-law action for damages against the searching officer, against
the party who procured the issuance of the search warrant and against those assisting in the
execution of an illegal search, their criminal punishment, resistance, without liability to an
unlawful seizure, and such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which
has been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending
official may have been protection enough; but that is true no longer. Only in case the
prosecution which itself controls the seizing officials, knows that it cannot profit by their
wrong will that wrong be repressed.
18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence against
a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights
to be secure against such searches and seizures, is of no value, and, so far as those thus
placed are concerned, might as well be stricken from the Constitution. The efforts of the
courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not
to be aided by the sacrifice of those great principles established by years of endeavor and
suffering which have resulted in their embodiment in the fundamental law of the land.
19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court.
20
After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books,
are led by it to close the only courtroom door remaining open to evidence secured by
official lawlessness in flagrant abuse of that basic right, reserved to all persons as a
specific guarantee against that very same unlawful conduct. We hold that all evidence
126

obtained by searches and seizures in violation of the Constitution is, by that same
authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them
by the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable
federal searches and seizures would be "a form of words," valueless and underserving of
mention in a perpetual charter of inestimable human liberties, so too, without that rule
the freedom from state invasions of privacy would be so ephemeral and so neatly severed
from its conceptual nexus with the freedom from all brutish means of coercing evidence as
not to permit this Court's high regard as a freedom "implicit in the concept of ordered
liberty." At the time that the Court held in Wolf that the amendment was applicable to the
States through the Due Process Clause, the cases of this Court as we have seen, had
steadfastly held that as to federal officers the Fourth Amendment included the exclusion
of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that
proposition. The right to when conceded operatively enforceable against the States, was
not susceptible of destruction by avulsion of the sanction upon which its protection and
enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne
Cases. Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches state or federal it was logically and
constitutionally necessarily that the exclusion doctrine an essential part of the right to
privacy be also insisted upon as an essential ingredient of the right newly recognized
by the Wolf Case. In short, the admission of the new constitutional Right by Wolf could not
tolerate denial of its most important constitutional privilege, namely, the exclusion of the
evidence which an accused had been forced to give by reason of the unlawful seizure. To
hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.
Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to
deter to compel respect for the constitutional guaranty in the only effectively available
way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system
of constitutional restraints on which the liberties of the people rest. Having once
recognized that the right to privacy embodied in the Fourth Amendment is enforceable
against the States, and that the right to be secure against rude invasions of privacy by
state officers is, therefore constitutional in origin, we can no longer permit that right to
remain an empty promise. Because it is enforceable in the same manner and to like effect
as other basic rights secured by its Due Process Clause, we can no longer permit it to be
revocable at the whim of any police officer who, in the name of law enforcement itself,
chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the
individual no more than that which the Constitution guarantees him to the police officer no
less than that to which honest law enforcement is entitled, and, to the courts, that judicial
integrity so necessary in the true administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the
applicant for a search warrant has competent evidence to establish probable cause of the
commission of a given crime by the party against whom the warrant is intended, then there is no
reason why the applicant should not comply with the requirements of the fundamental law.
Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge
to find that there is probable cause, and, hence, no justification for the issuance of the warrant.
The only possible explanation (not justification) for its issuance is the necessity
of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of
the absence of evidence to establish a probable cause.
127

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional
guarantee under consideration, overlooks the fact that violations thereof are, in general,
committed By agents of the party in power, for, certainly, those belonging to the minority could
not possibly abuse a power they do not have. Regardless of the handicap under which the
minority usually but, understandably finds itself in prosecuting agents of the majority, one
must not lose sight of the fact that the psychological and moral effect of the possibility
21
of
securing their conviction, is watered down by the pardoning power of the party for whose benefit
the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June
29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008,
Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club,
should be included among the premises considered in said Resolution as residences of herein
petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and
that, furthermore, the records, papers and other effects seized in the offices of the corporations
above referred to include personal belongings of said petitioners and other effects under their
exclusive possession and control, for the exclusion of which they have a standing under the
latest rulings of the federal courts of federal courts of the United States.
22

We note, however, that petitioners' theory, regarding their alleged possession of and control over
the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has
Been Advanced, notin their petition or amended petition herein, but in the Motion for
Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory
would appear to be readjustment of that followed in said petitions, to suit the approach
intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the
affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted
in support thereof, contain either inconsistent allegations, or allegations inconsistent with the
theory now advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed,
should we agree thereto. At any rate, we do not deem it necessary to express our opinion
thereon, it being best to leave the matter open for determination in appropriate cases in the
future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection
with the documents, papers and other effects thus seized in said residences of herein petitioners
is hereby made permanent; that the writs prayed for are granted, insofar as the documents,
papers and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied;
and that the petition herein is dismissed and the writs prayed for denied, as regards the
documents, papers and other effects seized in the twenty-nine (29) places, offices and other
premises enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:
128

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the
import of the deliberations of the Court on this case, I gather the following distinct conclusions:
1. All the search warrants served by the National Bureau of Investigation in this case are
general warrants and are therefore proscribed by, and in violation of, paragraph 3 of
section 1 of Article III (Bill of Rights) of the Constitution;
2. All the searches and seizures conducted under the authority of the said search
warrants were consequently illegal;
3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be,
and is declared, abandoned;
4. The search warrants served at the three residences of the petitioners
are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued
against the use of the documents, papers and effect seized in the said residences is made
permanent; and
5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated
that they have legal standing to move for the suppression of the documents, papers and
effects seized in the places other than the three residences adverted to above, the opinion
written by the Chief Justice refrains from expresslydeclaring as null and void the such
warrants served at such other places and as illegal the searches and seizures made
therein, and leaves "the matter open for determination in appropriate cases in the future."
It is precisely the position taken by the Chief Justice summarized in the immediately preceding
paragraph (numbered 5) with which I am not in accord.
I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the
search warrants served at places other than the three residences, and the illegibility of the
searches and seizures conducted under the authority thereof. In my view even the exacerbating
passions and prejudices inordinately generated by the environmental political and moral
developments of this case should not deter this Court from forthrightly laying down the law not
only for this case but as well for future cases and future generations. All the search warrants,
without exception, in this case are admittedly general, blanket and roving warrants and are
therefore admittedly and indisputably outlawed by the Constitution; and the searches and
seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente,
have no legal standing to ask for the suppression of the papers, things and effects seized from
places other than their residences, to my mind, cannot in any manner affect, alter or otherwise
modify the intrinsic nullity of the search warrants and the intrinsic illegality of the searches and
seizures made thereunder. Whether or not the petitioners possess legal standing the said
warrants are void and remain void, and the searches and seizures were illegal and remain illegal.
No inference can be drawn from the words of the Constitution that "legal standing" or the lack of
it is a determinant of the nullity or validity of a search warrant or of the lawfulness or illegality of
a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings submitted to
this Court the petitioners have the requisite legal standing to move for the suppression and
return of the documents, papers and effects that were seized from places other than their family
residences.
Our constitutional provision on searches and seizures was derived almost verbatim from the
Fourth Amendment to the United States Constitution. In the many years of judicial construction
and interpretation of the said constitutional provision, our courts have invariably regarded as
129

doctrinal the pronouncement made on the Fourth Amendment by federal courts, especially the
Federal Supreme Court and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or return of
documents, papers and effects which are the fruits of an unlawful search and seizure, may be
summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b)
ownership and/or control or possession actual or constructive of premises searched gives
"standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn
application for search warrant are "primarily" directed solely and exclusively against the
"aggrieved person," gives "standing."
An examination of the search warrants in this case will readily show that, excepting three, all
were directed against the petitioners personally. In some of them, the petitioners were named
personally, followed by the designation, "the President and/or General Manager" of the particular
corporation. The three warrants excepted named three corporate defendants. But the
"office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the
petitioners in all the other search warrants directed against the petitioners and/or "the President
and/or General Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of
April 2, 1962). The searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.
Ownership of matters seized gives "standing."
Ownership of the properties seized alone entitles the petitioners to bring a motion to return and
suppress, and gives them standing as persons aggrieved by an unlawful search and seizure
regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261
(1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States,
296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which
the defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an
apartment not belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir.
1925) (books seized from the defendant's sister but belonging to the defendant); Cf. Villano vs.
United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in
exclusive possession of the defendant).
In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held
that under the constitutional provision against unlawful searches and seizures, a person places
himself or his property within a constitutionally protected area, be it his home or his office, his
hotel room or his automobile:
Where the argument falls is in its misapprehension of the fundamental nature and scope
of Fourth Amendment protection. What the Fourth Amendment protects is the security a
man relies upon when heplaces himself or his property within a constitutionally protected
area, be it his home or his office, his hotel room or his automobile. There he is protected
from unwarranted governmental intrusion. And when he puts some thing in his filing
cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure
from an unreasonable search or an unreasonable seizure. So it was that the Fourth
Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the
purloining of the petitioner's private papers in Gouled, or the surreptitious electronic
surveilance in Silverman. Countless other cases which have come to this Court over the
years have involved a myriad of differing factual contexts in which the protections of the
Fourth Amendment have been appropriately invoked. No doubt, the future will bring
countless others. By nothing we say here do we either foresee or foreclose factual
situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct.
130

408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November
13, 1951). (Emphasis supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal interest in the records and documents seized, the
petitioners have standing to move for return and suppression by virtue of their proprietary or
leasehold interest in many of the premises searched. These proprietary and leasehold interests
have been sufficiently set forth in their motion for reconsideration and need not be recounted
here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all
the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises
2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate
offices (IBMC, USTC); had made improvements or furnished such offices; or had paid for the
filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually,
or through their respective spouses, owned the controlling stock of the corporations involved.
The petitioners' proprietary interest in most, if not all, of the premises searched therefore
independently gives them standing to move for the return and suppression of the books, papers
and affects seized therefrom.
In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of
the interest in the searched premises necessary to maintain a motion to suppress. After
reviewing what it considered to be the unduly technical standard of the then prevailing circuit
court decisions, the Supreme Court said (362 U.S. 266):
We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and seizures
subtle distinctions, developed and refined by the common law in evolving the body of
private property law which, more than almost any other branch of law, has been shaped
by distinctions whose validity is largely historical. Even in the area from which they
derive, due consideration has led to the discarding of those distinctions in the homeland
of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out
Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between
"lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be
determinative in fashioning procedures ultimately referable to constitutional safeguards.
See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961).
It has never been held that a person with requisite interest in the premises searched must own
the property seized in order to have standing in a motion to return and suppress. In Alioto vs.
United States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose
apartment the corporate records were seized successfully moved for their return. In United States
vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president
successfully moved for the return and suppression is to him of both personal and corporate
documents seized from his home during the course of an illegal search:
The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure. Under
the circumstances in the case at bar, the search and seizure were unreasonable and
unlawful. The motion for the return of seized article and the suppression of the evidence
so obtained should be granted. (Emphasis supplied).
Time was when only a person who had property in interest in either the place searched or the
articles seize had the necessary standing to invoke the protection of the exclusionary rule. But
in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice
Felix Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he
131

is under against criminal intrusion." This view finally became the official view of the U.S.
Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years
later, in 1960, in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step
further. Jones was a mere guest in the apartment unlawfully searched but the Court nonetheless
declared that the exclusionary rule protected him as well. The concept of "person aggrieved by an
unlawful search and seizure" was enlarged to include "anyone legitimately on premise where the
search occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth
Circuit held that the defendant organizer, sole stockholder and president of a corporation had
standing in a mail fraud prosecution against him to demand the return and suppression of
corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court
conclude that the defendant had standing on two independent grounds: First he had a
sufficient interest in the property seized, and second he had an adequate interest in the
premises searched (just like in the case at bar). A postal inspector had unlawfully searched the
corporation' premises and had seized most of the corporation's book and records. Looking
to Jones, the court observed:
Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by
an unlawful search and seizure." It tells us that appellant should not have been
precluded from objecting to the Postal Inspector's search and seizure of the corporation's
books and records merely because the appellant did not show ownership or possession of
the books and records or a substantial possessory interest in the invade premises . . .
(Henzel vs. United States, 296 F. 2d at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962).
In Villano, police officers seized two notebooks from a desk in the defendant's place of
employment; the defendant did not claim ownership of either; he asserted that several employees
(including himself) used the notebooks. The Court held that the employee had a protected
interest and that there also was an invasion of privacy. Both Henzel and Villanoconsidered also
the fact that the search and seizure were "directed at" the moving defendant. Henzel vs. United
States, 296 F. 2d at 682; Villano vs. United States, 310 F. 2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and went to Puerto
Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as
unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand
jury subpoena duces tecum directed to the custodian of his files. The Government contended that
the petitioner had no standing because the books and papers were physically in the possession
of the custodian, and because the subpoena was directed against the custodian. The court
rejected the contention, holding that
Schwimmer legally had such possession, control and unrelinquished personal rights in
the books and papers as not to enable the question of unreasonable search and seizure to
be escaped through the mere procedural device of compelling a third-party naked
possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861
(8th Cir. 1956).
Aggrieved person doctrine where the search warrant s primarily directed against said person
gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191
(1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers,
which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's
attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a
farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management."
132

The papers turned out to be private, personal and business papers together with corporate books
and records of certain unnamed corporations in which Birrell did not even claim ownership. (All
of these type records were seized in the case at bar). Nevertheless, the search in Birrell was held
invalid by the court which held that even though Birrell did not own the premises where the
records were stored, he had "standing" to move for the return of all the papers and properties
seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp.
870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that
It is overwhelmingly established that the searches here in question were directed solely
and exclusively against Birrell. The only person suggested in the papers as having
violated the law was Birrell. The first search warrant described the records as having
been used "in committing a violation of Title 18, United States Code, Section 1341, by the
use of the mails by one Lowell M. Birrell, . . ." The second search warrant was captioned:
"United States of America vs. Lowell M. Birrell. (p. 198)
Possession (actual or constructive), no less than ownership, gives standing to move to
suppress. Such was the rule even before Jones. (p. 199)
If, as thus indicated Birrell had at least constructive possession of the records stored with
Dunn, it matters not whether he had any interest in the premises searched. See
also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432
U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).
The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not
appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the
present petitioners; as in Birrell, many personal and corporate papers were seized from premises
not petitioners' family residences; as in Birrell, the searches were "PRIMARILY DIRECTED
SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents were
suppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection
with the premises raided is much closer than in Birrell.
Thus, the petitioners have full standing to move for the quashing of all the warrants regardless
whether these were directed against residences in the narrow sense of the word, as long as the
documents were personal papers of the petitioners or (to the extent that they were corporate
papers) were held by them in a personal capacity or under their personal control.
Prescinding a from the foregoing, this Court, at all events, should order the return to the
petitioners all personaland private papers and effects seized, no matter where these were seized,
whether from their residences or corporate offices or any other place or places.
The uncontradicted sworn statements of the petitioners in their, various pleadings submitted to
this Court indisputably show that amongst the things seized from the corporate offices and other
places were personal and private papers and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which where the
objects of the unlawful searches and seizures, I submit that the grouping should be:
(a) personal or private papers of the petitioners were they were unlawfully seized, be it their
family residences offices, warehouses and/or premises owned and/or possessed (actually or
constructively) by them as shown in all the search and in the sworn applications filed in securing
the void search warrants and (b) purely corporate papers belonging to corporations. Under such
categorization or grouping, the determination of which unlawfully seized papers, documents and
things arepersonal/private of the petitioners or purely corporate papers will have to be left to the
lower courts which issued the void search warrants in ultimately effecting the suppression
and/or return of the said documents.
133

And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear
legal standing to move for the suppression of purely corporate papers as "President and/or
General Manager" of the corporations involved as specifically mentioned in the void search
warrants.
Finally, I must articulate my persuasion that although the cases cited in my disquisition were
criminal prosecutions, the great clauses of the constitutional proscription on illegal searches and
seizures do not withhold the mantle of their protection from cases not criminal in origin or
nature.
Footnotes
1
Hon. Jose W. Diokno, in his capacity as Secretary of Justice, Jose Lukban, in his
capacity as Acting Director, National Bureau of Investigation, Special Prosecutors Pedro
D. Cenzon, Efren I. Plana and Manuel Villareal, Jr. and Assistant Fiscal Maneses G.
Reyes, City of Manila.
2
Hon. Amado Roan, Judge of the Municipal (now City) Court of Manila, Hon. Roman
Cansino, Judge of the Municipal (now City) Court of Manila, Hon. Hermogenes Caluag,
Judge of the Court of First Instance of Rizal, Quezon City Branch, Hon. Eulogio Mencias,
Judge of the Court of First Instance of Rizal, Pasig Branch, and Hon. Damian Jimenez,
Judge of the Municipal (now City) Court of Quezon City.
3
Covering the period from March 3 to March 9, 1962.
4
Harry S. Stonehill, Robert P. Brooks, John J. Brooks and Karl Beck.
5
U.S. Tobacco Corporation, Atlas Cement Corporation, Atlas Development Corporation,
Far East Publishing Corporation (Evening News), Investment Inc., Industrial Business
Management Corporation, General Agricultural Corporation, American Asiatic Oil
Corporation, Investment Management Corporation, Holiday Hills, Inc., Republic Glass
Corporation, Industrial and Business Management Corporation, United Housing
Corporation, The Philippine Tobacco-Flue-Curing and Redrying Corporation, Republic
Real Estate Corporation and Merconsel Corporation.
6
Inter alia.
7
"Without prejudice to explaining the reasons for this order in the decision to be rendered
in the case, the writ of preliminary injunction issued by us in this case against the use of
the papers, documents and things from the following premises: (1) The office of the U.S.
Tobacco Corp. at the Ledesma Bldg., Arzobispo St., Manila; (2) 932 Gonzales, Ermita,
Manila; (3) office at Atlanta St. bounded by Chicago, 15th & 14th Sts., Port Area, Manila;
(4) 527 Rosario St., Mla.; (5) Atlas Cement Corp. and/or Atlas Development Corp.,
Magsaysay Bldg., San Luis, Ermita, Mla.; (6) 205 13th St., Port Area, Mla.; (7) No. 224
San Vicente St., Mla.; (8) Warehouse No. 2 at Chicago & 23rd Sts., Mla.; (9) Warehouse at
23rd St., between Muelle de San Francisco & Boston, Port Area, Mla.; (10) Investment
Inc., 24th St. & Boston; (11) IBMC, Magsaysay Bldg., San Luis, Mla.; (12) General
Agricultural Corp., Magsaysay Bldg., San Luis, Manila; (13) American Asiatic Oil Corp.,
Magsaysay Bldg., San Luis, Manila; (14) Room 91, Carmen Apts.; Dewey Blvd., Manila;
(15) Warehouse Railroad St. between 17 & 12 Sts., Port Area, Manila; (16) Rm. 304, Army
& Navy Club, Manila, South Blvd.; (17) Warehouse Annex Bldg., 18th St., Port Area,
Manila; (18) Rm. 81 Carmen Apts.; Dewey Blvd., Manila; (19) Holiday Hills, Inc., Trinity
Bldg., San Luis, Manila; (20) No. 2008 Dewey Blvd.; (21) Premises of 24th St. & Boston,
Port Area, Manila; (22) Republic Glass Corp., Trinity Bldg., San Luis, Manila; (23) IBMC,
2nd Floor, Trinity Bldg., San Luis, Manila; (24) IBMC, 2nd Flr., Gochangco Blg., 610 San
134

Luis, Manila; (25) United Housing Corp., Trinity Bldg., San Luis, Manila; (26) Republic
Real Estate Corp., Trinity Bldg., San Luis, Manila; (27) 1437 Colorado St., Malate, Manila;
(28) Phil. Tobacco Flue-Curing, Magsaysay Bldg., San Luis, Manila and (29) 14 Baldwin
St., Sta. Cruz, Manila, in the hearing of Deportation Cases Nos. R-953 and 955 against
petitioners, before the Deportation Board, is hereby lifted. The preliminary injunction
shall continue as to the papers, documents and things found in the other premises
namely: in those of the residences of petitioners, as follows: (1) 13 Narra Road, Forbes
Park, Makati, Rizal; (2) 15 Narra Road, Forbes Park, Makati, Rizal; and (3) 8 Urdaneta
Avenue, Urdaneta Village, Makati, Rizal."
8
Newingham, et al. vs. United States, 4 F. 2d. 490.
9
Lesis vs. U.S., 6 F. 2d. 22.
10
In re Dooley (1931) 48 F 2d. 121; Rouda vs. U.S., 10 F. 60 2d 916; Lusco vs. U.S. 287 F.
69; Ganci vs. U.S., 287 F. Moris vs. U.S., 26 F. 2d 444.
11
U.S. vs. Gass 17 F. 2d. 997; People vs. Rubio, 57 Phil. 384, 394.
12
On March 22, 1962.
13
Section 1, paragraph 3, of Article III thereof.
14
Reading: . . . A search warrant shall not issue but upon probable cause to be
determined by the judge or justice of the peace after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
15
. . . A search warrant shall not issue but upon probable cause in connection with one
specific offense to be determined by the judge or justice of the peace after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and persons or things to be seized.
No search warrant shall issue for more than one specific offense. (Sec. 3, Rule 126.)
16
People vs. Defore, 140 NE 585.
17
Wolf vs. Colorado, 93 L. ed. 1782.
18
Pugliese (1945) 133 F. 2d. 497.
19
Weeks vs. United States (1914) 232 U.S. 383, 58 L. ed. 652, 34 S. Ct. 341; emphasis
supplied.
20
Gouled vs. United States (1921) 255 US 298, 65 L. ed, 647, 41 S. Ct. 261; Olmstead vs.
United States (1928) 277 US 438, 72 L. ed. 944, 48 S. Ct. 564, Wolf vs. Colorado, 338 US
25, 93 L. ed. 1782, 69 S. Ct. 1359; Elkins vs. United States, 364 US 206, 4 L. ed. 2d.
1669, 80 S. Ct. 1437 (1960); Mapp vs. Ohio (1961), 367 US 643, 6 L. ed. 2d. 1081, 81 S.
Ct. 1684.
21
Even if remote.
135

22
Particularly, Jones vs. U.S. 362 U.S. 257; Alioto vs. U.S., 216 Fed. Supp. 49: U.S. vs.
Jeffries, 72 S. Ct. 93: Villano vs, U.S., 300 Fed. 2d 680; and Henzel vs. U.S., 296 Fed. 2d
650.
CASTRO, J., CONCURRING AND DISSENTING:
*
Attorney-client relationship played no part in the decision of the case.
























136

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC., petitioners,
vs.

THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE
JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.
The Solicitor General for respondents.

ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory
and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982
by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of
Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City,
and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the
"Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and
printing machines, equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and control of
petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be
issued for the return of the seized articles, and that respondents, "particularly the Chief Legal
Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of
Quezon City, their representatives, assistants, subalterns, subordinates, substitute or
successors" be enjoined from using the articles thus seized as evidence against petitioner Jose
Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of
Quezon City, entitled People v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the petition. The
plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983,
later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ
of preliminary mandatory injunction, manifested that respondents "will not use the
aforementioned articles as evidence in the aforementioned case until final resolution of the
137

legality of the seizure of the aforementioned articles. ..."
2
With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that petitioners had come
to this Court without having previously sought the quashal of the search warrants before
respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this
Court, should have filed a motion to quash said warrants in the court that issued them.
3
But
this procedural flaw notwithstanding, we take cognizance of this petition in view of the
seriousness and urgency of the constitutional issues raised not to mention the public interest
generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely
publicized in all metropolitan dailies. The existence of this special circumstance justifies this
Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice
Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo,
4
"it is always in the power of the
court [Supreme Court] to suspend its rules or to except a particular case from its operation,
whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is
laid on the fact that while said search warrants were issued on December 7, 1982, the instant
petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of
more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to do that
which, by exercising due diligence, could or should have been done earlier. It is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party
entitled to assert it either has abandoned it or declined to assert it.
5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the
petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16, 1983, more
than half a year after the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had waited
this long to bring their case to court, it was because they tried at first to exhaust
other remedies. The events of the past eleven fill years had taught them that
everything in this country, from release of public funds to release of detained
persons from custody, has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through
counsel Antonio Coronet asking the return at least of the printing equipment and
vehicles. And after such a letter had been sent, through Col. Balbino V. Diego,
Chief Intelligence and Legal Officer of the Presidential Security Command, they
were further encouraged to hope that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come to
Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial
efforts exerted by petitioners quite evidently negate the presumption that they had abandoned
their right to the possession of the seized property, thereby refuting the charge of laches against
them.
138

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked
as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped
from challenging the validity of the search warrants. We do not follow the logic of respondents.
These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he
pleases with them, within legal bounds. The fact that he has used them as evidence does not and
cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath
or affirmation of the applicant and his witnesses, as mandated by the above-quoted
constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court .
6
This objection,
however, may properly be considered moot and academic, as petitioners themselves conceded
during the hearing on August 9, 1983, that an examination had indeed been conducted by
respondent judge of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No.
19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the
latter address on the ground that the two search warrants pinpointed only one place where
petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e.,
No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant
No. 20- 82[b] which states:
Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended and he
is keeping and concealing the same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It
would be quite absurd and illogical for respondent judge to have issued two warrants intended
for one and the same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla himself who headed the
team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue,
Quezon City, which address appeared in the opening paragraph of the said warrant.
7
Obviously
this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the
place intended in the warrant is relevant. This would seem to be especially true where the
executing officer is the affiant on whose affidavit the warrant had issued, and when he knows
that the judge who issued the warrant intended the building described in the affidavit, And it has
also been said that the executing officer may look to the affidavit in the official court file to
resolve an ambiguity in the warrant as to the place to be searched."
8

3. Another ground relied upon to annul the search warrants is the fact that although the
warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners
Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized
under a search warrant, to wit:
139

Sec. 2. Personal Property to be seized. A search warrant may be issued for the
search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the
offense; and
[c] Property used or intended to be used as the means of
committing an offense.
The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has
control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was
alleged to have in relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under the
disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery,
receptables, instruments or implements intended by the owner of the tenement for an industry
or works which may be carried on in a building or on a piece of land and which tend directly to
meet the needs of the said industry or works" are considered immovable property. In Davao
Sawmill Co. v. Castillo
9
where this legal provision was invoked, this Court ruled that machinery
which is movable by nature becomes immobilized when placed by the owner of the tenement,
property or plant, but not so when placed by a tenant, usufructuary, or any other person having
only a temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building on which
the machineries were placed. This being the case, the machineries in question, while in fact
bolted to the ground remain movable property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom.
10
The application was
accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of
the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly
issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such
facts and circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the objects sought in connection with the offense are in
the place sought to be searched. And when the search warrant applied for is directed against a
140

newspaper publisher or editor in connection with the publication of subversive materials, as in
the case at bar, the application and/or its supporting affidavits must contain a specification,
stating with particularity the alleged subversive material he has published or is intending to
publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's
application that petitioner "is in possession or has in his control printing equipment and other
paraphernalia, news publications and other documents which were used and are all
continuously being used as a means of committing the offense of subversion punishable under
Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis for the issuance of a search
warrant and it was a grave error for respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement contained
in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered
and collated by our unit clearly shows that the premises above- mentioned and the articles and
things above-described were used and are continuously being used for subversive activities in
conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire
Movement, Movement for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he
may produce; 14 the Constitution requires no less than personal knowledge by the complainant
or his witnesses of the facts upon which the issuance of a search warrant may be justified.
In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of probable cause." As couched, the
quoted averment in said joint affidavit filed before respondent judge hardly meets the test of
sufficiency established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe the
articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment,
typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of the
"WE FORUM" newspaper and any and all documents communication, letters and
facsimile of prints related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to
promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement;
and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
141

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme
Court for being too general. In like manner, directions to "seize any evidence in connectionwith
the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a
search warrant which authorized the seizure of any "paraphernalia which could be used to
violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the
articles sought to be seized under the search warrants in question cannot be characterized
differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history:
the era of disaccord between the Tudor Government and the English Press, when "Officers of the
Crown were given roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan Reference herein to such historical
episode would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security.
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure,
these premises were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines on the ground that
they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary of National Defense."
It is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for sequestration
of the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in
the premises.
Cendaa said that because of the denial the newspaper and its equipment remain
at the disposal of the owners, subject to the discretion of the court. 19
142

That the property seized on December 7, 1982 had not been sequestered is further confirmed by
the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S.
Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE
FORUM " case.
20
In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of our
authorities to close the paper's printing facilities and confiscate the equipment
and materials it uses.
21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set
aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby
granted and all articles seized thereunder are hereby ordered released to petitioners. No costs.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez,
Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.
Separate Opinions
ABAD SANTOS, J., concurring
I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish
to state my own reasons for holding that the search warrants which are the subject of the
petition are utterly void.
The action against "WE FORUM" was a naked suppression of press freedom for the search
warrants were issued in gross violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points,
namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)
Any search warrant is conducted in disregard of the points mentioned above will result in wiping
"out completely one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)
The two search warrants were issued without probable cause. To satisfy the requirement of
probable cause a specific offense must be alleged in the application; abstract averments will not
suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the
claim that certain objects were being used as instruments and means of committing the offense
of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific
provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of
the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.
The search warrants are also void for lack of particularity. Both search warrants authorize Col.
Rolando Abadilla to seize and take possession, among other things, of the following:
143

Subversive documents, pamphlets, leaflets, books and other publication to
promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.
The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive?
What did they contain to make them subversive? There is nothing in the applications nor in the
warrants which answers the questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.
In point of fact, there was nothing subversive published in the WE FORUM just as there is
nothing subversive which has been published in MALAYA which has replaced the former and has
the same content but against which no action has been taken.
Conformably with existing jurisprudence everything seized pursuant to the warrants should be
returned to the owners and all of the items are subject to the exclusionary rule of evidence.
Teehankee, J., concur.
Separate Opinions
ABAD SANTOS, J., concurring
I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish
to state my own reasons for holding that the search warrants which are the subject of the
petition are utterly void.
The action against "WE FORUM" was a naked suppression of press freedom for the search
warrants were issued in gross violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points,
namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)
Any search warrant is conducted in disregard of the points mentioned above will result in wiping
"out completely one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)
The two search warrants were issued without probable cause. To satisfy the requirement of
probable cause a specific offense must be alleged in the application; abstract averments will not
suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the
claim that certain objects were being used as instruments and means of committing the offense
of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific
provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of
the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.
The search warrants are also void for lack of particularity. Both search warrants authorize Col.
Rolando Abadilla to seize and take possession, among other things, of the following:
Subversive documents, pamphlets, leaflets, books and other publication to
promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.
144

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive?
What did they contain to make them subversive? There is nothing in the applications nor in the
warrants which answers the questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.
In point of fact, there was nothing subversive published in the WE FORUM just as there is
nothing subversive which has been published in MALAYA which has replaced the former and has
the same content but against which no action has been taken.
Conformably with existing jurisprudence everything seized pursuant to the warrants should be
returned to the owners and all of the items are subject to the exclusionary rule of evidence.
Teehankee, J., concur.
Footnotes
1 Petition, P. 44, Rollo.
2 Manifestation and Opposition, p. 75, Rollo.
3 Templo v. Dela Cruz, 60 SCRA 295.
4 463 Phil. 275.
5 Tijam v. Sibonghanoy, 23 SCRA 29.
6 Sec. 4, Rule 126, Rules of Court provides:
Sec. 4. Examination of the Applicant. The municipal or city judge must, before
issuing the warrant, personally examine on oath or affirmation the complainant
and any witnesses he may produce and take their deposition in writing and attach
them to the record, in addition to any affidavits presented to them.
7 The opening paragraph of Search Warrant No. 20- 82 [b] reads:
"It appearing to the satisfaction of the undersigned after examination under oath
of Maj. Alejandro M. Gutierrez and Lt. Pedro U. Tango, that there are good and
sufficient reason to believe that Jose Burgos, Jr. Publisher-Editor of "WE FORUM"
with office address at 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, has in his possession and control at said address the following; ... :
8 68 Am. Jur. 2d., 729.
9 61 Phil. 709. Annex "C", Petition, pp. 51-52,
10 Rollo.
11 Annex "B", Petition, pp. 53-54, Rollo.
12 Annex "C", Petition, p. 51, Rollo.
13 Annex "D", Petition, p. 54, Rollo.
145

14 Sec. 3, Art. IV, 1973 Constitution.
15 64 Phil. 33.
18 Sec. 9. Art. IV of the Constitution
19 Annex "K", Consolidated Reply, p. 175, Rollo.
20 Annex "L", Consolidated Reply, p. 178, Rollo.
21 Annex "M", Consolidated Reply, p. 179, Rollo.



















146

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 89103 July 14, 1995
LEON TAMBASEN, petitioner,
vs.

PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL PROSECUTOR GLORIA
LASTIMOSA MARCOS and HON. CICERO U. QUERUBIN in his capacity as Presiding Judge
of the Regional Trial Court of Negros Occidental, Branch 44, Bacolod City, respondents.

QUIASON, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set
aside the Order dated July 20, 1989 of the Regional Trial Court (RTC), Branch 44, Bacolod City
in Civil Case No. 5331, which nullified the order earlier issued by the Municipal Trial Circuit
Court (MTCC) of the City of Bacolod. The MTCC Order directed the return to petitioner of the
amount of P14,000.00 which had been seized by the police.
I
On August 31, 1988, P/Sgt. Flumar Natuel applied for the issuance of a search warrant from the
MTCC, alleging that he received information that petitioner had in his possession at his house at
the North Capitol Road, Bacolod City, "M-16 Armalite Rifles (Mags & Ammos), Hand Grenades,
.45 Cal. Pistols (Mags & Ammos), Dynamite Sticks and Subversive Documents," which articles
were "used or intended to be used" for illegal purposes (Rollo, p. 14). On the same day, the
application was granted by the MTCC with the issuance of Search Warrant No. 365, which
allowed the seizure of the items specified in the application (Rollo, p. 15).
At around 6:30 P.M. of September 9, 1988, a police team searched the house of petitioner and
seized the following articles:
(1) Two (2) envelopes containing cash in the total amount of P14,000.00 (one
envelope P10,000.00 and another P4,000.00);
(2) one (1) AR 280 handset w/antenae (sic) SN-00485;
(3) one (1) YAESU FM Transceiver FT 23R w/Antenae (sic);
(4) one (1) ALINCO ELH 230D Base;
(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP 128 VAC;
147

(6) one (1) brown Academy Notebook & Assorted papers; and
(7) Four (4) handsets battery pack (Rollo, p. 16).
On September 19, 1988, the MTCC, acting on petitioner's urgent motion for the return of the
seized articles, issued an order directing Sgt. Natuel to make a return of the search warrant. The
following day, Sgt. Natuel submitted a report to the court. Not considering the report as a "return
in contemplation of law," petitioner filed another motion praying that Sgt. Natuel be required to
submit a complete and verified inventory of the seized articles. Thereafter, Sgt. Natuel manifested
that although he was the applicant for the issuance of the search warrant, he was not present
when it was served.
On October 7, 1988, petitioner filed before the MTCC a motion praying that the search and
seizure be declared illegal and that the seized articles be returned to him. In his answer to the
motion, Lt. Col. Nicolas Torres, the station commander of the Bacolod City Police, said that the
amount of P14,000.00 had been earmarked for the payment of the allowance of the Armed City
Partisan (ACP) and other "known NPA personalities" operating in the City of Bacolod.
On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return the money
seized to petitioner. The court opined that in the implementation of the search warrant, any
seizure should be limited to the specific items covered thereby. It said that the money could not
be considered as "subversive documents"; it was neither stolen nor the effects of gambling.
Three months later, the Solicitor General filed before the RTC, Branch 44, Bacolod City a petition
for certiorari seeking the annulment of the order of the MTCC (Civil Case No. 5331). The petition
alleged that assuming that the seizure of the money had been invalid, petitioner was not entitled
to its return citing the rulings in Alih v. Castro, 151 SCRA 279 (1987) and Roan v. Gonzales, 145
SCRA 687 (1986). In those cases, the Court held that pending the determination of the legality of
the seizure of the articles, they should remain in custodia legis. The petition also averred that a
criminal complaint for "any of the crimes against public order as provided under Chapter I, Title
III of the Revised Penal Code" had been filed with the City Fiscal (BC I.S. No. 88-1239) and
therefore, should the money be found as having been earmarked for subversive activities, it
should be confiscated pursuant to Article 45 of the Revised Penal Code.
On July 20, 1989, RTC, Branch 44 issued an order granting the petition for certiorari and
directing the clerk of court to return to the MTCC the money pending the resolution of the
preliminary investigation being conducted by the city prosecutor on the criminal complaint. In
said order, the RTC held:
The Court observed that private respondent Leon Tambasen never questioned the
validity of the search warrant issued by respondent Judge Demosthenes L.
Magallanes. A perusal of private respondent's "Motion to Declare Search and
Seizure Illegal and to Return Seized Properties" dated October 7, 1988 shows that
respondent Tambasen questions not the validity of the search warrant issued by
respondent Judge Demosthenes Magallanes, but rather, the execution or
implementation of the said warrant principally on the ground that the articles
seized are not allegedly mentioned in the search warrant. However, the question
thus raised involves matters determinative of the admissibility in evidence and the
legality of the articles seized. These matters, it is submitted, go beyond the
immediate and limited jurisdiction of the respondent Judge to inquire into the
validity of the search warrant he issued. These issues which relate exclusively or
principally with the intrinsic and substantive merits of the case or cases which are
being prepared against respondent Tambasen, and insofar as Tambasen is
concerned involve matters of defense which should be properly raised at the
criminal action or actions that may be filed against respondent Leon Tambasen
148

(see DOH v. Sy Chi Siong Co., Inc. et. al., G.R. No. 85289, Feb. 20, 1989). They
cannot be addressed to the respondent Judge because the respondent Judge has
no jurisdiction over the said issue. It is clear therefore that respondent Judge has
transcended the boundaries of his limited jurisdiction and had in effect
encroached upon the jurisdiction of the appropriate trial court or courts that will
try the criminal case or cases against respondent Leon Tambasen, in issuing the
assailed order dated December 23, 1988. Ostensibly, the assailed order, if not
corrected, will unduly deprive the prosecution of its right to present the evidence
in question and, consequently, will improperly oust the trial court, which will try
the criminal case or cases against private respondent Leon Tambasen of its
original and exclusive jurisdiction to rule on the admissibility and legality of the
said evidence. This order of respondent court is tantamount to a denial of due
process. It may be considered as a grave abuse of discretion reviewable
by certiorari (Esparagoza v. Tan, 94 Phil. 749) (Rollo, pp. 47-48).
Consequently, petitioner filed the instant petition for certiorari and prohibition praying for the
issuance of a temporary restraining order commanding the city prosecutor to cease and desist
from continuing with the preliminary investigation in BC I.S. No. 88-1239 and the RTC from
taking any step with respect to Civil Case No. 5331. He also prayed that Search Warrant No. 365
and the seizure of his personal effects be declared illegal and that the Order of July 20, 1989 be
reversed and annulled.
Petitioner contended that the search warrant covered three offenses: "(1) illegal possession of
armalite rifle and .45 cal. pistol; (2) illegal possession of hand grenade and dynamite sticks; and
(3) illegal possession of subversive documents" (Rollo, pp. 3-4) in violation of Section 3 of Rule
126 of the Revised Rules of Court. He assailed the legality of the seizure of the articles which
were not mentioned in the search warrant. Moreover, since a complaint against him was filed
only after his house had been searched, petitioner claimed that the police were "on a fishing
expedition."
During the pendency of the instant petition, a series of events related to the questioned search
and seizure transpired. At around 10:30 P.M. of March 1, 1990, petitioner, who was then on
board a passenger vehicle, was arrested by intelligence operatives in Barangay Mandalagan,
Bacolod City and forthwith detained. On the strength of sworn statements of two rebel returnees,
the police filed a complaint for subversion against petitioner with the Office of the City
Prosecutor. The following day, the City Prosecutor filed an information for violation of the Anti-
Subversion Law against petitioner with RTC, Branch 42, Bacolod City (Criminal Case No. 8517).
An order for the arrest of petitioner was issued on March 2, 1990.
On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case No. 8517.
On March 15, 1990, RTC, Branch 42 granted petitioner's motion to quash and recalled the
warrant of arrest. The court also directed the City Prosecutor to resolve BC-I.S. Case No. 88-
1239.
On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos manifested before
RTC, Branch 42 that petitioner had been "dropped" from BC-I.S. No. 88-1239. However, the City
Prosecutor had, by then, filed a motion for the reconsideration of said Resolution of March 15,
1990. The motion was denied.
Under this factual matrix, this Court is confronted with the question of whether RTC, Branch 44
gravely abused its discretion in directing that the money seized from petitioner's house,
specifically the amount of P14,000.00, be retained and kept in custodia legis.
149

On its face, the search warrant violates Section 3, Rule 126 of the Revised Rules of Court, which prohibits
the issuance of a search warrant for more than one specific offense. The caption of Search Warrant No. 365
reflects the violation of two special laws: P.D. No. 1866 for illegal possession of firearms, ammunition and
explosives; and R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a "scatter-
shot warrant" and totally null and void (People v. Court of Appeals, 216 SCRA 101 [1992]).
Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the
parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution
requires that a search warrant should particularly describe the things to be seized. "The evident purpose
and intent of the requirement is to limit the things to be seized to those, and only those, particularly
described in the search warrant to leave the officers of the law with no discretion regarding what articles
they should seize, to the end that unreasonable searches and seizures may not be made and that abuses
may not be committed" (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.] Inc. v. Ruiz, 37
SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also
aimed at preventing violations of security in person and property and unlawful invasions of the sanctity of
the home, and giving remedy against such usurpations when attempted (People v. Damaso, 212 SCRA 547
[1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).
Clearly then, the money which was not indicated in the search warrant, had been illegally seized from
petitioner. The fact that the members of the police team were doing their task of pursuing subversives is not
a valid excuse for the illegal seizure. The presumption juris tantum of regularity in the performance of official
duty cannot by itself prevail against the constitutionally protected rights of an individual (People v. Cruz,
231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the foundation
of the power to search and seize, such power must be exercised and the law enforced without transgressing
the constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil.
230, 235 [1937]). As the Court aptly puts it in Bagalihog v. Fernandez, 198 SCRA 614 (1991), "[z]eal in the
pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors."
For the retention of the money seized by the police officers, approval of the court which issued the search
warrant is necessary (People v. Gesmundo, 219 SCRA 743 [1993]). In like manner, only the court which
issued the search warrant may order their release (Temple v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan
v. Gomez, 21 SCRA 1275 [1967]).
Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in violation of the right
against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding.
The information in Criminal Case No. 8517, with petitioner as the sole accused, was ordered quashed by
the trial court and the prosecution's motion for the reconsideration of the quashal order had been denied.
Even in BC I.S. Case No. 88-1239, which was being investigated by Assistant Provincial Prosecutor Marcos,
petitioner was dropped as a respondent. Hence, there appears to be no criminal prosecution which can
justify the retention of the seized articles in custodia legis.
A subsequent legal development added another reason for the return to him of all the seized articles: R.A.
No. 1700, the Anti-Subversion Law, was repealed by R.A. No. 7636 and, therefore, the crimes defined in the
repealed law no longer exist.
WHEREFORE, the petition is GRANTED and the People of the Philippines is ORDERED to RETURN the
money seized to petitioner.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo, and Kapunan, JJ., concur.


150

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-60349-62 December 29, 1983
CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L. BRINGAS, ERNESTO
M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. GUIRITAN, MACARIO B. BALANSAG and
ROSARIO F. DABALOS, all of Butuan City, and the PEOPLE OF THE
PHILIPPINES, petitioners,
vs.
HON. JUDGE NAPOLEON D. VILLANUEVA, in his capacity as City Judge of
Butuan, respondent.
The Solicitor General for respondent.

ESCOLIN, J.:
The legal question raised in this petition is whether the certification of the investigating fiscal in
the information as to the existence of probable cause obligates respondent City Judge to issue a
warrant of arrest.
The antecedent facts are not disputed. During the period from March 30 to April 14, 1982,
petitioners, The City Fiscal of Butuan City and his assistants filed in the City Court of Butuan
the following informations, to wit:
CRIMINALCASE
NO.
TITLE
1220 People vs,
Jimmy Tan
Slight Phy.
Inj.
12210 People vs.
Carlito
Fortun
Violation
of P.D.
1306
12211 People vs.
Jarail
Majini
-do-
12212 People vs.
Amelita Dy
Violation.
of B.P. 22
12213 People vs.
Angelito
Dy
-do-
12214 People vs.
Jesus
Aloyan
Estafa
151

12215 People vs,
Bebot
Lauron
Mal.
Mischief
12216 People vs.
Mariano
Trani
Usurption
of
authority
Antonio
Monghit
authority
12217 People vs.
EIorde
Subingbing
Alarm &
Scandal
Fernando
Sagay

12218 People vs.
Perla
Trasga
Grave oral
defamation
12219 People vs.
Renato
Dayan
Estafa
12220 People vs.
Edgardo
Dayan
Estafa
12221 People vs.
Benito Sy
Ibaez
Estafa
12222 People vs.
Benito Sy
Ibaez
-do-
These informations, except the last four, docketed as Criminal Cases Nos. 12219 12220, 12221.
and '2222, were certified to by the respective investigating Fiscals as Follows: "that a preliminary
examination has been conducted by me in this case, having examined 'the complainant and his
witnesses; that on the basis of the sworn statements, and other evidence submitted before this
Official there is reasonable ground to believe that the crime charged has been committed and
that herein accused is probably guilty thereof " The informations in Criminal Cases Nos. 12219
and 12220 bore the certification of 3rd Assistant Fiscal Felixberto Guiritan that I am filing this
information upon directive of the Minister of Justice, who upon review of this resolution of the
undersigned investigating fiscal has found prima facie case against herein accused,
1
while the
informations in Criminal Cases Nos. 12221 and 12222 were certified to by 2nd Assistant Fiscal
Ernesto M. Brocoy in this wise: "I am filing this information upon directive of the City Fiscal
pursuant to the provisions of P.D. No. 911, who, upon review of the resolution of the
investigating fiscal now on temporary detail with the office of the Provincial Fiscal of Surigao del
Sur, has found prima facie case against the herein accused."
2

Following receipt of said informations, respondent judge issued an order setting on April 5, 1982
the hearing of said criminal cases for the purpose of determining the propriety of issuing the
corresponding warrants of arrest. After said hearing, respondent issued the questioned orders
152

dated April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the court the affidavits of
the prosecution witnesses and other documentary evidence in support of the informations to aid
him in the exercise of his power of judicial review of the findings of probable cause by
petitioners.
3

Petitioners filed two separate motions for reconsideration of said orders, contending that under
P.D. Nos. 77 and 911, they are authorized to determine the existence of a probable cause in a
preliminary examination/investigation, and that their findings as to the existence thereof
constitute sufficient basis for the issuance of warrants of arrest by the court.
4
On April 28,
1982, respondent judge denied said motions and reiterated his order to petitioners to submit the
supporting affidavits and other documents within five (5) days from notice.
5

Hence, petitioners filed this petition for certiorari and mandamus to set aside the aforesaid
orders and to compel respondent to issue the warrants of arrest in Criminal Cases Nos. 12209-
12222.
Meanwhile, the respondent, in addition to his duties as presiding judge of Branch I of the City
Court of Butuan, was also assigned to preside over Branch II of said court, as Judge Jesus Ruiz,
presiding judge of said sala, had retired from the service. The informations filed by petitioners in
Branch II likewise remained dormant because of respondent's firm refusal to issue the
corresponding warrants of arrest for want of affidavits of the witnesses. Thus, as disclosed by
petitioner's urgent motion,
6
no warrants had been issued in 113 informations as of July 15,
1982.
On July 12, 1982, respondent judge received Our May 19, 1982 Resolution requiring him to
comment on the petition. However, interpreting the same as a denial of the petition itself,
respondent issued on the following day, July 13, and Omnibus Order directing petitioners to
submit immediately the supporting affidavits and other evidence in Criminal Cases Nos. 12209-
12222. Having failed to secure a reconsideration of said Omnibus Order, petitioners finally
submitted the required affidavits and documents on July 15, 1982 in order to avoid further delay
in the prosecution of these cases.
This move on the part of the petitioners would have rendered the instant petition moot and
academic. But while respondent gave due course to some of said cases either by issuing the
warrants of arrest or taking some other appropriate action,
7
he refused to issue the warrants in
Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422, and instead ordered the records
thereof remanded to the City Fiscal "for further preliminary investigation or reinvestigation," for
on the bases of said affidavits, respondent found no prima facie case against the accused.
Petitioners therefore filed a motion with this Court to restrain respondent from enforcing the
orders subject of the main petition and to compel him to accept, and take cognizance of, all the
informations filed in his court. They contend that the fiscal's certification in the information of
the existence of probable cause constitutes sufficient justification for the judge to issue a warrant
of arrest; and that such certification binds the judge, it being supported by the presumption that
the investigating fiscal had performed his duties regularly and completely.
Upon the other hand, respondent justifies his order as an exercise of his judicial power to review
the fiscal's findings of probable cause. He further maintains that the failure of petitioners to file
the required affidavits destroys the presumption of regularity in the performance of petitioners'
official duties, particularly in the light of the long standing practice of the Office of the City Fiscal
of Butuan of attaching to the informations filed with the court the affidavits of prosecution
witnesses and other documentary evidence presented during the preliminary investigation.
153

The issue to be resolved is whether or not the respondent city judge may, for the purpose of
issuing a warrant of arrest, compel the fiscal to submit to the court the supporting affidavits and
other documentary evidence presented during the preliminary investigation.
We sustain the position of respondent judge.
The primary requirement for the issuance of a warrant of arrest is the existence of probable
cause. Section 3, Article IV of the 1973 Constitution provides that-
... no search warrant or warrant of arrest shall issue except upon probable cause
to be determined by the judge, or such other responsible officer, as may be
recognized by law, after examination under oath or affirmance of the complainant
and the witnesses he may produce ....
P.D. No. 911 authorizes the fiscal or state prosecutor to determine the existence of probable
cause. Thus,
If on the basis of complainant's sworn statements and documents submitted, the
investigating dismiss the raise. If probable cause is established by complainant's
evidence, he shall notify the respondent by issuing a subpoena .... (Sec. 1 [b], RA
5180, as amended by P.D. Nos. 77 and 911).
The fiscal or state prosecutor shall certify under oath in the information to be filed
by him that he has examined the complainant and his witnesses; that on the
basis of the sworn Statements and other evidence submitted before him there is
reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof ... (Sec. 1[d], Id.).
There is thus no dispute that the judge may rely upon the fiscal's certification of the existence of
probable cause and, on the basis thereof, issue a warrant of arrest, But does such certification
bind the judge to come out with the warrant? We answer this query in the negative. The issuance
of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on
the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule
112 of the Rules of Court:
Warrant of arrest, when issued. If the judge be satisfied from the preliminary
examination conducted by him or by the investigating officer that the offense
complained of has been committed and that there is reasonable ground to believe
that the accused has committed it, he must issue a warrant or order for his arrest.
Under this section, the judge must satisfy himself of the existence of probable cause before
issuing , a warrant or order of arrest. If on the face of the information the judge finds no probable
cause, he may disregard the fiscals certification and require the submission of the affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has
been the rule since U.S. vs. Ocampo
8
and Amarga vs. Abbas.
9
And this evidently is the reason
for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July
13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a
matter of long-standing practice had been attached to the informations filed in his sala,
respondent found the informations inadequate bases for the determination of probable cause.
For as the ensuing events would show, after petitioners had submitted the required affidavits,
respondent wasted no time in issuing the warrants of arrest in the cases where he was satisfied
that probable cause existed.
German to the issue at hand is the Rule on Summary Procedure in Special Cases
10
applicable to
the following, to wit:
154

I. B. Criminal Cases:
(1) Violation of traffic laws, rules and regulations;
(2) Violations of the rental laws;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense
charged does not exceed six (6) months imprisonment, or a fine of One Thousand
Pesos [1,000.00], or both irrespective of other imposable penalties, accessory or
otherwise, or of the civil liability arising therefrom; Provided, however, that in
offenses involving damage to property through reckless negligence, this Rule shall
govern where the imposable fine does not exceed Ten Thousand Pesos [10,000.00].
In said cases, the filing of the affidavits of witnesses with the court is mandatory. Section 9, par.
2 of said Rule prescribes that "the complaint or information must be accompanied by the
affidavits of the complainant and of his witnesses in such number of copies as there are
defendants plus two (2) copies for the court's files.
Section 10 of the Summary Rule provides:
On the basis of the complaint or information and the affidavits accompanying the same, the
court shall make a preliminary determination whether to dismiss the case outright for
being patently without basis or merit, or to require further proceedings to be taken. In the
latter case, the court may set the case for immediate arraignment of an accused under
custody, and if he pleads guilty, may render judgment forthwith. If he pleads not guilty,
and in all other cases, the court shall issue an order, accompanied by copies of all the
affidavits submitted by the complainant, directing the defendants to appear and submit his
counter-affidavit and those of his witnesses at a specified date not later than ten (10) days
from receipt thereof.
Failure on the part of the defendant to appear whenever required, shall cause the issuance
of a warrant for his arrest if the court shall find that a probable cause exists after an
examination in writing and under oath or affirmation of the complainant and his witnesses.
The obvious purpose of requiring the submission of affidavits of the complainant and of his
witnesses is to enable the court to determine whether to dismiss the case outright or to require
further proceedings.
One last point. It appears that after petitioners had submitted the required affidavits of
witnesses, the respondent judge ordered Criminal Cases Nos. 12417, 12418, 12419, 12420 and
12422 remanded to the City Fiscal for further preliminary investigation or reinvestigation. We
hold that respondent did not abuse his discretion in doing so. From the informations and
affidavits presented to him, he found the charges patently without basis or merit. For respondent
to issue the warrants of arrest and try the accused would only expose the latter to unnecessary
harrassment, anxiety and expense. And as already pointed out, under the Rule on Summary
Procedure in Special Cases, the respondent judge has the power to order the outright dismissal
of the charge if, from the information and the affidavits attached thereto, he finds the same to be
patently without basis or merit.
WHEREFORE, the petition is hereby dismissed. No costs.
SO ORDERED.
155

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.
Aquino, J., took no part.

Footnotes
1 Annexes K and L, pp. 33-34, 35-36, Rollo.
2 Annexes M and N pp. 38-40, Rollo.
3 Annexes 2, AA BB and CC pp. 69-74, Rollo.
4 Annexes DD and EE pp. 75-77, Rollo.
5 Annexes FF p. 82, Rollo.
6 Dated July 1-5, 1982, p. 103, Rollo.
7 Certification of the Clerk of Court dated August 20, 1982, p. 136, Rollo.
8 Phil. 1.
9 98 Phil. 739.
10 This Summary Rule took effect on August 1, 1983.











156

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.
MANZANAS,petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS
C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court,
at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE
MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos.
82827 and 83979.
R E S O L U T I O N

PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or not petitioners
were denied due process when informations for libel were filed against them although the finding
of the existence of a prima facie case was still under review by the Secretary of Justice and,
subsequently, by the President; (2) whether or not the constitutional rights of Beltran were
violated when respondent RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may initiate criminal
proceedings against the petitioners through the filing of a complaint-affidavit.
157

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of
the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against
petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the
Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With these
developments, petitioners' contention that they have been denied the administrative remedies
available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due
process of law in the preliminary investigation is negated by the fact that instead of submitting
his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his
right to refute the complaint by filing counter-affidavits. Due process of law does not require that
the respondent in a criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion
as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated
and clarified in this resolution.
158

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus,
with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion
amounting to lack or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may
subsequently have to be a witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity
from suit, as by testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that, aside from requiring all of the
office holder's time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may
be invoked only by the holder of the office; not by any other person in the President's behalf.
Thus, an accused in a criminal case in which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the privilege and
submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is
solely the President's prerogative. It is a decision that cannot be assumed and imposed by any
other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because
of the privileged character or the publication, the Court reiterates that it is not a trier of facts and
that such a defense is best left to the trial court to appreciate after receiving the evidence of the
parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling
effect" on press freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely
abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and
prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on
the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos.
82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of
the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is
LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.



159

Separate Opinions

GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues mentioned in
its opening statement. However, as to the more important issue on whether or not the
prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve
my vote. I believe this is the more important issue in these petitions and it should be resolved
now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should
not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial
justice where it is not alone the criminal liability of an accused in a seemingly minor libel case
which is involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which
tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a
simple prosecution for libel. We have as complainant a powerful and popular President who
heads the investigation and prosecution service and appoints members of appellate courts but
who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of
the invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a
clear conscience." The Court pointed out that while defamation is not authorized, criticism is to
be expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:



160

xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the
eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman,
and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again, the
Supreme Court should draw this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to
continue, where after discounting the possibility that the words may not be really that libelous,
there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column,
the editors tell their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must
call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct
328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for
the repression of expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American
government. They recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsel is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by lawthe argument of
force in its worst form. ...
161

Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at
pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas
knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of
these petitions, should not a differentiated approach to their particular liabilities be taken
instead of lumping up everybody with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to
publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel
is not protected by the free speech clause but we have to understand that some provocative
words, which if taken literally may appear to shame or disparage a public figure, may really be
intended to provoke debate on public issues when uttered or written by a media personality. Will
not a criminal prosecution in the type of case now before us dampen the vigor and limit the
variety of public debate? There are many other questions arising from this unusual case which
have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The
first issue on prematurity is moot. The second issue discusses a procedure now embodied in the
recently amended Rules of Court on how a Judge should proceed before he issues a warrant of
arrest. Anent the third issue, considerations of public policy dictate that an incumbent President
should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception.
I know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But
why should we subject them to this problem? And why should we allow the possibility of the trial
court treating and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving government power
and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on any subject, it is
that criminal libel laws are consistent with the concept of ordered liberty only
when applied with safeguards evolved to prevent their invasion of freedom of
expression.
In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues mentioned in
its opening statement. However, as to the more important issue on whether or not the
prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve
162

my vote. I believe this is the more important issue in these petitions and it should be resolved
now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should
not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial
justice where it is not alone the criminal liability of an accused in a seemingly minor libel case
which is involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which
tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a
simple prosecution for libel. We have as complainant a powerful and popular President who
heads the investigation and prosecution service and appoints members of appellate courts but
who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of
the invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a
clear conscience." The Court pointed out that while defamation is not authorized, criticism is to
be expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the
eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman,
and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again, the
Supreme Court should draw this fine line instead of leaving it to lower tribunals.
163

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to
continue, where after discounting the possibility that the words may not be really that libelous,
there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column,
the editors tell their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must
call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).<re||an1w>
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct
328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for
the repression of expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American
government. They recognized the risk to which all human institutions are subject.
But they knew that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsel is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by lawthe argument of
force in its worst form. ...
Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at
pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas
knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of
these petitions, should not a differentiated approach to their particular liabilities be taken
instead of lumping up everybody with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to
publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel
is not protected by the free speech clause but we have to understand that some provocative
164

words, which if taken literally may appear to shame or disparage a public figure, may really be
intended to provoke debate on public issues when uttered or written by a media personality. Will
not a criminal prosecution in the type of case now before us dampen the vigor and limit the
variety of public debate? There are many other questions arising from this unusual case which
have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The
first issue on prematurity is moot. The second issue discusses a procedure now embodied in the
recently amended Rules of Court on how a Judge should proceed before he issues a warrant of
arrest. Anent the third issue, considerations of public policy dictate that an incumbent President
should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception.
I know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But
why should we subject them to this problem? And why should we allow the possibility of the trial
court treating and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving government power
and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on any subject, it is
that criminal libel laws are consistent with the concept of ordered liberty only
when applied with safeguards evolved to prevent their invasion of freedom of
expression.
In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.









165

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81510 March 14, 1990
HORTENCIA SALAZAR, petitioner,
vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and
seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.
The facts are as follows:
xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City,
in a sworn statement filed with the Philippine Overseas Employment
Administration (POEA for brevity) charged petitioner Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at ikaw ngayon ay narito
at
nagbibigay ng salaysay.
S: Upang ireklamo sa dahilan ang aking PECC Card ay
ayaw ibigay sa akin ng dati kong manager. Horty
Salazar 615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap and ginawang
panloloko sa
iyo ng tao/mga taong inireklamo mo?
S. Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S. Pagkagaling ko sa Japan ipinatawag niya ako.
Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng
ibang
company pero ayaw niyang ibigay and PECC Card
ko.
166

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom
said complaint was assigned, sent to the petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE
MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU.
FAIL NOT UNDER PENALTY OF LAW.
4. On the same day, having ascertained that the petitioner had no license to
operate a recruitment agency, public respondent Administrator Tomas D.
Achacoso issued his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which
reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment
agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila
and the seizure of the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having verified that you
have
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution
under existing laws.
Done in the City of Manila, this 3th day of November, 1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita
B. Espiritu issued an office order designating respondents Atty. Marquez, Atty.
Jovencio Abara and Atty. Ernesto Vistro as members of a team tasked to
implement Closure and Seizure Order No. 1205. Doing so, the group assisted by
Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and
Ernie Baluyot of News Today proceeded to the residence of the petitioner at 615
R.O. Santos St., Mandaluyong, Metro Manila. There it was found that petitioner
was operating Hannalie Dance Studio. Before entering the place, the team served
said Closure and Seizure order on a certain Mrs. Flora Salazar who voluntarily
allowed them entry into the premises. Mrs. Flora Salazar informed the team that
Hannalie Dance Studio was accredited with Moreman Development (Phil.).
However, when required to show credentials, she was unable to produce any.
Inside the studio, the team chanced upon twelve talent performers practicing a
dance number and saw about twenty more waiting outside, The team confiscated
assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan and
witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following letter:
167

Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila,
we respectfully request that the personal properties seized at her residence last
January 26, 1988 be immediately returned on the ground that said seizure was
contrary to law and against the will of the owner thereof. Among our reasons are
the following:
1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of
the Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine
Constitution which guarantees 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."
3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her
consent and were done with unreasonable force and intimidation,
together with grave abuse of the color of authority, and constitute
robbery and violation of domicile under Arts. 293 and 128 of the
Revised Penal Code.
Unless said personal properties worth around TEN THOUSAND
PESOS (P10,000.00) in all (and which were already due for
shipment to Japan) are returned within twenty-four (24) hours from
your receipt hereof, we shall feel free to take all legal action, civil
and criminal, to protect our client's interests.
We trust that you will give due attention to these important
matters.
7. On February 2, 1988, before POEA could answer the letter, petitioner filed the
instant petition; on even date, POEA filed a criminal complaint against her with
the Pasig Provincial Fiscal, docketed as IS-88-836.
1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as
one for certiorari in view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest)
under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the
Court's resolution.
Under the new Constitution, which states:
. . . 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
168

particularly describing the place to be searched and the persons or things to be
seized.
2

it is only a judge who may issue warrants of search and arrest.
3
In one case, it was declared that
mayors may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "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 person or things to be seized." The constitutional proscription has thereby
been manifested that thenceforth, the function of determining probable cause and
issuing, on the basis thereof, warrants of arrest or search warrants, may be validly
exercised only by judges, this being evidenced by the elimination in the present
Constitution of the phrase, "such other responsible officer as may be authorized
by law" found in the counterpart provision of said 1973 Constitution, who, aside
from judges, might conduct preliminary investigations and issue warrants of
arrest or search warrants.
4

Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to
be a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally
interested in the success of his case. Although his office "is to see that justice is
done and not necessarily to secure the conviction of the person accused," he
stands, invariably, as the accused's adversary and his accuser. To permit him to
issue search warrants and indeed, warrants of arrest, is to make him both judge
and jury in his own right, when he is neither. That makes, to our mind and to that
extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002,
unconstitutional.
5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory
powers:
(c) The Minister of Labor or his duly authorized representative shall have the
power to recommend the arrest and detention of any person engaged in illegal
recruitment.
6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed
purpose of giving more teeth to the campaign against illegal recruitment. The Decree gave the
Minister of Labor arrest and closure powers:
169

(b) The Minister of Labor and Employment shall have the power to cause the
arrest and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national
security and public order or will lead to further exploitation of job-seekers. The
Minister shall order the closure of companies, establishment and entities found to
be engaged in the recruitment of workers for overseas employment, without having
been licensed or authorized to do so.
7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the
Labor Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or
non-holder of authority if after investigation it is determined that his activities
constitute a danger to national security and public order or will lead to further
exploitation of job-seekers. The Minister shall order the search of the office or
premises and seizure of documents, paraphernalia, properties and other
implements used in illegal recruitment activities and the closure of companies,
establishment and entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized to do so.
8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its
twilight moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare
Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo
9
is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by
Section 37 of the Immigration Law. We have ruled that in deportation cases, an arrest (of an
undesirable alien) ordered by the President or his duly authorized representatives, in order to
carry out a final decision of deportation is valid.
10
It is valid, however, because of the recognized
supremacy of the Executive in matters involving foreign affairs. We have held:
11

xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that
when the Chief Executive finds that there are aliens whose continued presence in
the country is injurious to the public interest, "he may, even in the absence of
express law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534,
568, 569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their continued presence
is detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go
Tam vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949,
956).
12

170

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional.
It (the power to order arrests) cannot be made to extend to other cases, like the one at bar. Under
the Constitution, it is the sole domain of the courts.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was
validly issued, is clearly in the nature of a general warrant:
Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment
agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila
and the seizure of the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having verified that you
have
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing
laws.
13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general warrants.
The search warrants describe the articles sought to be seized in this wise:
1) All printing equipment, paraphernalia, paper, ink, photo
equipment, typewriters, cabinets, tables, communications/
recording equipment, tape recorders, dictaphone and the like used
and/or connected in the printing of the "WE FORUM" newspaper
and any and all documents/communications, letters and facsimile
of prints related to the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other
publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of the "WE
FORUM" and other subversive materials and propaganda, more
particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
171

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."
In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures,
recordings and other written instruments concerning the Communist Parties of
Texas, and the operations of the Community Party in Texas," was declared void by
the U.S. Supreme Court for being too general. In like manner, directions to "seize
any evidence in connection with the violation of SDC 13-3703 or otherwise" have
been held too general, and that portion of a search warrant which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the
Connecticut General Statutes (the statute dealing with the crime of conspiracy)"
was held to be a general warrant, and therefore invalid. The description of the
articles sought to be seized under the search warrants in question cannot be
characterized differently.
In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the
English Press, when "Officers of the Crown were given roving commissions to
search where they pleased in order to suppress and destroy the literature of
dissent both Catholic and Puritan." Reference herein to such historical episode
would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses
no clear and imminent danger to state security.
14

For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no
other, who may issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal and undesirable aliens, whom
the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205.
No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes
1 Rollo, 19-24; emphases in the original.
2 CONST., art. III, sec. 2.
172

3 See Ponsica v. Ignalaga, No. 72301, July 31, 1987, 152 SCRA 647; Presidential
Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16,
1989.
4 Ponsica, supra, 662-663.
5 Presidential Anti-Dollar Salting Task Force, supra, 21.
6 Pres. Decree No. 1693, "FURTHER AMENDING ARTICLE 38 OF THE LABOR
CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC
SABOTAGE."
7 Supra, sec. 1.
8 Pres. Decree No. 2018, "FURTHER AMENDING ARTICLES 38 AND 39 OF THE
LABOR CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC
SABOTAGE AND PUNISHABLE WITH IMPRISONMENT."
9 No. L-22196, June 30, 1967, 20 SCRA 562.
10 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9
SCRA 27; Vivo v. Montesa, No. L-24576, 24 SCRA 155.
11 Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.
12 Supra, 21-22.
13 Rollo, id., 15.
14 Burgos, Sr. v. Chief of Staff, AFP No. 64261, December 26, 1984, 133 SCRA
800, 814-816.










173

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22196 June 30, 1967
ESTEBAN MORANO, CHAN SAU WAH and FU YAN FUN, petitioners-appellants,
vs.
HON. MARTINIANO VIVO in his capacity as Acting Commissioner of
Immigration, respondent-appellant.
Engracio Fabre Law Office for petitioners-appellants.
Office of the Solicitor General Arturo A. Alafriz and Solicitor A. M. Amores for respondent-appellant.
SANCHEZ, J.:
Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932, arrived in the
Philippines on November 23, 1961 to visit her cousin, Samuel Lee Malaps. She left in mainland
China two of her children by a first marriage: Fu Tse Haw and Fu Yan Kai With her was Fu Yan
Fun, her minor son also by the first marriage, born in Hongkong on September 11, 1957.
Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the Philippines under a
temporary visitor's visa for two (2) months and after they posted a cash bond of P4,000.00.
On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born Filipino citizen.
Born to this union on September 16, 1962 was Esteban Morano, Jr.
To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun obtained several
extensions. The last extension expired on September 10, 1962.1wph1.t
In a letter dated August 31, 1962, the Commissioner of Immigration ordered Chan Sau Wah and
her son, Fu Yan Fun, to leave the country on or before September 10, 1962 with a warning that
upon failure so to do, he will issue a warrant for their arrest and will cause the confiscation of
their bond.
Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with her husband
Esteban Morano) and Fu Yan Fun petitioned the Court of First Instance of Manila
for mandamus to compel the Commissioner of Immigration to cancel petitioners' Alien
Certificates of Registration; prohibition to stop the Commissioner from issuing a warrant for their
arrest, and preliminary injunction to restrain the Commissioner from confiscating their cash
bond and from issuing warrants of arrest pending resolution of this case.
1
The trial court, on
November 3, 1962, issued the writ of preliminary injunction prayed for, upon a P2,000-bond.
After trial and the stipulations of facts filed by the parties, the Court of First Instance rendered
judgment, viz:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows:
(a) Granting this petition for Mandamus and Prohibition with respect to petitioner CHAN
SAU WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to
cancel her Alien Certificate of Registration and other immigration papers, upon the
payment of proper dues; and declaring the preliminary injunction with respect to her
174

permanent, prohibiting the respondent, his representatives or subordinates from
arresting and/or deporting said petitioner;
(b) Dismissing this petition with respect to petitioner FU YAN FUN, and dissolving the writ
of preliminary injunction issued herein, restraining the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;
(c) Authorizing respondent Commissioner to forfeit the bond filed by herein petitioners
CHAN SAU WAH and FU YAN FUN in the amount of P4,000.00; and
(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the Philippine
Immigration Act of 1940 unconstitutional;
Without pronouncement, as to costs.
Petitioners and respondent Commissioner both appealed.
We will deal with the claims of both appellants in their proper sequence.
1. The Solicitor General's brief assails the trial court's declaration that Chan Sau Wah is a citizen
of the Philippines. The court a quo took the position that "Chan Sau Wah became, by virtue of,
and upon, her marriage to Esteban Morano, a natural-born Filipino, a Filipino citizen.
2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473 [Revised Naturalization
Act], which reads:
Sec. 15. Effect of the naturalization on wife children. Any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.
To apply this provision, two requisites must concur: (a) valid marriage of an alien woman to a
citizen of the Philippines and (b) the alien woman herself might be lawfully naturalized.
We may concede that the first requisite has been properly met. The validity of the marriage is
presumed.
But can the same be said of the second requisite? This question by all means is not new. In a
series of cases, this Court has declared that the marriage of an alien woman to a Filipino citizen
does not ipso facto make her a Filipino citizen. She must satisfactorily show that she has all the
qualifications and none of the disqualifications required by the Naturalization Law.
3
Ly Giok Ha
alias Wy Giok Ha et al. vs. Emilio Galang, L-21332, March 18, 1966,
*
clearly writes down the
philosophy behind the rule in the following expressive language, viz:
Reflection will reveal why this must be so. The qualifications prescribed under section 2
of the Naturalization Act, and the disqualifications enumerated in its section 4, are not
mutually exclusive; and if all that were to be required is that the wife of a Filipino be not
disqualified under section 4, the result might well be that citizenship would be conferred
upon persons in violation of the policy of the statute. For example, section 4 disqualifies
only
"(c) Polygamists or believers in the practice of polygamy; and
(b) Persons convicted of crimes involving moral turpitude,"
175

so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously
convicted by a competent court, would not be thereby disqualified; still it is certain that
the law did not intend such a person to, be admitted as a citizen in view of the
requirement of section 2 that an applicant for citizenship "must be of good moral
character."
Similarly, the citizen's wife might be a convinced believer in racial supremacy, in
government by certain selected classes, in the right to vote exclusively by certain
"herrenvolk," and thus disbelieve in the principles underlying the Philippine Constitution;
yet she would not be disqualified under section 4, as long as she is not "opposed to
organized government," nor affiliated to groups "upholding or teaching doctrines opposing
all organized governments," nor "defending or teaching the necessity or propriety of
violence, personal assault or assassination for the success or predominance of their
ideas." Et sic de caeteris.
Upon the principle of selective citizenship, we cannot afford to depart from the wise precept
affirmed and reaffirmed in the cases heretofore noted.
In the additional stipulation of facts of July 3, 1963, petitioners admit that Chan Sau Wah is not
possessed of all the qualifications required by the Naturalization Law.
Because of all these we are left under no doubt that petitioner Chan Sau Wah did not become a
Filipino citizen.
2. Squarely put in issue by petitioners is the constitutionality of Section 37 (a) of the Immigration
Act of 1940, which reads:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner
of Immigration or of any other officer designated by him for the purpose and deported
upon the warrant of the Commissioner of Immigration after a determination by the Board
of Commissioners of the existence of the ground for deportation as charged against the
alien:
x x x x x x x x x
(7) Any alien who remains in the Philippines in violation of any limitation or condition
under which he was admitted as a nonimmigrant.
Petitioners argue that the legal precept just quoted trenches upon the constitutional mandate in
Section 1 (3), Article III [Bill of Rights] of the Constitution, to wit:
(3) The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated, and no warrants shall
issue but upon probable cause, to be determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized.
They say that the Constitution limits to judges the authority to issue warrants of arrest and that
the legislative delegation of such power to the Commissioner of Immigration is thus violative of
the Bill of Rights.
Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in
the execution of a final order of deportation issued in accordance with law. The constitutional
limitation contemplates an order of arrest in the exercise of judicial power
4
as a step preliminary
176

or incidental to prosecution or proceedings for a given offense or administrative action, not as a
measure indispensable to carry out a valid decision by a competent official, such as a legal order
of deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation.
The following from American Jurisprudence,
5
is illuminating:
It is thoroughly established that Congress has power to order the deportation of aliens
whose presence in the country it deems hurtful. Owing to the nature of the proceeding,
the deportation of an alien who is found in this country in violation of law is not a
deprivation of liberty without due process of law. This is so, although the inquiry devolves
upon executive officers, and their findings of fact, after a fair though summary hearing,
are made conclusive.
x x x x x x x x x
The determination of the propriety of deportation is not a prosecution for, or a conviction
of, crime; nor is the deportation a punishment, even though the facts underlying the
decision may constitute a crime under local law. The proceeding is in effect simply a
refusal by the government to harbor persons whom it does not want. The coincidence of
local penal law with the policy of Congress is purely accidental, and, though supported by
the same facts, a criminal prosecution and a proceeding for deportation are separate and
independent.
In consequence, the constitutional guarantee set forth in Section 1 (3), Article III of the
Constitution aforesaid, requiring that the issue of probable cause be determined by a judge, does
not extend to deportation proceedings.
6

The view we here express finds support in the discussions during the constitutional convention.
The convention recognized, as sanctioned by due process, possibilities and cases of deprivation
of liberty, other than by order of a competent court.
7

Indeed, the power to deport or expel aliens is an attribute of sovereignty. Such power is planted
on the "accepted maxim of international law, that every sovereign nation has the power, as
inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners
within its dominions."
8
So it is, that this Court once aptly remarked that there can be no
controversy on the fact that where aliens are admitted as temporary visitors, "the law is to the
effect that temporary visitors who do not depart upon the expiration of the period of stay granted
them are subject to deportation by the Commissioner of Immigration, for having violated the
limitation or condition under which they were admitted as non-immigrants (Immigration Law,
Sec. 37 (a), subsection (7); C.A. 613, as amended)."
9

And, in a case directly in point, where the power of the Commissioner to issue warrants of
arrest was challengedas unconstitutional, because "such power is only vested in a judge by
Section 1, paragraph 3, Article III of our Constitution," this Court declared
This argument overlooks the fact that the stay of appellant Ng Hua To as temporary
visitor is subject to certain contractual stipulations as contained in the cash bond put up
by him, among them, that in case of breach the Commissioner may require the
recommitment of the person in whose favor the bond has been filed. The Commissioner
did nothing but to enforce such condition. Such a step is necessary to enable the
Commissioner to prepare the ground for his deportation under section 37 (a) of
Commonwealth Act 613. A contrary interpretation would render such power nugatory to
the detriment of the State.
10

177

It is in this context that we rule that Section 37 (a) of the Immigration Act of 1940 is not
constitutionally proscribed.
3. A sequel to the questions just discussed is the second error set forth in the government's brief.
The Solicitor General balks at the lower court's ruling that petitioner Chan Sau Wah is entitled to
permanent residence in the Philippines without first complying with the requirements of Sections
9 and 13 of the Immigration Act of 1940, as amended by Republic Act 503.
We first go to the law, viz:
SEC. 9 [last paragraph]
An alien who is admitted as a nonimmigrant cannot remain in the Philippines
permanently. To obtain permanent admission, a nonimmigrant alien must depart
voluntarily to some foreign country and procure from the appropriate Philippine consul
the proper visa and thereafter undergo examination by the officers of the Bureau of
Immigration at a Philippine port of entry for determination of his admissibility in
accordance with the requirements of this Act.
SEC. 13. Under the conditions set forth in this Act there may be admitted into the
Philippines immigrants, termed "quota immigrants" not in excess of fifty (50) of any one
nationality or without nationality for any one calendar year, except that the following
immigrants, termed "nonquota immigrants," maybe admitted without regard to such
numerical limitations.
The corresponding Philippine Consular representative abroad shall investigate and certify
the eligibility of a quota immigrant previous to his admission into the Philippines.
Qualified and desirable aliens who are in the Philippines under temporary stay may be
admitted within the quota, subject to the provisions of the last paragraph of section 9 of
this Act.
(a) The wife or the husband or the unmarried child under twenty-one years of age of a
Philippine citizen, if accompanying or following to join such citizen;
(b) A child of alien parents born during the temporary visit abroad of the mother, the
mother having been previously lawfully admitted into the Philippine for permanent
residence, if the child is accompanying or coming to join a parent and applies for
admission within five years from the date of its birth;
Concededly, Chan Sau Wah entered the Philippines on a tourist-temporary visitor's visa. She is a
non-immigrant. Under Section 13 just quoted, she may therefore be admitted if she were a
qualified and desirable alien and subject to the provisions of the last paragraph of Section 9.
Therefore, first, she must depart voluntarily to some foreign country; second, she must procure
from the appropriate consul the proper visa; and third, she must thereafter undergo examination
by the officials of the Bureau of Immigration at the port of entry for determination of her
admissibility in accordance with the requirements of the immigration Act.
This Court in a number of cases has ruled, and consistently too, that an alien admitted as a
temporary visitor cannot change his or her status without first departing from the country and
complying with the requirements of Section 9 of the Immigration Act.
11

The gravamen of petitioners' argument is that Chan Sau Wah has, since her entry, married in
Manila a native-born Filipino, Esteban Morano. It will not particularly help analysis for
petitioners to appeal to family solidarity in an effort to thwart her deportation. Chan Sau Wah,
178

seemingly is not one who has a high regard for such solidarity. Proof: She left two of her children
by the first marriage, both minors, in the care of neighbors in Fukien, China.
Then, the wording of the statute heretofore adverted to is a forbidding obstacle which will prevent
this Court from writing into the law an additional provision that marriage of a temporary alien
visitor to a Filipino would ipso factomake her a permanent resident in his country. This is a field
closed to judicial action. No breadth of discretion is allowed us. We cannot insulate her from the
State's power of deportation.
Really, it would be an easy matter for an alien woman to enter the Philippines as a temporary
visitor, go through a mock marriage, but actually live with another man as husband and wife,
and thereby skirt the provisions of our immigration law. Also, a woman of undesirable character
may enter this country, ply a pernicious trade, marry a Filipino, and again throw overboard
Sections 9 and 13 of the Act. Such a flanking movement, we are confident, is impermissible.
Recently we confirmed the rule that an alien wife of a Filipino may not stay permanently without
first departing from the Philippines. Reason: Discourage entry under false pretenses.
12

The ruling of the trial court on this score should be reversed.
4. It is petitioners' turn to point as error the dismissal of the petition for mandamus and
prohibition with respect to petitioner Fu Yan Fun.
Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his mother. They cite
Section 15, paragraph 3, Commonwealth Act 473, which says that:
A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization
of the parent, shall automatically become a Philippine citizen. . . .
Petitioners' position is based on the assumption that Chan Sau Wah, the mother, is a Filipino
citizen. We have held that she is not. At best, Fu Yan Fun is a step-son of Esteban Morano,
husband of Chan Sau Wah. A step-son is not a foreign-born child of the step-father.
The word child, we are certain, means legitimate child, not a step-child. We are not wanting in
precedents. Thus, when the Constitution provides that "[t]hose whose fathers are citizens of the
Philippines" are citizens thereof,
13
the fundamental charter intends "those" to apply to legitimate
children.
14
In another case, the term "minor children" or "minor child" in Section 15 of the
Revised Naturalization Law refers only to legitimate children of Filipino citizens. This Court, thru
Mr. Chief Justice Roberto Concepcion, there said:
15

It is claimed that the phrases "minor children" and "minor child," used in these
provisions, include adopted children. The argument is predicated upon the theory that an
adopted child is, for all intents and purposes, a legitimate child. Whenever, the word
"children" or "child" is used in statutes, it is generally understood, however, to refer to
legitimate children, unless the context of the law and its spirit indicate clearly the
contrary. Thus, for instance, when the Constitution provides that "those whose fathers
are citizens of the Philippines," and "those whose mothers are citizens of the Philippines"
who shall elect Philippine citizenship upon reaching the age of majority, are citizens of the
Philippines (Article IV, Section 1, subdivisions [3] and [4]), our fundamental law clearly
refers to legitimate children (Chiongbian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v.
Republic, L-4223, May 12, 1952).
At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The status of a
temporary visitor cannot be converted into, that of a permanent resident, as we have heretofore
held, without first complying with Section 9 of the Immigration Law.
179

5. Petitioners finally aver that the lower court erred in authorizing respondent Commissioner to
forfeit the bond filed by petitioners Chan Sau Wah and Fu Yan Fun in the amount of P4,000.00.
Here is petitioners' posture. They enjoyed their stay in the Philippines upon a bond. Now they
come to court and say that as the prescribed form of this bond was not expressly approved by
the Secretary of Justice in accordance with Section 3 of Commonwealth Act 613, which reads
SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to the approval of the
Department Head, such rules and regulations and prescribes such forms of bond,
reports, and other papers, and shall issue from time to time such instruction, not
inconsistent with law, as he shall deem best calculated to carry out the provisions of the
immigration laws. . . .
that bond is void.
Reasons there are which prevent us from giving our imprimatur to this argument.
The provision requiring official approval of a bond is merely directory. "Irregularity or entire
failure in this respect does not affect the validity of the bond.
16
The reason for the rule, is found
in 9 C.J., p. 26 (footnote), which reads:
(a) Reason for rule. "Statutes requiring bonds to be approved by certain officials are not for the
purpose of protecting the obligors in the bond, but are aimed to protect the public, to insure their
solvency, and to create evidence of an unimpeachable character of the fact of their execution.
When they are executed for a legal purpose, before a proper tribunal, and are in fact accepted
and approved by the officer or body, whose duty it was to approve them, it could serve no useful
purpose of the law to hold them invalid, to release all the obligors thereon, and to defeat every
purpose of its execution, simply because the fact of approval was not indorsed precisely as had
been directed by the Legislature." American Book Co. vs. Wells, 83 SW 622, 627, 26 Ky L-1159.
(emphasis supplied)
And another. This bond was accepted by the government. It had been there. The form of the
bond here used is of long continued usage. If the government did not question the form of the
bond at all, then we must assume that it counted with the Secretary's approval. For the
presumption is that official duty has been legally performed.
Surely enough, equitable considerations will stop petitioners from pleading invalidity of the bond.
They offered that bond to enable them to enter and stay in this country. They enjoyed benefits
therefrom. They cannot, "in law, and good conscience, be allowed to reap the fruits" of that bond,
and then jettison the same. They are "precluded from attacking the validity" of such bond.
17

Actually, to petitioners the bond was good while they sought entry into the Philippines; they
offered it as security for the undertaking; that they "will actually depart from the Philippines"
when their term of stay expires. Now that the bond is being confiscated because they overstayed,
they make an about-face and say that such bond is null and void. They shall not profit from this
inconsistent position. Their bond should be confiscated.
Conformably to the foregoing, the judgment under review is hereby modified as follows:
(1) The portion thereof which reads:
(a) Granting their petition for Mandamus and Prohibition with respect to petitioner CHAN
SAU WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to
cancel her Alien Certificate of Registration and other immigration papers, upon the
180

payment of proper dues; and declaring preliminary injunction with respect to her
permanent, prohibiting the respondent, his representatives or subordinates from
arresting and/or deporting said petitioner;
is hereby reversed: and, in consequence
The petition for mandamus and prohibition with respect to petitioner Chan Sau Wah is hereby
denied; and the judgment declaring her a citizen of the Philippines, directing respondent to
cancel her Alien Certificate of Registration and other immigration papers, and declaring the
preliminary injunction with respect to her permanent, are all hereby set aside; and
(2) In all other respects, the decision appealed from is hereby affirmed.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon J.P., Zaldivar and Castro, J.J., concur.
Separate Opinions
DIZON, J., concurring:
I concur (in the result) with the majority opinion penned by Mr. Justice Conrado Sanchez, for the
reason that, as stated therein, "In the additional stipulation of facts of July 3, 1963,
petitioners admit that Chan Sau Wah is not possessed of all the qualifications required by the
Naturalization Law."
Footnotes
1
Civil Case No. 51538 of the Court of First Instance of Manila, entitled "Esteban Morano,
Chan Sau Wah and Fu Yan Fun, petitioners, vs. Hon. Martiniano Vivo, in his capacity as
Acting Commissioner of Immigration, respondent."
2
Record below, pp. 181-182.
3
Lo San Tuang vs. Galang, L-18775, November 30, 1963; Sun Peck Young vs.
Commissioner of Immigration, L-20784, December 27, 1963; Tong Sick Sy vs. Vivo, L-
21136, December 27, 1963; Lao Chay vs. Galang, L-19977, October 30, 1964; Choy King
Tee vs. Galang, L-18351, March 26, 1965; Austria vs. Conchu, L-20716, June 22, 1965;
Brito vs. Commissioner of Immigration, L-16829, June 30, 1965; Santos Chan vs.
Galang, L-21732, October 17, 1966.
*
Reported in 16 Supreme Court Reports Annotated 414.
4
Tu Chuan Hai vs. Commissioner of Immigration, 55 O.G. No. 28, pp. 5272, 5274-5275.
5
2 Am. Jur., p. 517.
6
Tu Chuan Hai vs. Commissioner of Immigration, supra; Abel vs. United States, supra, at
pp. 681-683.
7
Laurel's Records of the Proceedings of the Constitutional Convention, Vol. VIII, pp. 86-
89. Justice Laurel here makes mention of arrests in a "contempt proceeding of the
Legislature."
181

8
Nishimura Ekiu vs. U.S., 142 U.S. 651, 35 L. ed. 1146, 1149.
9
Ong See Lun and Go Uan vs. Board of Immigration and Jose P. Bengzon, etc., 95 Phil.
785, 788.
10
Ng Hua To vs. Galang, L-16140, February 29, 1964.
NOTE:Petitioners' bond herein contains the following stipulation: "(a) That the
undersigned, with full knowledge that SEE ABOVE are tourist-temporary
visitors whose authorized stay in this country is limited only up to and including
FIFTY-NINE (59) DAYS 19 , hereby undertake that said SEE ABOVE will
actually depart from the Philippines on or before said date so specified, or within
such period as, in his discretion, the Commissioner of Immigration or his
authorized representative may properly allow."
11
Ong Se Lun vs. Board of Immigration Commissioners, supra; Chiong Tiao Bing vs.
Commissioner of Immigration, 99 Phil. 1020, 1022; Sy Hong vs. Commissioner of
Immigration, 101 Phil. 1207, 1208; Ang It vs. Commissioner of Immigration, 102 Phil.
532, 535-537; Ng Hin vs. Commissioner of Immigration, L-13026, March 30, 1960; Kua
Suy vs. Commissioner of Immigration, L-13790, October 31, 1963; Lim Chick vs. Vivo, L-
20513, December 26, 1963; See Guan vs. Commissioner of Immigration, L-21811,
November 29, 1965.
12
Co Pek vs. Vivo, L-21775, December 17, 1966.
13
Article IV, Section 1, subdivision 3, Philippine Constitution.
14
Chiongbian vs. de Leon, 82 Phil. 771, 774.
15
Ching Leng vs. Galang, L-11432, October 27, 1958.
16
9 C. J., p. 25.
"The failure of a court or officer to approve or file an official bond will not affect its
validity for the reason that the government or other official body is not responsible
for the laches of its officers." 8 Am. Jur., p. 717.
17
De Borja Vda. de Torres vs. Encarnacion, 89 Phil. 678, 681.







182

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82544 June 28, 1988
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN
SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.

MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch
citizen also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of
Mission Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID.
Petitioners are presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended
after three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after
apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens
opted for self-deportation and have left the country. One was released for lack of evidence;
another was charged not for being a pedophile but for working without a valid working visa.
Thus, of the original twenty two (22), only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected
child prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There
were also posters and other literature advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988
stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
183

There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners for being
undesirable aliens under Section 69 of the Revised Administrative Code (Deportation Case No.
88-13). The "Charge Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable
aliens, in that: they, being pedophiles, are inimical to public morals, public health
and public safety as provided in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation
of Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative
Code On the same date, the Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their
health was being seriously affected by their continuous detention. Upon recommendation of the
Board of Commissioners for their provisional release, respondent ordered the CID doctor to
examine petitioners, who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied
considering the certification by the CID physician that petitioners were healthy. To avoid
congestion, respondent ordered petitioners' transfer to the CID detention cell at Fort Bonifacio,
but the transfer was deferred pending trial due to the difficulty of transporting them to and from
the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had
"finally agreed to a self-deportation" and praying that he be "provisionally released for at least 15
days and placed under the custody of Atty. Asinas before he voluntarily departs the country." On
7 April 1988, the Board of Special Inquiry III allowed provisional release of five (5) days only
under certain conditions. However, it appears that on the same date that the aforesaid
Manifestation/ Motion was filed, Harvey and his co-petitioners had already filed the present
petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas
Corpus. A Return of the Writ was filed by the Solicitor General and the Court heard the case on
oral argument on 20 April 1988. A Traverse to the Writ was presented by petitioners to which a
Reply was filed by the Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the
Revised Administrative Code, which legally clothes the Commissioner with any authority to
arrest and detain petitioners pending determination of the existence of a probable cause leading
to an administrative investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable
searches and seizures since the CID agents were not clothed with valid Warrants of arrest,
search and seizure as required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected
pedophiles, are not valid legal grounds for their arrest and detention unless they are caught in
the act. They further allege that being a pedophile is not punishable by any Philippine Law nor is
it a crime to be a pedophile.
184

We reject petitioners' contentions and uphold respondent's official acts ably defended by the
Solicitor General.
There can be no question that the right against unreasonable searches and seizures guaranteed
by Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens,
whether accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the
constitutional requirements of a valid search warrant or warrant of arrest is that it must be
based upon probable cause. Probable cause has been defined as referring to "such facts and
circumstances antecedent to the issuance of the warrant that in themselves are sufficient to
induce a cautious man to rely on them and act in pursuance thereof." (People vs. Syjuco 64 Phil.
667 [1937]; Alverez vs. CFI, 64 Phil. 33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected
by a peace officer or even a private person (1) when such person has committed, actually
committing, or is attempting to commit an offense in his presence; and (2) when an offense has,
in fact, been committed and he has personal knowledge of facts indicating that the person to be
arrested has committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close
surveillance for three (3) months during which period their activities were monitored. The
existence of probable cause justified the arrest and the seizure of the photo negatives,
photographs and posters without warrant (See Papa vs. Mago, L-27360, February 28, 1968,22
SCRA 857; People vs. Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA
86, cited in CRUZ, Constitutional Law, 1987 ed., p. 143). Those articles were seized as an
incident to a lawful arrest and, are therefore, admissible in evidence (Section 12, Rule 126,1985
Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the
records show that formal deportation charges have been filed against them, as undesirable
aliens, on 4 March 1988. Warrants of arrest were issued against them on 7 March 1988 "for
violation of Section 37, 45 and 46 of the Immigration Act and Section 69 of the Administrative
Code." A hearing is presently being conducted by a Board of Special Inquiry. The restraint
against their persons, therefore, has become legal. The Writ has served its purpose. The process
of the law is being followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were
a person's detention was later made by virtue of a judicial order in relation to criminal cases
subsequently filed against the detainee, his petition for hebeas corpus becomes moot and
academic" (Beltran vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is a fumdamental rule
that a writ of habeas corpus will not be granted when the confinement is or has become legal,
although such confinement was illegal at the beginning" (Matsura vs. Director of Prisons, 77 Phil.
1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were
found with young boys in their respective rooms, the ones with John Sherman being naked.
Under those circumstances the CID agents had reasonable grounds to believe that petitioners
had committed "pedophilia" defined as "psychosexual perversion involving children" (Kraft-
Ebbing Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are
the preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665)
[Solicitor General's Return of the Writ, on p. 101. While not a crime under the Revised Penal
Code, it is behavior offensive to public morals and violative of the declared policy of the State to
promote and protect the physical, moral, spiritual, and social well-being of our youth (Article II,
Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a
waiver of any irregularity attending their arrest and estops them from questioning its validity
185

(Callanta v. Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza,
L-61770, January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section
37(a) of the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised
Administrative Code. Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the
purpose and deported upon the warrant of the Commissioner of Immigration and
Deportation after a determination by the Board of Commissioners of the existence
of the ground for deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and
indivisible nature of a deportation proceeding, otherwise, the very purpose of deportation
proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562). The specific constraints in both the 1935
1
and 1987
2
Constitutions, which are
substantially Identical, contemplate prosecutions essentially criminal in nature. Deportation
proceedings, on the other hand, are administrative in character. An order of deportation is never
construed as a punishment. It is preventive, not a penal process. It need not be conducted
strictly in accordance with ordinary Court proceedings.
It is of course well-settled that deportation proceedings do not constitute a
criminal action. The order of deportation is not a punishment, (Maliler vs. Eby,
264 U.S., 32), it being merely the return to his country of an alien who has broken
the conditions upon which he could continue to reside within our borders (U.S. vs.
De los Santos, 33 Phil., 397). The deportation proceedings are administrative in
character, (Kessler vs. Stracker 307 U.S., 22) summary in nature, and need not be
conducted strictly in accordance with the ordinary court proceedings (Murdock vs.
Clark, 53 F. [2d], 155). It is essential, however, that the warrant of arrest shall
give the alien sufficient information about the charges against him, relating the
facts relied upon. (U.S. vs. Uhl 211 F., 628.) It is also essential that he be given a
fair hearing with the assistance of counsel, if he so desires, before unprejudiced
investigators (Strench vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You On, 16 F.
[2d], 153). However, all the strict rules of evidence governing judicial controversies
do not need to be observed; only such as are fumdamental and essential like the
right of cross-examination. (U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark,
53 F. [2d], 155.) Hearsay evidence may even be admitted, provided the alien is
given the opportunity to explain or rebut it (Morrell vs. Baker, 270 F., 577;
Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre 81 Phil. 682
[1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance
of warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation
and before a final order of deportation is issued, conflicts with paragraph 3, Section I of Article III
of the Constitution" (referring to the 1935 Constitution)
3
is not invocable herein. Respondent
Commissioner's Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear
and show cause why they should not be deported. They were issued specifically "for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative
Code." Before that, deportation proceedings had been commenced against them as undesirable
aliens on 4 March 1988 and the arrest was a step preliminary to their possible deportation.
186

Section 37 of the Immigration Law, which empowers the Commissioner of
Immigration to issue warrants for the arrest of overstaying aliens is constitutional.
The arrest is a stop preliminary to the deportation of the aliens who had violated
the condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30,
1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the
detriment of the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien
temporary visitor preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for
his deportation under Section 37[al of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of the State.
(Ng Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need
be no "truncated" recourse to both judicial and administrative warrants in a single deportation
proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under
the express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful
whether the arrest of an individual may be ordered by any authority other than a judge if the
purpose is merely to determine the existence of a probable cause, leading to an administrative
investigation." For, as heretofore stated, probable cause had already been shown to exist before
the warrants of arrest were issued.
What is essential is that there should be a specific charge against the alien intended to be
arrested and deported, that a fair hearing be conducted (Section 37[c]) with the assistance of
counsel, if desired, and that the charge be substantiated by competent evidence. Thus, Section
69 of the Revised Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power
residing in the Philippines shall not be deported, expelled, or excluded from said
Islands or repatriated to his own country by the President of the Philippines
except upon prior investigation, conducted by said Executive or his authorized
agent, of the ground upon which such action is contemplated. In such a case the
person concerned shall be informed of the charge or charges against him and he
shall be allowed not less than 3 days for the preparation of his defense. He shall
also have the right to be heard by himself or counsel, to produce witnesses in his
own behalf, and to cross-examine the opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also challenged by them,
was in order because in deportation proceedings, the right to bail is not a matter of right but a
matter of discretion on the part of the Commissioner of Immigration and Deportation. Thus,
Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a
deportation proceeding may be released under bond or under such other conditions as may be
imposed by the Commissioner of Immigration." The use of the word "may" in said provision
187

indicates that the grant of bail is merely permissive and not mandatory on the part of the
Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang vs.
Commissioner of Immigration, L-9700, February 28,1962, 4 SCRA 442). "Neither the
Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens
facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs. Deportation Board, 104
Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action,
the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee
Sang vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory upon such
grounds as it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre
81 Phil. 682 [1948]). The power to deport aliens is an act of State, an act done by or under the
authority of the sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure
against undesirable aliens whose continued presence in the country is found to be injurious to
the public good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16
Phil. 534 [1910]). Particularly so in this case where the State has expressly committed itself to
defend the tight of children to assistance and special protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions prejudicial to their development (Article XV, Section
3[2]). Respondent Commissioner of Immigration and Deportation, in instituting deportation
proceedings against petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.
SO ORDERED.
Yap, C.J., Paras, Padilla and Sarmiento, JJ., concur.

Footnotes
1 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 warrant
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the
persons or things to be seized." (Sec. 1[3], Art. III).
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 search and the persons
or things to be seized." (Section 2, Art. III).
3 Reiterated in Neria vs. Vivo (L-26611-12, September 30, 1969, 29 SCRA 701);
Tiu vs. Vivo, L- 21425, September 15, 1972, 47 SCRA 23; and Ang Ngo Chiong vs.
Galang, L-21426, October 22, 1975, 67 SCRA 338).


188

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 143802 November 16, 2001
REYNOLAN T. SALES, petitioner,
vs.
SANDIGANBAYAN (4th Division), OMBUDSMAN, PEOPLE OF THE PHILIPPINES and
THELMA BENEMERITO,respondents.
YNARES-SANTIAGO, J.:
This Court is tasked to resolve the issue of whether or not the proper procedure was followed and
whether petitioner's constitutional rights were safeguarded during the preliminary investigation
conducted before the filing of an Information for Murder against him and the issuance of a
warrant for his arrest by respondent Sandiganbayan. Petitioner asserts that the Information was
hastily filed and the warrant for his arrest was improper because of an incomplete preliminary
investigation. Respondents say otherwise.
The pertinent factual antecedents are matters of record or are otherwise uncontroverted.
On August 2, 1999, petitioner, the incumbent town mayor of Pagudpud, Ilocos Norte, fatally shot
the former mayor and his political rival, Atty. Rafael Benemerito, in an alleged shootout in
Barangay Caparispisan of said municipality after a heated altercation between them. After the
shooting incident, petitioner surrendered and placed himself under the custody of the municipal
police then asked that he be brought to the Provincial PNP Headquarters in Laoag City.
The next day, August 3, 1999, Police Chief Inspector Crispin Agno and private respondent
Thelma Benemerito, wife of the victim, filed a criminal complaint for Murder
1
against petitioner
at the Municipal Circuit Trial Court of Bangui, Ilocos Norte, Branch 127, presided by Judge
Melvin U. Calvan.
Judge Calvan then conducted a preliminary examination of the witnesses, in accordance with
Section 6 (b), Rule 112 of the Rules on Criminal Procedure, found "the existence of probable
cause," and thereafter issued an order dated August 3, 1999 for the issuance of a warrant for the
arrest of petitioner with no bail recommended.
2
By virtue of the warrant of arrest, petitioner was
transferred on August 4, 1999 from the Provincial PNP Headquarters to the Provincial Jail.
On August 5, 1999, Judge Calvan, after conducting a "preliminary investigation in accordance
with Sec. 6 (b) of Rule 112 of the Rules on Criminal Procedure," issued a resolution forwarding
the records of the case to the Office of the Provincial Prosecutor of Ilocos Norte for appropriate
action.
3
In addition to the records transmitted by Judge Calvan, there was also submitted to the
Provincial Prosecutor of Ilocos Norte an NBI "Parallel Investigation" Report dated August 13,
1999, "pursuant to the request for Investigative Assistance made by Dra. Thelma Lasmarias
Benemerito, wife of the victim,"
4
with several annexed affidavits, sworn statements and
documents.
Subsequently, on August 19, 1999, petitioner received a subpoena dated August 18, 1999 from
the Provincial Prosecutor of Ilocos Norte directing him to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents within ten (10) days from
receipt thereof.
5
This petitioner did the following day, August 20, 1999.
189

While the foregoing proceedings were ongoing, petitioner filed a petition for habeas corpus with
the Court of Appeals docketed as CA-G.R. SP No. 54416, alleging that: 1.] the order and warrant
of arrest for which petitioner was detained is null and void for being issued by respondent judge
who was disqualified by law from acting on the case by reason of his affinity to private
respondent Thelma Benemerito; and 2.] the preliminary examination by respondent judge was so
illegally and irregularly conducted as to oust the said judge of jurisdiction over the case.
In a Decision dated November 18, 1999,
6
the appellate court granted the petition for habeas
corpus and ordered the release of petitioner from detention subject to the outcome of the proper
preliminary investigation. In granting the petition, the Court of Appeals reasoned, inter alia, that:
I
It is uncontroverted that respondent Judge is a relative within the third civil degree of
affinity of private respondent Thelma Benemerito. Respondent judge is married to Susana
Benemerito-Calvan, whose father is a brother of the victim.
Section 1, Rule 137 of the Rules of Court disqualifies a judge from sitting in a case in
which he is related to either party within the sixth degree of consanguinity or affinity.
This disqualification is mandatory, unlike an inhibition which is discretionary. It extends
to all proceedings, not just to the trial as erroneously contended by respondent judge.
Even Canon 3.12 of the Code of Judicial Conduct mandates that a judge shall take no
part in a proceeding where the judge's impartiality might be reasonably questioned, as
when he is "related by consanguinity or affinity to a party litigant within the sixth degree."
Due process likewise requires hearing before an impartial and disinterested tribunal so
that no judge shall preside in a case in which he is not wholly free, disinterested,
impartial and independent.
7

xxx xxx xxx
II
The preliminary examination conducted by respondent Judge does not accord with the
prevailing rules. He did it under the old rules, where the preliminary investigation by the
municipal judge has two stages: (1) the preliminary examination stage during which the
investigating judge determines whether there is reasonable ground to believe that an
offense has been committed and the accused is probably guilty thereof, so that a warrant
of arrest may be issued and the accused held for trial; and (2) the preliminary
investigation proper where the complaint or information is read to the accused after his
arrest and he is informed of the substance of the evidence adduced against him, after
which he is allowed to present evidence in his favor if he so desires. Presidential Decree
911 (further amending Sec. 1, R.A. 5180, as amended by P.D. 77) upon which the present
rule is based, removed the preliminary examination stage and integrated it into the
preliminary investigation proper. Now the proceedings consists of only one stage.
8

Respondent Judge did not conduct the requisite investigation prior to issuance of the
arrest warrant. The Rules require an examination in writing under oath in the form of
searching questions and answers.
9
The statements of witnesses were not sworn before
him but before the Provincial Prosecutor. The purported transcript of stenographic notes
do not bear the signature of the stenographer.
Moreover, he did not complete the preliminary investigation. He claimed to have examined
only the witnesses of the complainant. He issued a Resolution and forwarded the records
to the Provincial Prosecutor without giving the accused (petitioner) an opportunity to
submit counter- affidavits and supporting documents.
10

190

While it is true that the usual remedy to an irregular preliminary investigation is to ask
for a new preliminary investigation, such normal remedy would not be adequate to free
petitioner from the warrant of arrest which stemmed from that irregular investigation.
The Provincial Prosecution has no power to recall the warrant of arrest.
Meanwhile, after receipt of the records of the case from Judge Calvan as well as petitioner-
accused's counter-affidavits, the Ilocos Norte Provincial Prosecutor, instead of conducting a
preliminary investigation of his own, merely forwarded the said records to the Ombudsman for
the latter to conduct the same.
It appears that petitioner was only apprised of the foregoing inaction on the case by the
Provincial Prosecutor when he received on September 10, 1999 a Memorandum dated September
2, 1999,
11
filed by private respondent's counsel, requesting that the case, I.S. No. 99-548, "be
remanded to Office of the Ombudsman for preliminary investigation and, thereafter, for the
prosecution of the appropriate indictments before the Sandiganbayan."
12

On January 27, 2000, petitioner received a notice from the Ombudsman directing him to file his
counter-affidavits. Considering that petitioner had already submitted his counter-affidavits to the
Ilocos Norte Provincial Prosecutor as far back as August 20, 1999, he found the directive
superfluous and did not act on it.
On May 25, 2000, Graft Investigation Officer II Cynthia V. Vivar issued a
Resolution
13
recommending the filing of an Information for Murder against petitioner and four
others
14
before the Sandiganbayan. The recommendation was approved by the Ombudsman on
June 16, 2000.
15

It appears that petitioner belatedly received a copy of the foregoing Resolution of the graft
investigation officer only on June 21, 2000, and because he was thus effectively prevented from
seeking a reconsideration thereof, he then filed a Motion To Defer Issuance Of Warrant Of Arrest
pending determination of probable cause dated June 22, 2000.
16
The motion was denied by
Sandiganbayan's Fourth Division in the challenged Resolution of July 13, 2000.
17

Owing to the urgency of the matter, petitioner opted to directly resort to this recourse eschewing
the filing of a motion for reconsideration on the grounds that
(A) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN
IT RULED HIM TO HAVE NO STANDING TO OBJECT TO THE ISSUANCE OF A
WARRANT FOR HIS ARREST SINCE HE HAS NOT SUBMITTED TO ITS CUSTODY.
(B) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN
IT ISSUED A WARRANT FOR HIS ARREST ON THE BASIS OF AN INCOMPLETE
PRELIMINARY INVESTIGATION.
(C) THE OMBUDSMAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN IT
HURRIEDLY FILED AN INFORMATION FOR MURDER AGAINST HIM WITHOUT
SCRUTINIZING, OR EVEN ONLY READING, ALL THE EVIDENCE BEFORE HIM AND
WITHOUT CALLING FOR PRODUCTION OF THE CRITICAL PHYSICAL EVIDENCE.
(D) NOT ONLY DID THE SANDIGANBAYAN GRAVELY ABUSE ITS DISCRETION WHEN IT
RELIED ON AN INCOMPLETE PRELIMINARY INVESTIGATION CONDUCTED BY THE
OMBUDSMAN BUT IT FURTHER AGGRAVATED THIS GRAVE ABUSE WHEN IT
OMITTED ALTOGETHER TO CONDUCT ITS OWN INDEPENDENT REVIEW OF THE
EVIDENCE OF PROBABLE CAUSE.
191

The primordial question to be resolved in this controversy is whether or not the Ombudsman
followed the proper procedure in conducting a preliminary investigation and, corollarily, whether
or not petitioner was afforded an opportunity to be heard and to submit controverting evidence.
As this Court pointed out in Duterte v. Sandiganbayan,
18
"[t]he purpose of a preliminary
investigation or a previous inquiry of some kind, before an accused person is placed on trial, is to
secure the innocent against hasty, malicious and oppressive prosecution and to protect him from
an open and public accusation of a crime, from the trouble, expenses and anxiety of a public
trial.
19
It is also intended to protect the state from having to conduct useless and expensive
trials.
20
While the right is statutory rather than constitutional in its fundament, it is a
component part of due process in criminal justice. The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is a substantive
right. To deny the accused's claim to a preliminary investigation would be to deprive him of the
full measure of his right to due process."
21

Although a preliminary investigation is not a trial and is not intended to usurp the function of
the trial court, it is not a casual affair. The officer conducting the same investigates or inquires
into the facts concerning the commission of the crime with the end in view of determining
whether or not an information may be prepared against the accused. Indeed, preliminary
investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of
the guilt of the accused must be adduced so that when the case is tried, the trial court may not
be bound as a matter of law to order an acquittal. A preliminary investigation has been called a
judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when there is an
opportunity to be heard and for the production of and weighing of evidence, and a decision is
rendered thereon.
22

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a
preliminary investigation is no less than a municipal judge or even a regional trial court judge.
While the investigating officer, strictly speaking, is not a "judge" by the nature of his functions,
he is and must be considered to be a quasi-judicial officer because a preliminary investigation is
considered a judicial proceeding.
23
A preliminary investigation should therefore
be scrupulously conducted so that the constitutional right to liberty of a potential accused can be
protected from any material damage.
24

Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence may
be considered. While even raw information may justify the initiation of an investigation, the stage
of preliminary investigation can be held only after sufficient evidence has been gathered and
evaluated warranting the eventual prosecution of the case in court.
25
In other words
. . . it is not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of the
guarantee of freedom and fair play which are the birthrights of all who live in our country.
It is therefore imperative upon the fiscal or the judge, as the case may be, to relieve the
accused from the pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to form a
sufficient belief as to the guilt of the accused. Although there is no general formula or
fixed rule for the determination of probable cause since the same must be decided in the
light of the conditions obtaining in given situations and its existence depends to a large
degree upon the finding or opinion of the judge conducting the examination, such a
finding should not disregard the facts before the judge nor run counter to the clear dictates
of reason.
26

192

Measured vis-a-vis the foregoing legal yardsticks, we hold that the proper procedure in the
conduct of the preliminary investigation was not followed, for the following reasons:
First, the records show that the supposed preliminary investigation was conducted in
installments by at least three (3) different investigating officers, none of whom completed the
preliminary investigation. There was not one continuous proceeding but rather a case of passing
the buck, so to speak, the last one being the Ombudsman hurriedly throwing the buck to the
Sandiganbayan. This practice of "passing the buck" by the Ombudsman to the Sandiganbayan
was met with disapproval in Venus v. Desierto
27
where this Court speaking through then
Associate Justice, now Chief Justice Hilario G. Davide, Jr., trenchantly said that:
Upon a subsequent re-assessment of the evidence as a consequence of petitioner's motion
for reconsideration, another Special Prosecution Officer . . . found that petitioner had not
violated Sec. 3 (e) of R.A. No. 3019, as amended, he thus, recommended dismissal of the
case for want of probable cause and the filing of the corresponding manifestation to
inform the Sandiganbayan of the result of the motion for reconsideration. In this instance
the Special Prosecutor himself concurred with the finding. However, the Ombudsman
disapproved the recommendation as he found that probable cause existed but opted to
"allow the court to find absence of bad faith."
This marginal note of the Ombudsman simply meant that he believed that petitioner was
in bad faith. However, good faith is always presumed and the Chapter on Human
Relations of the Civil Code directs every person, inter alia, to observe good faith which,
according to the Commission, springs from the foundation of good conscience. Therefore,
he who charges another with bad faith must prove it. In this sense, the Ombudsman
should have first determined the facts indicative of bad faith. On the basis alone of the
finding and conclusion of Special Prosecution Officer III Victor Pascual, with which the
Special Prosecutor concurred, there was no showing of bad faith on the part of petitioner.
It was, therefore, error for the Ombudsman to "pass the buck", so to speak, to the
Sandiganbayan to find "absence of bad faith."
xxx xxx xxx.
28

Second, the charge against herein petitioner is Murder, a non-bailable offense. The gravity of the
offense alone, not to mention the fact that the principal accused is an incumbent mayor whose
imprisonment during the pendency of the case would deprive his constituents of their duly-
elected municipal executive, should have merited a deeper; and more thorough preliminary
investigation. The Ombudsman, however, did nothing of the sort and instead swallowed hook,
line and sinker the resolution and recommendation of Graft Investigation Officer II Cynthia V.
Vivar, among them the finding that, "aside from the averment of respondent that the victim fired
at him and he was only forced to fire back, no other evidence was adduced to indicate that such
was what happened."
29

There are, however, four affidavits on record
30
which state in categorical terms that it was the
victim who first fired at petitioner with his Armalite rifle and that petitioner merely returned fire. An
Armalite rifle and empty shells were recovered from the scene of the incident by the PNP and
impounded by it. According to the Physical Science Report No. C-147A-99,
31
some of the shells
correspond to the Armalite rifle, thereby indicating that the firearm was fired. The Ombudsman,
however, neither called for the production of the firearm and the empty shells, nor did he ask for
the production of the ballistic and laboratory examinations of the bloodstains on the Armalite
rifle despite the statement by the Provincial Fiscal of Ilocos Norte that these pieces of evidence
were all available.
32

There are, furthermore, other dubious circumstances which should have prompted the
Ombudsman to take a second, deeper look instead of adopting in toto the recommendation of
193

GIO II Vivar. Among these is the matter of the two (2) different autopsies on the cadaver of the
victim, one indicating that the victim sustained two (2) wounds only and the other showing that
the victim had three (3) wounds. The significance of this fact was not appreciated by the
Ombudsman who likewise glossed over the adamant refusal of the private respondent to subject
the cadaver of the victim to a paraffin test, despite the claims of the accused's witnesses that the
victim fired the Armalite rifle.
Given the foregoing circumstances, the Ombudsman for all practical purposes did an even worse
job than Judge Calvan for, by adopting in its entirety the findings of the investigating officer
despite its obvious flaws, he actually did nothing at all and, in effect, threw everything to the
Sandiganbayan for evaluation. This practice, as earlier stated, was not condoned in Venus v.
Desierto, supra. Nor will it be in this case. Prosecutors are endowed with ample powers in order
that they may properly fulfill their assigned role in the administration of justice. It should be
realized, however, that when a man is haled to court on a criminal charge, it brings in its wake
problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to
weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie
case before filing the information in court. Anything less would be a dereliction of duty.
33

Third, a person under preliminary investigation by the Ombudsman is entitled to file a motion for
reconsideration of the adverse resolution. This right is provided for in the very Rules of Procedure
of the Ombudsman,
34
which states:
SEC. 7. Motion for Reconsideration.
a) Only one motion for reconsideration or reinvestigation of an approved order or
resolution shall be allowed, the same to be filed within fifteen (15) days from notice
thereof with the Office of the Ombudsman or the Deputy Ombudsman as the case may
be.
b) No motion for reconsideration or reinvestigation shall be entertained after the
information shall have been filed in court, except upon order of the court wherein the
case was filed. (Emphasis supplied).
The filing of a motion for reconsideration is an integral part of the preliminary investigation
proper. There is no dispute that the Information was filed without first affording petitioner-
accused his right to file a motion for reconsideration. The denial thereof is tantamount to a
denial of the right itself to a preliminary investigation. This fact alone already renders
preliminary investigation conducted in this case incomplete. The inevitable conclusion is that the
petitioner was not only effectively denied the opportunity to file a motion for reconsideration of
the Ombudsman's final resolution but also deprived of his right to a full preliminary investigation
preparatory to the filing of the information against him.
35

As stated earlier, it appears that petitioner belatedly received a copy of the May 25, 2000
Resolution of Graft Investigation Officer II Cynthia V. Vivar only on June 21, 2000. Because he
was thus effectively precluded from seeking a reconsideration thereof, he then filed a Motion To
Defer Issuance Of Warrant Of Arrest pending determination of probable cause.
36
The
Sandiganbayan denied the motion in its challenged Resolution of July 13, 2000,
37
and forthwith
ordered the issuance of the warrant of arrest against petitioner. Suffice it to state in this regard
that such a deprivation of the right to a full preliminary investigation preparatory to the filing of
the information warrants the remand of the case to the Ombudsman for the completion thereof.
38

Fourth, it was patent error for the Sandiganbayan to have relied purely on the Ombudsman's
certification of probable cause given the prevailing facts of this case much more so in the face of
the latter's flawed report and one-sided factual findings. In the order of procedure for criminal
cases, the task of determining probable cause for purposes of issuing a warrant of arrest is a
194

responsibility which is exclusively reserved by the Constitution to judges.
39
People v.
Inting
40
clearly delineated the features of this constitutional mandate, viz: 1.] The determination
of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to
ascertain. Only the judge and the judge alone makes this determination; 2.] The preliminary
inquiry made by a prosecutor does not bind the judge. It merely assists him in making the
determination of probable cause. It is the report, the affidavits, the transcripts of stenographic
notes, if any, and all other supporting documents behind the prosecutor's certification which are
material in assisting the judge in his determination of probable cause; and 3.] Judges and
prosecutors alike should distinguish the preliminary inquiry which determines probable cause
for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains
whether the offender should be held for trial or be released. Even if the two inquiries be made in
one and the same proceeding, there should be no confusion about their objectives. The
determination of probable cause for purposes of issuing the warrant of arrest is made by the
judge. The preliminary investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or not he should
be subjected to the expense, rigors and embarrassment of trial is the function of the
prosecutor.
Stated differently, while the task of conducting a preliminary investigation is assigned either to
an inferior court magistrate or to a prosecutor,
41
only a judge may issue a warrant of arrest.
When the preliminary investigation is conducted by an investigating prosecutor, in this case the
Ombudsman,
42
the determination of probable cause by the investigating prosecutor cannot serve
as the sole basis for the issuance by the court of a warrant of arrest. This is because the court
with whom the information is filed is tasked to make its own independent determination of
probable cause for the issuance of the warrant of arrest. Indeed
. . . the Judge cannot ignore the clear words of the 1987 Constitution which requires . . .
probable cause to be personally determined by the judge . . . not by any other officer or
person.
xxx xxx xxx
The extent of the Judge's personal examination of the report and its annexes depends on
the circumstances of each case. We cannot determine beforehand how cursory or
exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for, after all, the personal determination is
vested in the Judge by the Constitution. It can be brief or as detailed as the
circumstances of each case may require. To be sure, the Judge must go beyond the
Prosecutor's certification and investigation report whenever necessary. He should call for
the complainant and witnesses themselves to answer the court's probing questions when
the circumstances so require.
xxx xxx xxx
We reiterate that in making the required personal determination, a Judge is not
precluded from relying on the evidence earlier gathered by responsible officers. The extent
of the reliance depends on the circumstances of each case and is subject to the Judge's
sound discretion. However, the Judge abuses that discretion when having no evidence
before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a grave error when he relied solely on the
Prosecutor's certification and issued the questioned Order dated July 5, 1990 without
having before him any other basis for his personal determination of the existence of
probable cause.
43

195

All told, the Court cannot accept the Sandiganbayan's assertions of having found probable cause
on its own, considering the Ombudsman's defective report and findings, which merely relied on
the testimonies of the witnesses for the prosecution and disregarded the evidence for the
defense.
44
In Roberts v. CA,
45
the trial judge was chastised by the Court for issuing a warrant of
arrest without even reviewing the records of the preliminary investigation which were then still
with the Department of Justice. In the case at bar, it cannot be said that the Sandiganbayan
reviewed all the records forwarded to it by the Ombudsman considering the fact that the
preliminary investigation which was incomplete escaped its notice.
What the Sandiganbayan should have done, faced with such a slew of conflicting evidence from
the contending parties, was to take careful note of the contradictions in the testimonies of the
complainant's witnesses as well as the improbabilities in the prosecution evidence.
46
Certainly
. . . probable cause may not be established simply by showing that a trial judge
subjectively believes that he has good grounds for his action. Good faith is not enough. If
subjective good faith alone were the test, the constitutional protection would be
demeaned and the people would be "secure in their persons, houses, papers and effects"
only in the fallible discretion of the judge.
47
On the contrary, the probable cause test is an
objective one, for in order that there be probable cause the facts and circumstances must
be such as would warrant a belief by a reasonably discreet and prudent man that the
accused is guilty of the crime which has just been committed.
48
This, as we said is the
standard. x x x
xxx xxx xxx
The sovereign power has the inherent right to protect itself and its people from the vicious
acts which endanger the proper administration of justice; hence the State has every right
to prosecute and punish violators of the law. This is essential for its self-preservation, nay
its very existence. But this does not confer a license for pointless assaults on its citizens.
The right of the State to prosecute is not a carte blanche for government agents to defy
and disregard the rights of its citizens under the Constitution. Confinement, regardless of
duration, is too a high a price to pay for reckless and impulsive prosecution. x x x
The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees the preservation of
our natural rights which include personal liberty and security against invasion by the
government or any of its branches or instrumentalities. Certainly, in the hierarchy of
rights, the Bill of Rights takes precedence over the right of the State to prosecute, and
when weighed against each other, the scales of justice tilt towards the former. Thus, relief
may be availed of to stop the purported enforcement of criminal law where it is necessary
to provide for an orderly administration of justice, to prevent the use of the strong arm of
the law in an oppressive and vindictive manner, and to afford adequate protection to
constitutional rights.
49

In this case, the undue haste in filing of the information against petitioner cannot be ignored.
From the gathering of evidence until the termination of the preliminary investigation, it appears
that the state prosecutors were overly-eager to file the case and to secure a warrant of arrest of
petitioner without bail and his consequent detention. There can be no gainsaying the fact that
the task of ridding society of criminals and misfits and sending them to jail in the hope that they
will in the future reform and be productive members of the community rests both on the
judiciousness of judges and the prudence of the prosecutors. There is however, a standard in the
determination of the existence of probable cause. The determination has not measured up to that
standard this case.
WHEREFORE, in view of all the foregoing, judgment is hereby rendered:
196

1.] SETTING ASIDE the Resolutions of the Sandiganbayan dated July 13, 2000 and the
Resolution of Graft Investigation Officer II Cynthia V. Vivar dated May 25, 2000 in Criminal Case
No. 26115;
2.] Ordering the Sandiganbayan to QUASH the warrant of arrest it issued against petitioner;
3.] REMANDING the case to the Ombudsman for completion of the preliminary investigation.
SO ORDERED.
Davide, Jr., C. J., Puno, Kapunan and Pardo, JJ., concur.


Footnotes
1
Rollo, p. 97.
2
Ibid, p. 98.
3
Id., pp. 99-100.
4
Id., pp. 102-107.
5
Id., p. 101.
6
Rollo, pp. 109-121.
7
Gutierrez v. Santos, 2 SCRA 249, 254 [1961].
8
Sangguniang Bayan v. Albano, 260 SCRA 566 [1996].
9
Roberts, Jr. v. CA, 254 SCRA 307 [1996]; Section 6 (b), Rule 112, Rules of Court.
10
Section 3 (b), Rule 112, Rules of Court.
11
Rollo, pp. 122-124.
12
Id., p. 124.
13
Id., pp. 43-49.
14
Id., pp. 50-51.
15
Id., pp. 49,51.
16
Id., pp. 52-58.
17
Id., pp. 38-42.
18
289 SCRA 721, 737-738 [1998].
197

19
Rodis v. Sandiganbayan, 166 SCRA 618 [1988]; People v. Poculan, 167 SCRA 155
[1988].
20
Tandioc v. Resultan, 175 SCRA 37 [1989].
21
Doromal v. Sandiganbayan, 177 SCRA 354 [1980]; Go v. CA, 206 SCRA 138 [1992].
22
Cojuangco v. PCGG, 190 SCRA 226 [1990].
23
Cruz v. People, 237 SCRA 439 [1994].
24
Webb v. De Leon, 247 SCRA 652 [1995].
25
Olivas v. Office of the Ombudsman, 239 SCRA 283 [1994].
26
Herrera O.M. Remedial Law, Vol. IV, 2001 ed., p. 231, citing La Chemise Lacoste S.A. v.
Fernandez, 129 SCRA 391 [1984] and Ortiz v. Palaypon, 234 SCRA 391 [1994].
27
298 SCRA 196, 214-216 [1998].
28
Salonga v. Cruz, 134 SCRA 438, 461-462 [1985], citing Hashim v. Boncan, 71 Phil. 216,
225 [1941];Trocio v. Manta, 118 SCRA 241, 245 [1982].
29
Resolution dated 25 May 2000, p. 5; Rollo, p. 48.
30
Rollo, pp. 131-144; Affidavits of Merly G. Bacud, Elmer Avedao, Gilbert G. Ortega and
Eduardo Lorenzo, attached as Annexes I, J, K, and L of Reply to Opposition (Annex F,
Petition).
31
Id., p. 168.
32
Id., pp. 160-161.
33
Bernardo v. Mendoza, 90 SCRA 214 [1979]; Vda. de Jacob v. Puno, 131 SCRA 148-149
[1984].
34
Administrative Order No. 7.
35
Torralba v. Sandiganbayan, 230 SCRA 33 [1994].
36
Rollo, pp. 52-58.
37
Ibid., pp. 38-42.
38
Vasquez v. Hobilla-Alinio, 271 SCRA 67 [1997]: Torralba v. Sandiganbayan, supra.
39
Article III, Section 2, Constitution.
40
187 SCRA 788, 792-793 [1990].
41
Section 2, Rule 112, 2000 Revised Rules on Criminal Procedure.
198

42
See Section 11 (4), R.A. No. 6770 otherwise known as the Ombudsman Act of 1989.
43
Lim, Sr. v. Felix, 194 SCRA 292, 305-307 [1991].
44
See People v. Villarez, G.R. No. 133795, 27 July 2000, 336 SCRA 515, 536.
45
254 SCRA 307 [1996].
46
Allado v. Diokno, 232 SCRA 192 [1994].
47
Beck v. Ohio, 379 U.S. 89, 85 S Ct. 223, 13 L Ed. 2d 142 [1964].
48
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 [1968].
49
Allado v. Diokno, supra, pp. 206-207, 209-210.


















199

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 81756 October 21, 1991
NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA
SILVA, petitioners,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL,
BRANCH XXXIII, DUMAGUETE CITY, respondent.
Marcelo G. Flores for petitioners.

FERNAN, C.J.:p
In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1
issued by respondent Judge as well as the return of the money in the amount of P1,231.00
seized from petitioner Antonieta Silva.
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in
Dumaguete City, Negros Oriental, filed an "Application for Search Warrant" with the Regional
Trial Court, Branch XXXIII, Dumaguete City against petitioners Nicomedes Silva and Marlon
Silva. 1 This application was accompanied by a "Deposition of Witness" executed by Pfc. Arthur
M. Alcoran and Pat. Leon T. Quindo, also dated June 13, 1986. 2
On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court,
Branch XXXIII, Dumaguete City, pursuant to the said "Application for Search Warrant" and
"Deposition of Witness", issued Search Warrant No. 1, directing the aforesaid police officers to
search the room of Marlon Silva in the residence of Nicomedes Silva for violation of Republic Act
No. 6425, otherwise known as the Dangerous Drugs Act of 1972. as amended. Pertinent portions
of Search Warrant No. 1 read as follows:
It appearing to the satisfaction of the undersigned after examining oath
(sic) MSGT. Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc. Arthur M. Alcoran
and Pat. Leon T. Quindo that there is probable cause to believe that possession
and control of Marijuana dried leaves, cigarettes, joint has been committed or is
about to be committed and that there are good and sufficient reasons to believe
that marijuana dried leaves, cigarettes, joint has in possession and/or control
at Tama's Room (Rgt. side lst Floor) located at Nono-Limbaga Drive, Tanjay, Neg.
Or. which is/are:
X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits of the offense;
200

X (Used or intended to be used as means of committing an offense.
You are hereby commanded to make an immediate search at any time of the day
(night) of the room of Tama Silva residence of his father Comedes Silva to
open (sic) aparadors, lockers, cabinets, cartoons, containers, forthwith seize and
take possession of the following property Marijuana dried leaves, cigarettes,
joint and bring the said property to the undersigned to be dealt with as the law
directs. 3
In the course of the search, the serving officers also seized money belonging to Antonieta Silva in
the amount of P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the
grounds that the search warrant only authorized the serving officers to seize marijuana dried
leaves, cigarettes and joint, and that said officers failed or refused to make a return of the said
search warrant in gross violation of Section 11, Rule 126 of the Rules of Court. 4
Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court
"holds in abeyance the disposition of the said amount of P1,231.40 pending the filing of
appropriate charges in connection with the search warrant." 5
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that
(1) it was issued on the sole basis of a mimeographed "Application for Search Warrant" and
"Deposition of Witness", which were accomplished by merely filling in the blanks and (2) the
judge failed to personally examine the complainant and witnesses by searching questions and
answers in violation of Section 3, Rule 126 of the Rules of Court. 6
On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had
replaced retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the
requisites necessary for the issuance of a valid search warrant duly complied with. 7
A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by
Judge Cruz in an order dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that
respondent Judge should be viewed to have acted without or in excess of jurisdiction, or
committed grave abuse of discretion amounting to lack of jurisdiction when he issued the Order
dated August 11, 1987, denying their motion to quash Search Warrant No, 1.
We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal
liberty and security of homes against unreasonable searches and seizures. This section provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
201

The purpose of the constitutional provision against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasion of the sanctity of the
home, by officers of the law acting under legislative or judicial sanction, and to give remedy
against such usurpations when attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance
of a search warrant, to wit:
SEC. 3. Requisite for issuing search warrant. A search warrant shall not issue
but upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized.
SEC. 4. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and any witnesses he may produce on
facts personally known to them and attach to the record their sworn statements
together with any affidavits submitted.
Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a
search warrant, determine whether there is probable cause by examining the complainant and
witnesses through searching questions and answers.
In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this
Court defined "probable cause" as follows:
The "probable cause" for a valid search warrant, has been defined "as such facts
and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and that objects sought in connection
with the offense are in the place sought to be searched". This probable cause must
be shown to be within the personal knowledge of the complainant or the witnesses
he may produce and not based on mere hearsay.
In the case at bar, we have carefully examined the questioned search warrant as well as the
"Application for Search Warrant" and "Deposition of Witness", and found that Judge Ontal failed
to comply with the legal requirement that he must examine the applicant and his witnesses in
the form of searching questions and answers in order to determine the existence of probable
cause. The joint "Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was
submitted together with the "Application for Search Warrant" contained, for the most part
suggestive questions answerable by merely placing "yes" or "no" in the blanks provided thereon.
In fact there were only four (4) questions asked, to wit:
Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the
applicant for a search warrant?
A Yes, sir.
Q Do you have personal knowledge that the said premises subject
of the offense stated above, and other proceeds of fruit of the
offense, used or obtain (sic) or intended to be used as means of
committing an offense?
A Yes, sir.
202

Q Do you know personally who is/are the person who has/have the
property in his/their possession and control?
A Yes, sir.
Q How did you know all this (sic) things?
A Through discreet surveillance. 9
The above deposition did not only contain leading questions but it was also very broad. The
questions propounded to the witnesses were in fact, not probing but were merely routinary. The
deposition was already mimeogragphed and all that the witnesses had to do was fill in their
answers on the blanks provided.
In the case of Nolasco vs. Pao, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court
held:
The "probable cause" required to justify the issuance of a search warrant
comprehends such facts and circumstances as will induce a cautious man to rely
upon them and act in pursuant thereof. Of the 8 questions asked, the 1st, 2nd
and 4th pertain to identity. The 3rd and 5th are leading not searching questions.
The 6th, 7th and 8th refer to the description of the personalities to be seized,
which is identical to that in the Search Warrant and suffers from the same lack of
particularity. The examination conducted was general in nature and merely
repetitious of the deposition of said witness. Mere generalization will not suffice
and does not satisfy the requirements or probable cause upon which a warrant
may issue.
Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as
invalid due to the failure of the judge to examine the witness in the form of searching questions
and answers. Pertinent portion of the decision reads:
Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was
too brief and short. Respondent Judge did not examine him "in the form of
searching questions and answers". On the contrary, the questions asked were
leading as they called for a simple "yes" or "no" answer. As held in Quintero vs.
NBI,"the questions propounded by respondent Executive Judge to the applicant's
witness' are not sufficiently searching to establish probable cause. Asking of
leading questions to the deponent in an application for search warrant, and
conducting of examination in a general manner, would not satisfy the
requirements for issuance of a valid search warrant. 10
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and
statutory requirement that he must determine the existence of probable cause by personally
examining the applicant and his witnesses in the form of searching questions and answers. His
failure to comply with this requirement constitutes grave abuse of discretion. As declared
in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, "the capricious
disregard by the judge in not complying with the requirements before issuance of search
warrants constitutes abuse of discretion".
The officers implementing the search warrant clearly abused their authority when they seized the
money of Antonieta Silva. This is highly irregular considering that Antonieta Silva was not even
named as one of the respondents, that the warrant did not indicate the seizure of money but only
of marijuana leaves, cigarettes and joints, and that the search warrant was issued for the seizure
of personal property (a) subject of the offense and (b) used or intended to be used as means of
203

committing an offense and NOT for personal property stolen or embezzled or other proceeds of
fruits of the offense. Thus, the then presiding Judge Ontal likewise abused his discretion when
he rejected the motion of petitioner Antonieta Silva seeking the return of her seized money.
WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void.
Respondent Judge of the Regional Trial Court of Negros Oriental, Branch XXXIII is directed to
order the return to petitioner Antonieta Silva of the amount of P1,231.40 which had earlier been
seized from her by virtue of the illegal search warrant. This decision is immediately executory. No
costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

# Footnotes
1 Rollo, p. 20.
2 Rollo, p, 21.
3 Rollo, p. 22.
4 Rollo, pp. 23-24.
5 Rollo, p. 25.
6 Rollo, pp. 26-27.
7 Rollo, p. 29
8 Alvero v. Dizon, 76 Phil. 637 (1946).
9 Rollo, p. 21.
10 Supra at p. 79.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-95630 June 18, 1992
204

SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,
vs.
THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at
Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal
Investigation Service,respondents.

PARAS, J.:
This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules
of Court:certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying
herein petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to
resolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings
on the ground that the legal basis therefore is unconstitutional for being violative of the due
process and equal protection clauses of the Constitution.
The facts of this case are as follows:
Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline
Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to the
position of Assistant Administrator of the Social Security System sometime in June, 1988, he
and his family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently
residing. The care and upkeep of their residence in Davao City was left to two (2) houseboys,
Jimmy Favia and Eric Burgos, who had their assigned quarters at a portion of the premises. The
Veroys would occasionally send money to Edna Soguilon for the salary of the said houseboys and
other expenses for the upkeep of their house. While the Veroys had the keys to the interior of the
house, only the key to the kitchen, where the circuit breakers were located, was entrusted to
Edna Soguilon to give her access in case of an emergency. Hence, since 1988, the key to the
master's bedroom as well as the keys to the children's rooms were retained by herein Petitioners
so that neither Edna Soguilon nor the caretakers could enter the house.
On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a
directive issued by Metrodiscom Commander Col. Franco Calida, raided the house of herein
petitioners in Davao City on information that the said residence was being used as a safehouse of
rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter
the house since the owner was not present and they did not have a search warrant. Petitioner
Ma. Luisa was contacted by telephone in her Quezon City residence by Capt. Obrero to ask
permission to search the house in Davao City as it was reportedly being used as a hideout and
recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to
Davao City to witness the search but relented if the search would not be conducted in the
presence of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a long time family
friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to
Major Macasaet who answered that Ma. Luisa Veroy has called him twice by telephone on the
matter and that the permission was given on the condition that the search be conducted in his
presence.
The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners in
Skyline Village to conduct the search pursuant to the authority granted by petitioner Ma. Luisa
Veroy. The caretakers facilitated their entry into the yard, and using the key entrusted to Edna
Soguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name of
George Badiang had to be employed to open the padlock of the door leading to the children's
room. Capt. Obrero and Major Macasaet then entered the children's room and conducted the
search. Capt. Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live
bullets in a black clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing
205

printed materials of RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the
petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the children's
recreation and study area revealed a big travelling bag containing assorted polo shirts, men's
brief, two (2) pieces polo barong and short sleeve striped gray polo. sweat shirt, two (2) pairs
men's socks, a towel made in U.S.A., one blanket, a small black bag, Gandhi brand, containing a
book entitled "Islamic Revolution Future Path of the Nation", a road map of the Philippines, a
telescope, a plastic bag containing assorted medicines and religious pamphlets was found in the
master's bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to make an inventory and
receipt of the articles seized, in the house (Annex "F" of the Petition, Rollo, p. 48). Said receipt
was signed by Eric Burgos, one of the caretakers, and George Badiang, the locksmith, as
witnesses. Sgt. Justalero turned over the articles to Sgt. Rodolfo Urbano at the police station.
The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo
Ponferrada who was designated Acting Provincial Prosecutor for Davao City by the Department of
Justice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6,
1990, Fiscal Ponferrada recommended the filing of an information against herein petitioners for
Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in
Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. an
Information for the said offense was filed by the Office of the City Prosecutor of Davao City before
the Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No.
20595-90 and entitled"People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa
Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was recommended by the prosecution.
The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the
petitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before herein
respondent Judge Layague which was denied on August 17, 1990 for being premature since at
that time, petitioners had not yet been arrested. Despite the fact that the warrants for their
arrest have not yet been served on them, herein petitioners voluntarily surrendered themselves
to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint.
However, the latter refused to receive them on the ground that his office has not yet received
copies of their warrants of arrest.
In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital
for various ailments brought about or aggravated by the stress and anxiety caused by the filing
of the criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that
they be allowed to be confined at the hospital and placed under guard thereat.
In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made
its return to the trial court informing the latter of the voluntary surrender of herein petitioners
and the fact that they were under hospital confinement. Herein Petitioner reiterated their Motion
for Bail. In an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing
for the Motion for Ball was set for August 31, 1990 to enable the prosecution to present evidence
it opposition to said motion. The prosecution filed its written opposition (Annex "N" of the
Petition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was
strong and thereafter presented its evidence.
On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein
petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon
their arraignment, herein Petitioners entered a plea of not guilty and filed an "Urgent Motion for
Hospital Confinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in
its Order dated October 2, 1990 (Annex "P" of the Petition,Rollo, p. 80). It likewise ordered their
commitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the
merits. Herein petitioners argued orally a motion for reconsideration which was opposed by the
prosecution. At the conclusion thereof, the court a quo issued a second order annex "Q" of the
Petition, Rollo, p. 83) denying then motion for reconsideration and as to the alternative prayer to
reopen the motion for hospital confinement, set the continuance thereof to October 17, 1990. It
206

was further ordered that the petitioners shall remain under the custody of the PC-CIS pending
resolution of the case.
Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition
remained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen.
Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on
the basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made
representations that the tenor of the court order warranted maintenance of the status quo, i.e.,
they were to continue their hospital confinement. However, Brig, Gen. Dumlao informed them
that unless otherwise restrained by the court, they would proceed with their transfer pursuant to
the order of the trial court.
Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order,
effective immediately and continuing until further orders from this Court, ordering: (a)
respondent Hon. William L. Layague to refrain from further proceeding with petitioners' "Motion
for Hospital Confinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v.
Leopoldo Veroy and Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain
from transferring petitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).
On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail
(Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a Supplemental
Petition on November 7, 1990 (Rollo, P. 105) and a Second Supplemental Petition on November
16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 2,
1990 denying their petition for bail.
Acting on the Supplemental Petition filed by Petitioners and taking into consideration several
factors such as: a) that the possibility that they will flee or evade the processes of the court is
fairly remote; b) their poor medical condition; and c) the matters in their Second Supplemental
Petition especially since the prosecution's evidence refers to constructive possession of the
disputed firearms in Davao City through the two (2) caretakers while petitioners lived in Manila
since 1988, this Court, on November 20, 1990, granted petitioners' provisional liberty and set the
bail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount
on November 23, 1990 (Rollo, pp. 143-145).
The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their
Comment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while, petitioners
filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269).
As submitted by the respondents, and accepted by petitioners, the petition for mandamus to
compel respondent Judge to resolve petitioners' Motion for Bail, and the petition for certiorari to
review the order of respondent judge initially denying their Motion for Hospital Confinement,
were rendered moot and academic by the resolutions of this Court dated November 20, 1990 and
October 25, 1990, respectively. What remains to be resolved is the petition for prohibition where
petitioners raised the following issues:
1. Presidential Decree No. 1866, or at least the third paragraph of Section 1
thereof, is unconstitutional for being violative of the due process and equal
protection clauses of the Constitution;
2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;
3. Assuming the validity of Presidential Decree No. 1866 the respondent judge
gravely abused his discretion in admitting in evidence certain articles which were
clearly inadmissible for being violative of the prohibition against unreasonable
searches and seizures.
207

The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case
of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held
that the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential
Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide
a possibility of a double jeopardy.
Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No.
1866 is bereft of merit. It is a cardinal rule of statutory construction that where the words and
phrases of a statute are not obscure or ambiguous. its meaning and the intention of the
legislature must be determined from the language employed, and where there is no ambiguity in
the words, there is no room for construction (Provincial Board of Cebu v. Presiding Judge of
Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the
aforementioned laws would reveal that the legislature provided for two (2) distinct offenses: (1)
illegal possession of firearms under Presidential Decree No. 1866; and (2) rebellion, coup d' etat,
sedition and disloyalty under Republic Act 6968; evidently involving different subjects which
were not clearly shown to have eliminated the others.
But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or
vague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of various
interpretations such that there is no definiteness as to whether or not the definition includes
"constructive possession" or how the concept of constructive possession should be applied.
Petitioners were not found in actual possession of the firearm and ammunitions. They were in
Quezon City while the prohibited articles were found in Davao City. Yet they were being charged
under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the
items were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244).
Otherwise stated, other than their ownership of the house in Skyline Village, there was no other
evidence whatsoever that herein petitioners possessed or had in their control the items seized
(Ibid., pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or
to further rebellion (Ibid., P. 252).
In a similar case, the revolver in question was found in appellant's store and the question arouse
whether he had possession or custody of it within the meaning of the law.
This Court held that:
The animus possidendi must be proved in opium cases where the prohibited drug
was found on the premises of the accused and the same rule is applicable to the
possession of firearms. The appellant denied all knowledge of the existence of the
revolver, and the Government's principal witness stated that there were a number
of employees in the store. The only testimony which tends to show that the
appellant had the possession or custody of this revolver is the inference drawn
from the fact that it was found in his store, but we think that this inference is
overcome by the positive testimony of the appellant, when considered with the fact
that there were a number of employees in the store, who, of course, could have
placed the revolver in the secret place where it was found without the knowledge
of the appellant. At least there is a very serious doubt whether he knew of the
existence of this revolver. In such case the doubt must be resolved in favor of the
appellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916])
But more importantly, petitioners question the admissibility in evidence of the articles seized in
violation of their constitutional right against unreasonable search and seizure.
Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy
to break open the door of their residence, it was merely for the purpose of ascertaining thereat
208

the presence of the alleged "rebel" soldiers. The permission did not include any authority to
conduct a room to room search once inside the house. The items taken were, therefore, products
of an illegal search, violative of their constitutional rights As such, they are inadmissible in
evidence against them.
The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987
Constitution). However, the rule that searches and seizures must be supported by a valid
warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search
incidental to an arrest; (2) a search of a moving vehicle; and (3) seizure of evidence in plain view
(People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]).
None of these exceptions pertains to the case at bar. The reason for searching the house of
herein petitioners is that it was reportedly being used as a hideout and recruitment center for
rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house
because he did not have a search warrant and the owners were not present. This shows that he
himself recognized the need for a search warrant, hence, he did not persist in entering the house
but rather contacted the Veroys to seek permission to enter the same. Permission was indeed
granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel
soldiers. Under the circumstances it is undeniable that the police officers had ample time to
procure a search warrant but did not.
In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v. Aminnudin,
G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987
[151 SCRA 279]), warrantless searches were declared illegal because the officials conducting the
search had every opportunity to secure a search Warrant. The objects seized, being products of
illegal searches, were inadmissible in evidence in the criminal actions subsequently instituted
against the accused-appellants (People v. Cendana, G.R. No. 84715, October 17, 1990 [190
SCRA 538]).
Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not
follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala
prohibita but the subjects of this kind of offense may not be summarily seized simply because
they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and
no exception being applicable, the articles seized were confiscated illegally and are therefore
protected by the exclusionary principle. They cannot be used as evidence against the petitioners
in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145
SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala
prohibita, while there is no need of criminal intent, there must be knowledge that the same
existed. Without the knowledge or voluntariness there is no crime.
PREMISES CONSIDERED, the petition as granted and the criminal case against the petitioners
for illegal possession of firearms is DISMISSED.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr., Romero and Bellosillo, JJ., concur.
Nocon, J., is on leave.

209

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 109633 July 20, 1994
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.
The Solicitor General for plaintiff-appellee.
Topacio and Topacio for accused-appellants.

MELO, J.:
Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth
Judicial Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in
Criminal Case No. 236-91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91,
under two informations reading, respectively, as follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without legal authority, did, then and there, willfully, unlawfully,
feloniously and knowingly have in his possession and control a homemade
(paltik)caliber .22 revolver with three (3) live ammunition.
Contrary to law.
Criminal Case No. 237-91
That on or about September 4, 1991, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without legal authority, did, then and there, willfully, unlawfully,
feloniously and knowingly sell to a poseur buyer an aluminum foil containing
Methamphetamine Hydrochloride also known as "Shabu", a regulated drug.
Contrary to law.
(pp. 20-21, Rollo.)
Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of
the two cases, the court a quo rendered a decision, the dispositive portion of which reads:
210

WHEREFORE, in view of the foregoing, the Court finds the accused Normando del
Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he
is hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for
Violation of P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day
of reclusion temporal, as minimum to Twenty (20) years of reclusion temporal, as
maximum and in Crim. Case No. 237-91 for a violation of Section 15, Article III of
Republic Act 6425, as amended of life imprisonment and to pay a fine of
P30,000.00, without subsidiary imprisonment in case of insolvency and to pay the
costs in both cases.
The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered
confiscated in favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been interposed.
The prosecution's version of the case, as set forth in appellee's brief, is as follows:
Upon application of SPO3 Raymundo Untiveros of the Philippine National Police
(PNP) of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the
morning of September 4, 1991 a search warrant
(Exh. T, p. 50, Rec. Crim. Case No. 237-91) authorizing the search and seizure
of an "undetermined quantity of Methamphetamine Hydrochloride commonly
known as shabu and its paraphernalias" in the premises of appellant's house
located at 828 R. Basa St., San Roque, Cavite City. However, the search warrant
was not implemented immediately due to the lack of police personnel to form the
raiding team (pp. 4, 7, tsn., Feb. 4, 1992).
At about 9 o'clock in the evening of that day, a raiding team was finally organized.
SPO3 Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1
Eduardo Novero, SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio
and SPO2 Villegas as members
(pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the police station, it was agreed upon
that PO1 Venerando Luna will buy shabu from appellant and after his return from
appellant's house, the raiding team will implement the search warrant (p. 10, tsn.,
Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money consisting of a
P100 bill bearing serial no. PQ 329406
(Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and
entered in the police logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion
proceeded to appellant's house to implement the search warrant. Barangay Capt.
Maigue, Norma del Rosario and appellant witnessed the search at appellant's
house (p. 10, tsn., Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a
black canister containing shabu, an aluminum foil, a paltik .22 caliber (Exh. O)
atop the TV set, three used ammunitions in a cup and three wallets (Exhs. Q, R,
S), one containing the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992).
SPO1 Novero found inside a show box aluminum foils, napkins and a burner (p. 9,
tsn., March 11, 1992). SPO3 de la Cruz turned over the wallet containing the
marked money to PO3 Onrubio (p. 8, 32, tsn., Jan. 7, 1992). The seized items
were photographed thereat by Fred Agana and then turned over to PO3 Onrubio
(pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts (Exhs. V, V-1, pp.
53-54, Rec.) for the seized items with Barangay Capt. Maigue and appellant's
211

sister Norma as signing witnesses. He also made a return (Exh. U, p. 52, Rec.) of
the seized items to the court (pp. 11-155, tsn., Feb. 18, 1992.).
At police station, the seized items were taped and initialed by SPO3 de la Cruz (p.
33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco,
forwarded to NBI Forensic Chemist Mary Ann Aranas for laboratory analysis the
aluminum foil (Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu bought by
PO1 Luna from appellant in the
buy-bust operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.)
containing suspected marijuana which were confiscated by virtue of the search
warrant.
The findings of NBI Forensic Chemist Aranas disclosed that all the specimen
submitted to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave
positive results for Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991;
Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).
(pp. 102-105, Rollo.)
Carefully evaluating the evidence on record, we believe that the prosecution has failed to prove
the guilt of accused-appellant. Much is to be desired in the manner the police authorities effected
the arrest of accused-appellant and the same observation may be made with regard to the way
the prosecution conducted its case.
Foremost among the inadequacies of the prosecution is its failure to call to the witness stand
PO1 Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to
establish the purported sale of shabu by accused-appellant to Venerando Luna, the supposed
poseur-buyer. The omission to present the poseur-buyer casts serious doubts that an illegal sale
of a dangerous drug actually took place.
The trial court gave much weight to the testimonies of the police members of the
buy-bust operation. However, the prosecution did not present as witness the
supposed poseur-buyer. Such omission casts serious doubt on appellant's guilt
because without the testimony of the
poseur-buyer, there is no convincing evidence to show that appellant sold
marijuana. The testimonies of the rest of the buy-bust operation are hearsay in
view of the fact that the poseur-buyer, was never presented at the trial. There was
even no testimony that when the accused-appellant handed the stuff to the
poseur-buyer that the latter in turn handed the marked money. The failure of the
prosecution to present the alleged buyer of the marijuana was a fatal flaw in the
case against the accused.
(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])
The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged
Poseur-buyer, bought shabu from accused-appellant was derived solely from what Luna
supposedly told him (pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay
evidence, without any evidentiary weight whatsoever. Likewise, the statements of prosecution
witnesses Policemen Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to
the alleged sale of shabu are hearsay, without weight, as all of them were not present during the
alleged sale.
According to the version of the prosecution, during the alleged buy-bust operation, accused-
appellant handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and
Luna in turn paid accused-appellant a marked P100 bill and then returned to the police station
212

and informed the raiding team that he had already bought the shabu from accused-appellant.
Thereupon, the raiding team proceeded to the house of accused-appellant to implement the
search warrant. The version of the prosecution is highly incredible. The record is devoid of any
reason why the police officers did not make any attempt to arrest accused-appellant at the time
he allegedly sold the shabu to Veneracion Luna who was accompanied by another police officer.
That was the opportune moment to arrest accused-appellant. The version foisted by the
prosecution upon this Court is contrary to human experience in the ordinary course of human
conduct. The usual procedure in a buy-bust operation is for the police officers to arrest the
pusher of drugs at the very moment he hands over the dangerous drug to the poseur-buyer. That
is the very reason why such a police operation is called a "buy-bust" operation. The police
poseur-buyer "buys" dangerous drugs from the pusher and "busts" (arrests) him the moment the
pusher hands over the drug to the police officer.
We thus entertain serious doubts that the shabu contained in a small canister was actually
seized or confiscated at the residence of accused-appellant. In consequence, the manner the
police officers conducted the subsequent and much-delayed search is highly irregular. Upon
bargaining into the residence of accused-appellant, the police officers found him lying down and
they immediately arrested and detained him in the living room while they searched the other
parts of the house. Although they fetched two persons to witness the search, the witnesses were
called in only after the policemen had already entered accused-appellant's residence (pp. 22-23,
tsn, December 11, 1991), and, therefore, the policemen had more than ample time to plant the
shabu. Corollary to the constitutional precept that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is proved (Sec. 14(2), Article III, Constitution of the
Republic of the Philippines) is the rule that in order to convict an accused the circumstances of
the case must exclude all and each and every hypothesis consistent with his innocence (People
vs. Tanchoco; 76 Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara,
144 SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that accused-
appellant is innocent.
At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a
canister and allegedly seized at his house, for the charge against him was for selling shabu with
the information alleging that the "accused, without legal authority did . . . sell to a poseur buyer
an aluminum foil containing Methamphetamine Hydrochloride . . ." Sale is totally different from
possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the
contracting parties obligates himself to transfer the ownership of and to deliver a determine
thing, and the other to pay therefor a price certain in money or its equivalent", while "possession
is the holding of a thing or the enjoyment of a right" as defined by Article 523 of the Civil Code.
Accused-appellant cannot be convicted of a crime which is not charged in the information for to
do so would deny him the due process of law (People vs. Despavellador, 1 SCRA 205 [1961];
People vs. Mori, 55 SCRA 382 [1974]).
Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The
search warrant implemented by the raiding party authorized only the search and seizure of ". . .
the described quantity of Methamphetamine Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was authorized to seize
only shabu and paraphernalia for the use thereof and no other. A search warrant is not a
sweeping authority empowering a raiding party to undertake a finishing expedition to seize and
confiscate any and all kinds of evidence or articles relating to a crime. The Constitution itself
(Section 2, Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that the
search warrant must particularly describe the things to be seized. Thus, the search warrant was
no authority for the police officers to seize the firearm which was not mentioned, much less
described with particularity, in the search warrant. Neither may it be maintained that the gun
was seized in the course of an arrest, for as earlier observed, accused-appellant's arrest was far
from regular and legal. Said firearm, having been illegally seized, the same is not admissible in
evidence (Stonehill vs. Diokno, 20 SCRA 383 [1967]). The Constitution expressly ordains the
exclusion in evidence of illegally seized articles.
213

Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
(Section 3[2], Article III, Constitution of the Republic of the Philippines).
With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of
evidence to support the charge of illegal possession of firearm, against accused-appellant.
The same may be said of the charge of illegal possession of ammunition.
WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.
The immediate release of accused-appellant is hereby ordered unless there exists a pending valid
cause against him.
The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in
favor of the government.
SO ORDERED.
Feliciano, Bidin, Romero and Vitug, JJ., concur.


Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION



G.R. No. 89373. March 9, 1993.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. YOLANDA GESMUNDO, accused-
appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo M. Alcantara for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; IRRECONCILABLE CONTRADICTIONS IN TESTIMONIES OF
PROSECUTION WITNESSES CAST DOUBT ON GUILT OF ACCUSED. Irreconcilable and
unexplained contradictions in the testimonies of the prosecution witnesses cast doubt on the
guilt of appellant and his culpability to the crime charged. (People of the Philippines vs. Romeo F.
Remorosa)
214

2. ID.; CRIMINAL PROCEDURE; SEARCH WARRANT; SEARCH MADE WITHOUT THE
PRESENCE OF OCCUPANT, HIGHLY IRREGULAR; CASE AT BAR. The claim of the accused-
appellant that the marijuana was planted is strengthened by the manner in which the search
was conducted by the police authorities. The accused-appellant was seated at the sala together
with Sgt. Yte when they heard someone in the kitchen uttered "ito na." Apparently, the search of
the accused-appellant's house was conducted in violation of Section 7, Rule 126 of the Rules of
Court which specifically provides that no search of a house, room or any other premise shall be
made except in the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing
in the same locality. This requirement is mandatory to ensure regularity in the execution of the
search warrant. Violation of said rule is in fact punishable under Article 130 of the Revised Penal
Code.
3. ID.; ID.; ID.; ID.; VIOLATIVE OF THE SPIRIT AND LETTER OF THE LAW. As we have ruled
in Eduardo Quintero vs. The National Bureau of Investigation, et al. a procedure, wherein
members of a raiding party can roam around the raided premises unaccompanied by any
witness, as the only witnesses available as prescribed by law are made to witness a search
conducted by the other members of the raiding party in another part of the house, is violative of
both the spirit and the letter of the law.
4. ID.; EVIDENCE; ADMISSION; OBTAINED IN VIOLATION OF RIGHTS OF THE ACCUSED,
INADMISSIBLE. It is true that the police were able to get an admission from the accused-
appellant that marijuana was found in her possession but said admission embodied in a
document entitled "PAGPAPATUNAY" previously prepared by the police, is inadmissible in
evidence against the accused-appellant for having been obtained in violation of her rights as a
person under custodial investigation for the commission of an offense. The records show that the
accused-appellant was not informed of her right not to sign the document; neither was she
informed of her right to the assistance of counsel and the fact that the document may be used as
evidence against her.
5. ID.; CRIMINAL PROCEDURE; SEARCH; PROPERTY SEIZED MUST BE DELIVERED TO THE
JUDGE WHO ISSUED THE WARRANT. Not only does the law require the presence of
witnesses when the search is conducted, but it also imposes upon the person making the search
the duty to issue a detailed receipt for the property seized. He is likewise required to deliver the
property seized to the judge who issued the warrant, together with a true and accurate inventory
thereof duly verified under oath. Again, these duties are mandatory and are required to preclude
substitution of the items seized by interested parties.
6. ID.; ID.; ID.; ID.; EXCEPTION. The trial judge cites the case of Yee Sue Koy, et al. vs.
Mariano Almeda, et al. (70 Phil. 141) to justify the retention by the police and the NBI of the
custody of the allegedly confiscated specimens. While in said decision, this Court recognized the
fact that the objects seized were retained by the agents of the Anti-Usury Board, instead of being
turned over to the Justice of the Peace of Sagay, yet the Court also held that it was "for the
reason that the custody of said agents is the custody of the issuing officer or court, the retention
having been approved by the latter." Thus, approval by the court which issued the search
warrant is necessary for the retention of the property seized by the police officers; and only then
will their custody be considered custody of the court. Absent such approval, the police officers
have authority to retain possession of the marijuana and more so, to deliver the property to
another agency, like the NBI.
D E C I S I O N
PADILLA, J p:
215

Appeal from the decision of the Regional Trial Court (RTC) of San Pablo City, Branch 30, * in
Criminal Case No. 4358-SP imposing the penalty of reclusion perpetua on the accused-appellant
for violation of Section 4, Article II of Republic Act No. 6425 (Dangerous Drugs Act of 1972), as
amended; sentencing her to pay a fine of Twenty-Five Thousand (P25,000.00) pesos with
subsidiary imprisonment in case of insolvency and to pay the costs.
In the Information filed by Second Assistant City Fiscal Rogelio B. Javier of San Pablo City, it was
alleged:
"That on or about November 17, 1986, in the City of San Pablo, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the accused above-named, did then and there
wilfully, unlawfully and feloniously distribute and sell marijuana and confiscated in her
possession is a plastic bag containing 100 grams of dried marijuana leaves and three (3) rolls of
magazine newspaper containing marijuana, a dangerous drug, without being authorized by law.
CONTRARY TO LAW.
City of San Pablo, November 21, 1986." 1
The facts as presented by the prosecution are stated in the decision of the trial court as follows:
" . . . in the morning of November 17, 1986, police officer Jose Luciano gave money and
instructed his civilian informer to buy marijuana from the accused at the back of the Cocoland
Hotel at Brgy. Del Remedio, San Pablo City, thereafter with another police officer, Luciano
positioned himself at the ground floor of the hotel and watched. He actually saw the accused
selling marijuana to his civilian informer by the door outside the house of the accused.
Immediately thereafter, that same day Luciano applied for a search warrant.
"At about 2:00 p.m. of that day, a raiding police team armed with Search Warrant No. 10 issued
by Hon. Judge Geronima Pueblo Atanacio of RTC, Branch XXXII of the Court, went to the
residence of the Brgy. Capt. Angel Capuno for them to be accompanied by him in serving the said
warrant at the residence of the accused located at the Cocoland Compound of said barangay.
"Upon reaching the residence of the accused, the police team were allowed entry inside the house
on the strength of the said search warrant shown to the accused. The accused cried upon
reading the contents of the warrant. She begged the team not to search and to leave her house.
But the police team insisted on their search. The accused led the team into her kitchen and she
pointed to a metal basin on top of a table as the hiding place of the dried marijuana flowering
tops contained in a plastic bag marked ISETANN. The police also recovered from a native "uway"
cabinet dried marijuana flowering tops wrapped separately in three (3) pieces of Komiks paper.
After the discovery, the accused was photographed together with the confiscated items.
Thereafter, accused was made to acknowledge in writing that the dried marijuana flowering tops
were taken from her possession and control inside her residence. Brgy. Capt. Capuno also affixed
his countersignature thereto.
"The police forthwith brought the accused to the police station where she was properly booked.
Pfc. Luciano, Pat. Rizalde Perez and Brgy. Captain Capuno executed their sworn statements.
"On November 18, 1986, Pat. Angelito Caraan was dispatched to the NBI requesting for the lab
examination of the items confiscated from the accused. On that same day, the NBI Forensic
Chemist Salud Manguba issued a Certification with a finding that per preliminary examination
which she made, the confiscated items gave positive results for marijuana (Exh. "E"). This was
confirmed later on by her with the issuance of her Report No. DDN-86-2639 (Exh. "H")." 2
Accused-Appellant's version, on the other hand, is as follows:
216

"On November 17, 1986 at around 1:00 p.m. while accused-appellant was in the terrace of their
house located at Barangay del Remedio, San Pablo City, a jeep with policemen on board arrived.
(Tsn, p 3, December 16, 1988). She identified Sgt. Yte and PFC Jose Luciano to be among the
group. Sgt. Yte was invited by accused appellant to enter the house while PFC Luciano was left in
the jeep that was parked near the house. (TSN, p 4, ibid). While seated at the sala, Sgt. Yte
was showing to accused-appellant something which he claimed to be a search warrant when
someone uttered the following words "ito na" coming from the direction where the kitchen of the
house is. She, together with Sgt. Yte proceeded to the kitchen and saw PFC Luciano holding a
plastic bag with four other companions who entered the house through the back door which was
opened at that time. (TSN, p 5, ibid). Luciano handed the bag to Sgt. Yte who, after examining
the contents, confronted the accused-appellant and insisted that the plastic bag came from her.
(TSN, p 6, ibid). She vehemently denied the accusation of Sgt. Yte and told him that she does
not know anything about it. But Sgt. Yte persisted and accused-appellant, who was then seven
(7) months on the family way, was seized by abdominal pains which made her cry. Then she was
made to sign a prepared document with her name already printed on it. Under extreme pressure
and promised that they will just talk with her at the City Hall, accused-appellant was
constrained to sign said document. Afterwards, she was brought to the police station and
detained. (TSN, pp. 7-8, ibid). That before the incident in question, Sgt. Yte asked help from
accused-appellant to testify against one Warner Marquez, son of her former landlord, for drug
pushing. Accused refused, reasoning out that it would be unfair since she is totally unaware of
this thing. But Sgt. Yte remained undaunted and was forcing her for the second time to testify
against Marquez. Spurned, Sgt. Yte left word that she, accused, should be careful as she might
be the next to be charged with drug pushing. (TSN, pp. 11-13, ibid)." 3
On 14 April 1989, the trial court rendered its decision, the dispositive portion of which reads:
"WHEREFORE, premises considered, the Court hereby renders judgment finding the accused
Yolanda Gesmundo guilty beyond reasonable doubt of the crime of violation of Section 4, Article
II, R.A. 6425, as amended without any modifying circumstance to consider, hereby sentences her
to suffer the penalty of reclusion perpetua, to pay the fine of P25,000,00, with subsidiary
imprisonment in case of insolvency and to pay the costs.
"The confiscated specimens are forfeited in favor of the government and to be disposed of in
accordance with law.
"The bail bond for her provisional liberty is hereby cancelled and the accused is hereby ordered
immediately incarcerated." 4
A notice of appeal was filed on 21 April 1989 with the Regional Trial Court which, on the same
day, ordered the elevation of the records of the case to this Court.
Assailing the Regional Trial Court's decision both on questions of law and fact, accused-appellant
assigns the following errors allegedly committed by the trial court:
"I. LOWER COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF AN ILLEGALLY
SEIZED AND OR PLANTED EVIDENCE.
II. LOWER COURT ERRED IN GIVING FAITH AND CREDENCE TO THE TESTIMONIES OF THE
WITNESSES FOR THE PROSECUTION DESPITE VARIANCE AND MATERIAL CONTRADICTIONS.
III. THE LOWER COURT ERRED IN ADMITTING PROSECUTION'S EXHIBITS "F" "F-1" AND "F-
2" IN THE ABSENCE OF COMPETENT EVIDENCE THAT THEY WERE THE ONES ALLEGEDLY
SEIZED AND RECOVERED FROM THE HOUSE OF THE ACCUSED." 5
217

The accused-appellant's conviction by the lower court is anchored on the marijuana seized in her
possession and control by virtue of a Search Warrant issued by Judge Atanacio. Her arrest did
not result from a "buy-bust" operation supposedly conducted by police officers. Although Pfc.
Luciano states that he actually saw the accused-appellant selling marijuana to his civilian
informer outside the house of the accused-appellant, she (accused) was not placed under police
custody at that very moment. Rather, the police officers decided to let her go and effect her arrest
later in the day through a search warrant, so as to apprehend her with a larger amount. 6
There is no question that a search warrant was issued by Judge Geronima P. Atanacio of the
RTC of San Pablo City, Branch 32, as declared by the Court Interpreter of said Branch (a defense
witness). 7 The accused-appellant herself also testified that Sgt. Yte showed her the search
warrant obtained by the police. 8 The controversy centers on the allegation by the accused-
appellant that the marijuana supposedly seized by the raiding police team in her possession, was
planted by the police officers.
The Investigation Report prepared by Pfc. Jose V. Luciano as Investigating Officer and which was
noted by Sgt. Bayani R. Yte as Chief of Intelligence and Investigation Division stated that:
"5. At about 171430 H November 1986, we conducted raid at said residence and premises.
During the search we discovered a hole at the backyard of the house of the suspect with a big
biscuit can inside the hole and on top of the cover a flower pot was placed wherein the marijuana
were kept. Confiscated were more or less 100 grams of dried marijuana leaves and three rolls of
magazine newspaper containing marijuana which is ready for disposal." 9
On direct examination, however, Pfc. Luciano said that the marijuana leaves contained inside the
plastic bag covered by a basin weighed about 800 grams since he himself weighed them on the
weighing scale found in the accused-appellant's house; and he also saw other marijuana
wrapped in a komiks magazine found in an uway cabinet or rattan cabinet. 10 Sgt. Bayani Yte,
on the other hand, affirmed the investigation report when he testified that during the search,
they found dried marijuana leaves, more or less 100 grams on top of the dining table, placed
inside a plastic bag and covered by a metal basin. 11 Angel Capuno, the Barangay Chairman, on
cross-examination, said that the only marijuana confiscated by the police was the one contained
in the white plastic bag. 12
In all their testimonies, there was no mention of any marijuana obtained from a flower pot placed
on top of a biscuit can inside a hole at the backyard of the accused's house as stated in the
investigation report. It would seem that the raiding party "could not put their act together", as to
how much marijuana was recovered and where. The trial court held that the fact of discovery of
the hole at the backyard was merely for the purpose of reporting the hiding place of the
marijuana. 13 But how, it may be asked, could one conclude that it was the hiding place, if no
marijuana was actually seen inside?
Moreover, during the pre-trial, Fiscal Javier requested the marking of a photograph depicting
buried marijuana on the ground for the purpose of showing the place where the dried marijuana
was recovered. 14
Not only are there inconsistencies as to what was recovered and where but also as to whom the
marijuana was supposed to have been surrendered by the accused. Pfc. Luciano pointed out
during his direct examination that it was the accused-appellant who actually gave the marijuana
leaves to Sgt. Yte in the kitchen, and that he (Pfc. Luciano) was asked by Sgt. Puhawan to come
inside the house and they saw the other marijuana leaves wrapped in a magazine located at the
uway cabinet. 15 Unfortunately, Sgt. Yte contradicted Pfc. Luciano's testimony. During his cross
examination, Sgt. Yte asserted that the marijuana leaves were surrendered by the accused-
appellant to Pfc. Luciano upon the presentation of the search warrant and before the search was
218

actually conducted. 16 When asked to explain why their inconsistent statements, Sgt. Yte merely
answered: "That was the testimony of Pat. Luciano that accused personally . . . " 17
We do not agree with the trial court in its conclusion that these discrepancies are trivial. We
must be absolutely convinced that marijuana was actually surrendered by the accused-appellant
and not planted as claimed by her. As held in People of the Philippines vs. Romeo F. Remorosa:
18
"Irreconcilable and unexplained contradictions in the testimonies of the prosecution witnesses
cast doubt on the guilt of appellant and his culpability to the crime charged."
Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened
by the manner in which the search was conducted by the police authorities. The accused-
appellant was seated at the sala together with Sgt. Yte when they heard someone in the kitchen
uttered "ito na". Apparently, the search of the accused-appellant's house was conducted in
violation of Section 7, Rule 126 of the Rules of Court which specifically provides that no search of
a house, room or any other premise shall be made except in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality. This requirement is
mandatory to ensure regularity in the execution of the search warrant. Violation of said rule is in
fact punishable under Article 130 of the Revised Penal Code. 19
As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al. 20 a
procedure, wherein members of a raiding party can roam around the raided premises
unaccompanied by any witness, as the only witnesses available as prescribed by law are made to
witness a search conducted by the other members of the raiding party in another part of the
house, is violative of both the spirit and the letter of the law.
It is true that the police were able to get an admission from the accused-appellant that
marijuana was found in her possession but said admission embodied in a document entitled
"PAGPAPATUNAY" previously prepared by the police, is inadmissible in evidence against the
accused-appellant for having been obtained in violation of her rights as a person under custodial
investigation for the commission of an offense. 21 The records show that the accused-appellant
was not informed of her right not to sign the document; neither was she informed of her right to
the assistance of counsel and the fact that the document may be used as evidence against her.
22
The accused-appellant also contends that the prosecution failed to present evidence to prove that
the marijuana marked as exhibit in court are the same marijuana allegedly confiscated by the
police from her. The contention is well taken.
Not only does the law require the presence of witnesses when the search is conducted. but it also
imposes upon the person making the search the duty to issue a detailed receipt for the property
seized. 23 He is likewise required to deliver the property seized to the judge who issued the
warrant, together with a true and accurate inventory thereof duly verified under oath. 24 Again,
these duties are mandatory and are required to preclude substitution of the items seized by
interested parties.
The police authorities in the case at bar testified that they submitted an inventory to the court
without the marijuana, the latter having been turned over to the National Bureau of Investigation
(NBI). Whether an inventory was actually made by the police was not clearly established in the
trial court. The records show that an inventory was not part of the documents transmitted from
Branch 32 (the warrant issuing branch) to Branch 30 (the trial branch) of the RTC of San Pablo
City. And when asked by the trial judge, the court Interpreter said that Judge Atanacio (who
issued the warrant) confirmed that she does not have among her files the inventory supposedly
219

submitted by the police. 25 If indeed an inventory of the seized items was made, it must be part
of the records of the case. But this was not so.
On the issue of non-delivery of the seized marijuana to the court, the trial court held that it takes
"judicial notice of the usual practice of the San Pablo City police force of retaining possession of
confiscated specimens suspected of being marijuana by immediately forwarding them to the NBI
or to an NBI accredited physician for preliminary examination and/or laboratory examination
before filing a case with the city prosecutor's office." 26 The mere tolerance by the trial court of
such a practice does not make it right. Clearly, such practice violates the mandatory
requirements of the law and defeats the very purpose for which they were enacted. Speculations
as to the probability of tampering with the evidence cannot then be avoided.
The trial judge cites the case of Yee Sue Koy, et al. vs. Mariano Almeda, et al. (70 Phil. 141) to
justify the retention by the police and the NBI of the custody of the allegedly confiscated
specimens. While in said decision, this Court recognized the fact that the objects seized were
retained by the agents of the Anti-Usury Board, instead of being turned over to the Justice of the
Peace of Sagay, yet the Court also held that it was "for the reason that the custody of said agents
is the custody of the issuing officer or court, the retention having been approved by the latter."
27 Thus, approval by the court which issued the search warrant is necessary for the retention of
the property seized by the police officers; and only then will their custody be considered custody
of the court. Absent such approval, the police officers have no authority to retain possession of
the marijuana and more so, to deliver the property to another agency, like the NBI.
Having made no return or inventory to the warrant-issuing court, there is no proof that the
police really found marijuana in the house of the accused. Besides, Salud Manguba, the Forensic
Chemist who examined the marijuana allegedly confiscated by the police from the appellant,
asserted that when the police officer turned over said items to the NBI, there were no identifying
marks on the plastic bag. 28 How sure are we then that the marijuana submitted for
examination was the same marijuana allegedly seized from the accused-appellant?
Lastly, the prosecution in the Information averred that the accused-appellant engaged in the
distribution and sale of marijuana. And yet, as held by this Court,
" . . . In order to sustain conviction for selling prohibited drugs, the element of sale must be
unequivocally established. Also, what the law proscribes is not only the act of selling but also,
albeit not limited to, the act of delivering. The commission of the offense of illegal sale of
marijuana requires merely the consummation of the selling transaction. What is important is
that the poseur-buyer received the marijuana from the accused." 29
It is also required that the marijuana received by the poseur-buyer be presented as evidence in
court. The identity of the marijuana which constitutes the corpus delicti must be established
before the court. 30
Undisputedly, the accused-appellant was not caught in the act of selling marijuana. Sgt. Yte
himself testified during cross-examination that accused-appellant was not actually dispensing
marijuana when the search warrant was served. 31 Neither was the marijuana, object of the
supposed sale, presented in court to support the allegation of the prosecution that accused-
appellant was engaged in the sale of marijuana.
The trial court held that the possession of a considerable quantity of marijuana, coupled with the
fact that the accused-appellant is not a user of prohibited drugs, indicates an intention of the
accused-appellant to sell, distribute and deliver marijuana as held in People of the Philippines
vs. Roberto Toledo y Tejario alias "OBET ." 32
220

The reliance of the trial court on the above-mentioned case is not quite accurate. The basis of the
conviction of the accused in said case was his confession, and thus, the reiteration by the Court
of the trial court's pronouncement amounts to an obiter dictum. Moreover, a person is always
presumed innocent until proven guilty.
From a careful review of the proceedings a quo, this Court is constrained to set aside the lower
court's findings, and we hold that the guilt of the accused-appellant Yolanda Gesmundo has not
been established beyond reasonable doubt.
If the inculpatory facts and circumstances are capable of two (2) or more explanations, one of
which is consistent with the innocence of the accused and the other consistent with his guilt,
then the evidence does not fulfill the test of moral certainty and is not sufficient to support a
conviction. (People v. Parayno, 24 SCRA 3; U.S. v. Maano, 2 Phil. 718; People v. Pacana, 47 Phil.
48). 33
WHEREFORE, the appealed judgment is REVERSED, and on reasonable doubt, the appellant is
hereby ACQUITTED of the crime charged. She is ordered immediately released from detention
unless she is being held for some other legal cause or ground.
SO ORDERED.
Narvasa, C .J ., Regalado, Nocon and Campos, Jr., JJ ., concur.
Footnotes
* Hon. Ausberto B. Jaramillo, Jr., presiding Judge.
1. Original Record, p. 1.
2. Original Record, pp. 193-194.
3. Appellant's Brief, pp. 2-3.
4. Original Record, p. 199 .
5. Appellant's Brief, p. 2.
6. TSN, 12 December 1986, p. 16.
7. TSN, 30 March 1989, p. 5.
8. TSN, 6 December 1988, p. 4.
9. Exhibit A-1, Records of the RTC, List of Exhibits, p. 2.
10. TSN, 12 December 1986, p. 7.
11. TSN, 22 December 1986, pp. 5-6.
12. TSN, 11 February 1987, p. 5.
13. Original Record, p. 197.
221

14. TSN, 11 December 1986, p. 3.
15. TSN, 12 December 1986, p. 7.
16. TSN, 12 March 1987, p. 8.
17. Ibid. p. 10.
18. R. No. 81768, August 7, 1991, 200 SCRA 350.
19. Article 130, Revised Penal Code, reads as follows:
"ART. 130. Searching domicile without witnesses. The penalty of arresto mayor in its medium
and maximum periods shall be imposed upon a public officer or employee who, in cases where a
search is proper, shall search the domicile, papers or other belongings of any person, in the
absence of the latter, any member of his family, or in their default, without the presence of two
witnesses residing in the same locality."
20. G.R. No. L-35149, June 23, 1988, 162 SCRA 467.
21. Article III, Section 12(3), 1987 Constitution.
22. TSN, 6 December 1988, p. 9.
23. Section 10, Rule 126, Rules of Court.
24. Section 11, Rule 126, Rules of Court.
25. TSN, 30 March 1989, p.7.
26. Original Record, p. 198.
27. Yee Sue Koy, et al. vs. Mariano G. Almeda, et al., No. 47021, June 25, 1940, 70 Phil. 141.
28. TSN, 25 March 1987, p. 8.
29. People of the Philippines vs. Rudy Dekingco, G.R. No. 87685, September 13, 1990, 189 SCRA
512.
30. The People of the Philippines vs. Apollo Mariano y Ding-Ding, G.R. No. 86656, October 31,
1990, 191 SCRA 136.
31. TSN, 12 March 1987, p. 7.
32. G.R. No. 67609, November 22, 1985, 140 SCRA 259.
33. The People of the Philippines vs. Rogelio Ale Y Campesenio, G.R. No. 70998, October 14,
1986, 145 SCRA 50.


222

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 81567 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO
DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL,
FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG.
GEN. ALEXANDER AGUIRRE, respondents.
G.R. Nos. 84581-82 October 3, 1991
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.
G.R. Nos. 84583-84 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T.
ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL.
REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding
Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.
G.R. No. 83162 October 3, 1991
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND
DANNY RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.
G.R. No. 85727 October 3, 1991
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS
ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO:
ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro
223

Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and
P/SGT. MALTRO AROJADO,respondents.
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
The Solicitor General for the respondents.
R E S O L U T I O N

PER CURIAM:p
Before the Court are separate motions filed by the petitioners in the above-entitled petitions,
seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for
brevity) which dismissed the petitions, with the following dispositive part:
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby
ordered reduced from P60,000.00 to P10,000.00. No costs.
The Court avails of this opportunity to clarify its ruling a begins with the statement that the
decision did not rule as many misunderstood it to do that mere suspicion that one is
Communist Party or New People's Army member is a valid ground for his arrest without warrant.
Moreover, the decision merely applied long existing laws to the factual situations obtaining in the
several petitions. Among these laws are the outlawing the Communist Party of the Philippines
(CPP) similar organizations and penalizing membership therein be dealt with shortly). It is
elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the
people, it is Congress as the elected representative of the people not the Court that should
repeal, change or modify them.
In their separate motions for reconsideration, petitioners, in sum, maintain:
1. That the assailed decision, in upholding the validity of the questioned arrests
made without warrant, and in relying on the provisions of the Rules of Court,
particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests
violated the constitutional rights of the persons arrested;
2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should
be abandoned;
3. That the decision erred in considering the admissions made by the persons
arrested as to their membership in the Communist Party of the Philippines/New
People's Army, and their ownership of the unlicensed firearms, ammunitions and
subversive documents found in their possession at the time of arrest, inasmuch as
those confessions do not comply with the requirements on admissibility of
extrajudicial admissions;
224

4. That the assailed decision is based on a misappreciation of facts;
5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.
We find no merit in the motions for reconsideration.
It cannot be overlooked that these are petitions for the issuance of the writ of habeas corpus,
filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and
effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the
special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if
detention is illegal, the detainee may be ordered forthwith released.
In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court
before rendering decision dated 9 July 1990, looked into whether their questioned arrests
without warrant were made in accordance with law. For, if the arrests were made in accordance
with law, would follow that the detention resulting from such arrests also in accordance with
law.
There can be no dispute that, as a general rule, no peace officer or person has the power or
authority to arrest anyo without a warrant of arrest, except in those cases express authorized by
law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the
Rules of Court which states the grounds upon which avalid arrest, without warrant, can be
conducted.
In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said
Rule 113, which read:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to he arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrest has committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without
warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural)
was committing an offense, when arrested because Dural was arrested for being a member of the
New People's Army, an outlawed organization, where membership penalized, 7 and for
subversion which, like rebellion is, under the doctrine ofGarcia vs. Enrile, 8 a continuing offense,
thus:
The crimes of insurrection or rebellion, subversion, conspiracy or proposal to
commit such crimes, and other crimes and offenses committed in the furtherance
(sic) on the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing offenses
which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which includes armed struggle for
the overthrow of organized government, Dural did not cease to be, or became less of a subversive,
225

FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St.
Agnes Hospital. Dural was identified as one of several persons who the day before his arrest,
without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol
car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a
"sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would
have shot or would shoot other policemen anywhere as agents or representatives of organized
government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as
a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc.,
which generally end upon their commission, subversion and rebellion are anchored on
an ideological base which compels the repetition of the same acts of lawlessness and violence
until the overriding objective of overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of
his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by
actual facts that will be shown hereafter.
Viewed from another but related perspective, it may also be said, under the facts of the Umil
case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court,
which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be
arrested has just committed an offense, and second, that the arresting peace officer or private
person has personal knowledge of facts indicating that the person to be arrested is the one who
committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant,
based on "personal knowledge of facts" acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without warrant must be based
upon probable cause, which means an actual belief or reasonable grounds of suspicion 9
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of committing the offense,
is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion
therefore must be founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest. 11
These requisites were complied with in the Umil case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St.
Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was
received by their office, about a "sparrow man" (NPA member) who had been admitted to the said
hospital with a gunshot wound; that the information further disclosed that the wounded man in
the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile
patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump
along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the
wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two
(22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA member
("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed
reasonable and with cause as it was based on actual facts and supported by circumstances
sufficient to engender a belief that an NPA member was truly in the said hospital. The actual
facts supported by circumstances are: first the day before, or on 31 January 1988, two (2)
CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows"
including Dural; second a wounded person listed in the hospital records as "Ronnie Javellon"
was actually then being treated in St. Agnes Hospital for a gunshot wound; third as the
226

records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital
records were fictitious and the wounded man was in reality Rolando Dural.
In fine, the confidential information received by the arresting officers merited their immediate
attention and action and, in fact, it was found to be true. Even the petitioners in their motion for
reconsideration, 13 believe that the confidential information of the arresting officers to the effect
that Dural was then being treated in St. Agnes Hospital was actually received from the attending
doctor and hospital management in compliance with the directives of the law, 14 and, therefore,
came from reliable sources.
As to the condition that "probable cause" must also be coupled with acts done in good faith by
the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are
deemed to have conducted the same in good faith, considering that law enforcers are presumed
to regularly perform their official duties. The records show that the arresting officers did not
appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest,
without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and
(b) of Section 5, Rule 113.
Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant,
an information charging double murder with assault against agents of persons in authority was
filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He
was thus promptly placed under judicial custody (as distinguished fro custody of the arresting
officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion
perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon
Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant,
are also justified. They were searched pursuant to search warrants issued by a court of law and
were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were,
therefore, caught in flagrante delicto which justified their outright arrests without warrant, under
Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs
after their arrests without warrant, informations were filed in court against said petitioners,
thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted
his own petition fo habeas corpus by announcing to this Court during the hearing of these
petitions that he had chosen to remain in detention in the custody of the authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:
1. On 27 June 1988, the military agents received information imparted by a
former NPA about the operations of the CPP and NPA in Metro Manila and that a
certain house occupied by one Renato Constantine, located in the Villaluz
Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used
as their safehouse; that in view of this information, the said house was placed
under military surveillance and on 12 August 1988, pursuant to a search warrant
duly issued by court, a search of the house was conducted; that when Renato
Constantine was then confronted he could not produce any permit to possess the
firearms, ammunitions, radio and other communications equipment, and he
admitted that he was a ranking member of the CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato
Constantino in the evening of 12 August 1988, and admitted that he was an NPA
courier and he had with him letters to Renato Constantine and other members of
the rebel group.
227

3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest
of Buenaobra who had in his possession papers leading to the whereabouts of
Roque; 17 that, at the time of her arrest, the military agents found subversive
documents and live ammunitions, and she admitted then that the documents
belonged to her.18
4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without
warrant on 13 August 1988, when they arrived at the said house of Renato
Constantine in the evening of said date; that when the agents frisked them,
subversive documents, and loaded guns were found in the latter's possession but
failing to show a permit to possess them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when she
arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who
was believed to be the head of the CPP/NPA, and whose house was subject of a
search warrant duly issued by the court. At the time of her arrest without warrant
the agents of the PC-Intelligence and Investigation found ammunitions and
subversive documents in the car of Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the
reason which compelled the military agents to make the arrests without warrant was the
information given to the military authorities that two (2) safehouses (one occupied by Renato
Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their
operations, with information as to their exact location and the names of Renato Constantine and
Benito Tiamzon as residents or occupants thereof.
And at the time of the actual arrests, the following circumstances surrounded said arrests (of
Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that
the information they had received was true and the persons to be arrested were probably guilty
of the commission of certain crimes: first: search warrant was duly issued to effect the search of
the Constantine safehouse; second: found in the safehouse was a person named Renato
Constantine, who admitted that he was a ranking member of the CPP, and found in his
possession were unlicensed firearms and communications equipment; third: at the time of their
arrests, in their possession were unlicensed firearms, ammunitions and/or subversive
documents, and they admitted ownership thereof as well as their membership in the CPP/NPA.
And then, shortly after their arrests, they were positively identified by their former comrades in
the organization as CPP/NPA members. In view of these circumstances, the corresponding
informations were filed in court against said arrested persons. The records also show that, as in
the case of Dural, the arrests without warrant made by the military agents in the Constantino
safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or
irregularly performed.
With all these facts and circumstances existing before, during and after the arrest of the afore-
named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can
say that it would have been better for the military agents not to have acted at all and made any
arrest. That would have been an unpardonable neglect of official duty and a cause for
disciplinary action against the peace officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the
hands of executive and judicial authorities upon whom devolves the duty to investigate the acts
constituting the alleged violation of law and to prosecute and secure the punishment
therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to
arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113
are met. This rule is founded on an overwhelming public interest in peace and order in our
communities.
228

In ascertaining whether the arrest without warrant is conducted in accordance with the
conditions set forth in Section 5, Rule 113, this Court determines not whether the persons
arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence
of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the
performance of their duties and in the interest of public order, to conduct an arrest without
warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under
the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the
arrested persons are later found to be innocent and acquitted, the arresting officers are not
liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be
held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil
Code 26 and/or for other administrative sanctions.
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of
the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November
1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke
at a gathering of drivers and sympathizers, where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis
supplied)
and that the police authorities were present during the press conference held at the National
Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney
and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for
subversion or any "continuing offense," but for uttering the above-quoted language which, in the
perception of the arresting officers, was inciting to sedition.
Many persons may differ as to the validity of such perception and regard the language as falling
within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to
insist, during the pre-trial or trial on the merits, that he was just exercising his right to free
speech regardless of the charged atmosphere in which it was uttered. But, the authority of the
peace officers to make the arrest, without warrant, at the time the words were uttered, or soon
thereafter, is still another thing. In the balancing of authority and freedom, which obviously
becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but
only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail
for Espiritu's release to be reduced from P60,000.00 to P10,000.00.
Let it also be noted that supervening events have made the Espiritu case moot and academic. For
Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did
not appear. Because of this development, the defense asked the court a quo at the resumption of
the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been
provisionally dismissed and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988,
Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at
about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the
said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during
the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents
arrested Nazareno, without warrant, for investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section
5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know
that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be
229

made promptly, even without warrant, (after the police were alerted) and despite the lapse of
fourteen (14) days to prevent possible flight.
As shown in the decision under consideration, this Court, in upholding the arrest without
warrant of Nazareno noted several facts and events surrounding his arrest and detention, as
follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an
information charging Narciso Nazareno, Ramil Regala and two (2) others, with the
killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro
Manila. The case is dock eted therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion
was denied by the trial court in an order dated 10 January 1989, even as the
motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted
by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ
of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of
Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January
1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of
the Regional Trial Court of Bian, Laguna issued a resolution denying the petition
for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of
the respondents by reason of an information filed against him with the Regional
Trial Court of Makati, Metro Manila which liad taken cognizance of said case and
had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably
because of the strength of the evidence against him).
This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding
informations against them were filed in court. The arrests of Espiritu and Nazareno were based
on probable cause and supported by factual circumstances. They complied with conditions set
forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since been convicted by the court a
quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction
to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).
Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for
admissibility of an extrajudicial admission.
In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On
the other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms,
ammunition and subversive documents found in her possession during her arrest, belonged to
her.
The Court, it is true, took into account the admissions of the arrested persons of their
membership in the CPP/NPA, as well as their ownership of the unlicensed firearms,
ammunitions and documents in their possession. But again, these admissions, as revealed by
the records, strengthen the Court's perception that truly the grounds upon which the arresting
officers based their arrests without warrant, are supported by probable cause, i.e. that the
persons arrested were probably guilty of the commission of certain offenses, in compliance with
Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to
230

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

Separate Opinions

FERNAN, C.J., concurring and dissenting:
After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive
evaluation of the motions for reconsideration of the said decision, I am inclined to agree with the,
majority's resolution on said motions for reconsideration except for the legality of the warrantless
arrests of petitioner Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo
Nazareno for the crime of murder.
In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any
'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang
sa magkagulo na." Apparently, such statement was, in the perception of the arresting officers,
inciting to sedition. While not conceding the validity of such perception, realizing that it is indeed
231

possible that Espiritu was merely exercising his right to free speech, the resolution nonetheless
supports the authority of peace officers "only for purposes of the arrest."
I find this position to be adverse to the very essence of the resolution which sanctions
warrantless arrests provided they are made in accordance with law. In the first place, Espiritu
mav not be considered as having "just committed" the crime charged. He allegedly first uttered
seditious remarks at the National Press Club in the afternoon of November 12, 1988. The second
allegedly seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon
(Decision, pp. 23-24). Under these circumstances, the law enforcement agents had time, short
though it might seem, to secure a warrant for his arrest. Espiritu's apprehension may not
therefore be considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests
"when an offense has in fact just been committed."
The same observation applies with greater force in the case of Nazareno who was arrested 14
days after the commission of the crime imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what
particular provision of law had beeri violated by the person arrested. True it is that law
en.orcement agents and even prosecutors are not all adept at the However, errneous perception,
not to mention ineptitude among their ranks, especially if it would result in the violation of any
right of a person, may not be tolerated. That the arrested person has the "right to insist during
the pre-trial or trial on the merits" (Resolution., p. 18) that he was exercising a right which the
arresting officer considered as contrary to law, is beside the point. No person should be subjected
to the ordeal of a trial just because the law enforcers wrongly perceived his action.
Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested
without a warrant duly issued by the proper authority. By its nature, a single act of urging
others to commit any of the acts enumerated in Article 142 of the Revised Penal Code may suffice
to hold anyone liable for inciting to sedition. While the crime is aimed at anarchy and radicalism
and presents largely a question of policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be
remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental
freedoms of speech and expression. There arises, therefore, the necessity of balancing interests;
those of the State as against those of its individual citizen. Here lies the urgency of judicial
intervention before an arrest is made. Added to this is the subjectivity of the determination of
what may incite other people to sedition. Hence, while the police should act swiftly when a
seditious statement has been uttered in view of the jeopardy it may cause the government,
speedy action should consist not in warrantless arrests but in securing warrants for such
arrests.
On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be
underscored that anyone who undertakes such arrest must see to it that the alleged violator
is knowing member of a subversive organization as distinguished from a nominal one (People vs.
Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even
if has not committed overt act of overthrowing the government such as bombing of government
offices trie assassination of government officials provided there is probable cause to believe that
he is in the roll of members of a subversive organization. It devolves upon the accused to prove
membership by force or ciorcion. Certainly, one may not be in such a roll without undergoing the
concious act of enlistment.
It bears repeating theat warrantless arrests are governed by law and subject to stringent
application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense
"has in fact just been committed. "connotes immediacy in point of time and excludes cases under
the old rule where an offense 'has in fact been committed' no how long ago. Similarly, the arrestor
must have 'personal knowledge of the facts indicating that the [arrestee] has committed it'
(instead of just 'reasonable ground believe that the [arrestee] has committed it' under the old
232

rule)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349,
408).
I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without
warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court
considered as illegal the warrantless arrest of a subversive not based on the arresting officer's
personal knowledge such subversion and held that any rule on arrests witho warrants must be
strictly construed. We categorically state therein that warrantless arrests should "clearly fall
within the situations when securing a warrant be absurd or is manifestly unnecessary was
provided by the Rules" (144 SCRA at 14). Moreover. "it is not enough that there is reasonable
ground to believe that the person to be arrested has committed a crime. A crime must in fact or
actually (has just) been committed first. That crime has actually been committed is an essential
precondition. It is not enough to suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator. (Supra, at p. 15).
Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid
out the procedure to be observed the moment a person is arrested:
At the time a person is arrested, it shall be the duty of the arresting officer to
imform him of the reason for the arrest and he must be shown the warrant of
arrest, if any. He shall be informed of his constitutional rights to remain silent and
to counsel, and that any statement he might make could be used against him. The
person shall have the right to communicate with his lawyer, a relative, or anyone
he chooses by the most expedient means by telephone if possible or by letter
or messenger. It shall be the responsibility of the arresting officer to see to it that
this is accomplished. No custodial investigation shall be conducted unless it be in
the presence of counsel engaged by the person arressted, by any person on his
behalf, or appointed by the court upon petition on his behalf, or appointed the
court upon the petition either of the detainee himself or by anyone on his behalf.
The right to counsel may be waived but the waiver shall not be valid unless made
with the assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole or in
part shall be inadmissible evidence. (121 SCRA at 554).
These judicial pronouncements must be observed by everyone concerned: the military and
civilian components of the government tasked with law enforcement as well as the ordinary
citizen who faces a situation wherein civic duty demands his intervention to preserve peace in
the community.
I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with
a political or ideological element. Such abuses are more often than not, triggered by the difficulty
in finding evidence that could stand judicial scrutiny to pinpoint a subversive, police officers
usually have to make long persistent surveillance. However, for the orderly administration of
government and the maintenance of peace and order in the country, good faith should be
reposed on the officials implementing the law. After all, we are not wanting in laws to hold any
offending peace officer liable both administratively and criminally for abuses in the performance
of their duties. Victims of abuses should resort to legal remedies to redress their grievances.
If existing laws are inadequate, the policy-determining branches of the government may be
exhorted peacefully by the citizenry to effect positive changes. This Court, mandated b the
Constitution to uphold the law, can only go as far as inter pruting existing laws and the spirit
behind them. Otherwise, we hail be entering the dangerous ground of judicial legislation.
GUTIERREZ, JR., J., concurring and dissenting:
233

The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is
disturbing whenever the Court leans in the direction of order instead of liberty in har cases
coming before us.
People all over the world are fast accepting the theory that only as a society encourages freedom
and permits dissent can it have lasting security and real progress, the theory that enhancing
order through constraints on freedom is deceptive because restrictions on liberty corrode the
very values Govenment pretends to promote. I believe we should move with the people of the
world who are fast liberating themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without
warrant, to wit:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it.
xxx xxx xxx
Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt,
the tendency should be to declare the warrantless arrest illegal.
Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque,
Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the
petitioners were arrested after having been apprehended while in possession of illegal firearms
and ammunitions. They were actually committing a crime when arrested. I concur in the denial of
their motions for reconsideration.
I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was
arrested while urging jeepnev and bus drivers to join a strike of transport workers on the ground
that that was inciting to sedition.
This impresses me as Court validation of a clear infringement of an individual's freedom of
speech. "Inciting to sedition" is a term over which the most learned writers and jurists will differ
when applied to actual cases. I doubt if there are more than a handful of policemen in the whole
country who would know the full dimensions of the fine distinctions which separate the nation's
interest in the liberty to fully anfd freely discuss matters of national importance on one hand and
the application of the clear and present danger rule as the test when claims of national security
and public safety are asserted, on the other. In fact, the percentage of knowledgeability would go
down further if we consider that "inciting to sedition" requires the ability to define, among other
(1) what kinds of speeches or writings fall lander the term "inciting" (2) the meaning of
rising publicly and tumultously; (3,) when does a certain effort amount to force, intimidation.
or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a
scurrilous libel against the Philippines. If we allow public speakers to be picked up simply
because what they say is irritating or obnoxious to the ears of a peace officer or critical of
government policy and action, we will undermine all pronouncements of this Court on the need
to protect that matrix of all freedoms, which is freedom of expression. At the very least, a warrant
of arrest after a preliminary examination by a Judge is essential in this type of offense.
234

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations
regarding "continuing oftenses." To base warrantless arrests on the doctrine of continuing offense
is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection,
or sedition are political offenses where the line between overt acts and simple advocacy or
adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is
found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how
anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be
picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If
warrantless searches are to be validated, it should be Congress and not this Court which should
draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or
obnoxious will be indiscriminately lumped up with those actually taking up arms against the
Government.
The belief of law enforcement authorities, no matter how well grounded on past events, that the
petitioner would probably shoot other policemen whom he may meet does not validate
warrantless arrests. I cannot understand why the authorities preferred to bide their time, await
the petitioner's surfacing from underground, and pounce on him with no legal authority instead
of securing warrants of arrest for his apprehension. The subsequent conviction of a person
arrested illegally does not the warrantless arrest.
In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that
Narciso Nazareno was one of the killers came to the attention of peace officers only on December
28, 1988 or fourteen (14) days later. To say that the offense "has in fact just been committed"
even if 14 days have lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A
warrant of arrest is essential in this case. I vote to grant the motion for reconsideration.
The subsequent conviction of a person arrested illegally does not reach back into the past and
render legal what was illegal. The violation of the constitutional right against illegal seizures is
not cured by the fact that the arrested person is indeed guilty of the offense for which he was
seized. A government of laws must abide by its own Constitution.
CONSIDERING THE FOREGOING, I VOTE TO:
(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R.
No. 83162;
(2) GRANT the motion for reconsideration in G.R. No. 85727;
(3) GRANT the motion for reconsideration in G.R. No. 86332;and
(4) GRANT the motion for reconsideration in G.R. No. 81567.
CRUZ, J., Separate Opinion:
I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who
were arrested inflagrante, or subsequently posted bail or chose to remain in the custody of the
military, or voluntarily permitted the search of the house without warrant. I do not think that
under the applicable circumstances the petitioners can validly complain that they are being
unlawfully detained.
But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile,
121 SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the
ground that they were apprehended for the continuing offenses of rebellion and other allied
crimes.
235

We find in the said decision this partltularly disturbing observation, which was quoted with
approval in the originalponencia:
The arrest of persons involved in the rebellion, whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence
of probable cause before the issuance of arrest and the granting of bail of the
offense is bailable. Obviously, the absence of a judicial warrant is no legal
impediment to arresting or capturing persons committing overt acts of violence
against govenment forces, or any other milder acts but equally in pursuance of the
rebellious movement. (Emphasis supplied.)
The treatment suggested envisions an actual state of war and is justified only when a recognition
of beuigerency is accorded by the legitimate government to the rebels, resulting in the application
of the laws of war in the regulation of their relations. The rebels are then considered alien
enemies-to be treated as prisoners of war when captured-and cannot invoke the municipal law of
the legitimate government they have disowned. It is in such a situation that the processes of the
local courts are not observed and the rebels cannot demand the protection of the Bill of Rights
that they are deemed to have renounced by their defiance of the government.
But as long as that recognition has not yet been extended, the legitimate govenment must treat
the rebels as its citizens, subject to its municipal law and entitled to all the rights provided
thereunder, including and especially those guaranteed by the Constitution. Principal among
these in our country are whose embodied in the Bill of Rights, particularly those
guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and
presuming the innocence of the accused. The legitimate government cannot excuse the
suppression of these rights by the "exigencies" of an armed conflict that at this time remains an
intemal matter governed exclusively by the laws of the Republic of the Philippines.
Treatment of the rebels as if they were foreign invaders or combatants is not justified in the
present situation as our government continues to prosecute them as violators of our own laws.
Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by
such suspicion alone made subject to summary arrest no different from the unceremonious
capture of an enemy soldier in the course of a battle. The decision itself says that the arrest
"need not follow the usual procedure in the prosecution of offenses" and "the absence of a
judicial warrant is no impediment" as long as the person arrested is suspected by the authorities
of the "continuing offense" of subversion or rebellion or other related crimes. International law is
thus substituted for municipal law in regulating the relations of the Republic with its own
citizens in a purely domestic matter.
As for the duration of the offenses, the decision contained the following pronouncement which
this Court has also adopted as its own:
. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to
commit such crimes, and other crimes and offenses committed in the furtherance
on the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature ofcontinuing
offenses which set them apart from the common offenses, aside front their
essentially involving a massive conspiracy of nationwide manitude. (Emphasis
supplied.)
236

The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by
simply placing the suspect "under surveillance," to lay the basis for his eventual apprehension.
Once so placed, he may at any time be arrested without warrant on the specious pretext that he
is in the process of committing the "continuing offense," no matter that what he may be actuallly
doing at the time is a perfectly innocent act.
In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act
of undergoing medical treatment. The fiction was indulged that he was even then, as he lay
supine in his sickbed, engaged in the continuing offense of rebellion against the State. In further
justification, the Court says that the arresting officers acted on "confidential information" that he
was in the hospital, which information "was found to be true." This is supposed to have validated
the determination of the officers that there was "probable cause" that excused the absence of a
warrant.
My own impression is that probable cause must be established precisely to justify the issuance of
a warrant, not todispense with it; moreover, probable cause must be determined by the judge
issuing the warrant, not the arresting officer who says it is not necessary.
In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly
seditious remarks made by him the day before. The Court says his case is not covered by the
Garcia-Padilla doctrine but approves the arrest just the same because the remarks were
supposed to continue their effects even to the following day. The offense was considered as
having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court)
despite the considerable time lapse.
It was worse in the case of Nazareno, who was also arrested without warrant, and no less
than fourteen days after the killing. In sustaining this act, the Court says that it was only on the
day of his arrest that he was identified as one of the probable killers, thus suggesting that the
validity of a warrantless arrest is reckoned not from the time of the commission of an offense but
from the time of the Identification of the suspect.
Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter
"has committed, is actually committing, or is attempting to commit an offense" or when an
offense "has in fact just been committed." The requirement of immediacy is obvious from the
word "just," which, according to Webster, means "a very short time ago." The arrest must be
made almost immediately or soon after these acts, not at any time after the suspicion of the
arresting officer begins, no matter how long ago the offense was committed.
I am also uneasy over the following observations in the present resolution which I hope will not
be the start of another dangerous doctrine:
The Court, it is true, took into account the admissions of the arrested persons of
their membership in the CPP/NPA, as well as their ownership of the unlicensed
firearms, ammunitions and documents in their possession. But again, these
admissions, as revealed by the records, strengthen the Court's perception that
truly the grounds upon wmch the arresting officers based their arrests without
warrant, are supported by probable cause, i.e., that the persons arrested were
probably guilty of the commission of certain offenses, in compliance with Section
5, Rule 113 of the Rules of Court.
I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt,
G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there was probable cause
may have been influenced by the subsequent discovery that the accused was carrying a
prohibited drug. This is supposed to justify the soldier's suspicion. In other words, it was the fact
237

of illegal possession that retroactively established the probable cause that validated the illegal
search and seizure. It was the fruit of the poisonous tree that washed clean the tree itself."
I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal
arrests made in the cases before us is a step back to that shameful past when individual rights
were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have
short memories of that repressive regime, but I for one am not one to forget so soon. As the
ultimate defender of the Constitution, this Court should not gloss over the abuses of those who,
out of mistaken zeal, would violate individual liberty in the dubious name of national security.
Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the
protection of the Bill of Rights, no more and no less than any other person in this country. That
is what democracy is all about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in the Resolution disposing of the Motion for
Reconsideration.
At the same time, however, I feel compelled to dissent from certain statements made by the
majority principally concerning the applicability of the "continuing crimes" doctrine to the
problem of arrests without warrants. It seems clear that these statements are really obiter dicta,
since they are quite unnecessary for sustaining the actual results reached in the majority
Resolution. This was summarily pointed out in my very brief statement concurring in the result
reached in the original Decision of the Court dated 9 July 1990. The subsequent developments in
several of the cases here consolidated, which are carefully detailed in the majority Resolution,
make this even clearer. Nonetheless, the majority Resolution has taken the time and trouble
expressly to reiterate the "continuing crimes" doctrine as applicable in respect of warrantless
arrests. Although the above statements are obiter, they have been made and, I believe, need to be
addressed to some extent and the inter-relation of the "continuing crimes" doctrine with
constitutional rights explored.
1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures
of persons. Article III Section 2 of the Constitution reads:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized. (Emphais supplied)
Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual
members of society, must, as a general rule, be preceded by the securing of a warrant of arrest,
the rendition of which complies with the constitutional procedure specified in Article III Section
2. Arrests made without a warrant issued by a judge after complying with the constitutional
procedure, are prima facie unreasonable seizures of persons within the meaning of Article III
Section 2.
2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests
are unreasonable seizures of persons. Those exceptions are, in our day, essentially found in
Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the
situations where an officer of the law, or a private person for that matter, may lawfully arrest a
person without previously securing a warrant of arrest. The full text of Section 5, Rule 113
follows:
238

Sec. 5. Arrest without warrant, when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7.
3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall
that judicial interpretation and application of Section 5(a) and (b) must take those provision for
what they are: they areexceptions to a vital constitutional norm enshrined in the Bill of Rights.
Exceptions to such a norm must be strictly construed so as not to render futile and meaningless
the constitutional rule requiring warrants of arrests before the persons of individuals may be
lawfully constrained and seized. The ordinary rule generally applicable to statutory provisions is
that exceptions to such provisions must not be stretched beyond what the language in which
they are cast fairly warrants, and all doubts should be resolved in favor of the general provision,
rather than the exception. 1 This rule must apply with special exigency and cogency where we
deal, not with an ordinary statutory provision, but with a constitutional guarantee. 2 Exceptions
to such a guarantee must be read with especial care and sensitivity and kept within the limits of
their language so to keep vital and significant the general constitutional norms warrantless
arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:
II. As the protection of the citizen and the maintenance of his constitutional rights
is one of the highest duties and privileges of the court. these constitutional
guaranties should be given a liberal construction or a strict construction in favor of
the individual, to prevent stealthy encroachment upon, or gradual depreciation of,
the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs.
McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it
is the general rule that statutes authorizing searches and seizures or search
warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard
vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So.,
613. (emphasis supplied)
held that:
. . . All illegal searches and seizures are unreasonable whith lawful ones are
reasonable. 4
In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the information
furnished by Cesar Masamlok. The location of the firearm was given by the
appellant's wife.
239

At the time of the appellant's arrest, he was not in actual possession of any
firearm or subversive document. Neither was he commit ting any act which could
be described as subversive. He was, in fact plowing his field at the time of the
arrest.
The right of a person to be secure against any unreasonable seizure of his body
and any deprivation of his liberty is a most basic and fundamental one. The
statute or rule which allows exceptions the requirement of warrants of arrest is
strictly construed. Any exception must clearly fall within the situations when
securing a warrant would be absurd or is manifestly unnecessary as provided by
the Rule. We cannot liberally construe the rule on arrests without warrant or extend
its application beyond the cases specifically provided by law. To do so would
infringe upon personal liberty and set back a basic right so often vilated and so
deserving of full protection. 6 (emphasis supplied)
4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in
the presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to
commit an offense, in the presence of the arresting officer, may be seen to be the substitute,
under the circumstances, for the securing of a warrant of arrest. In such situation, there is an
obvious need for immediate, even instantaneous, action on the part of the arresting officer to
suppress the breach of public order and to prevent further breaches then and there. Section 5(a)
may, moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of
the arresting officer. The term "presence" in this connection is properly and restrictively
construed to relate to acts taking place within the optical or perhaps auditory perception of the
arresting officer. 7 If no overt, recognizably criminal, acts occur which are perceptible through
the senses of the arresting officer, such officer could not, of course, become aware at all that a
crime is being committed or attempted to be committed in his presence. 8 It is elementary that
purely mental or psychological phenomena, not externalized in overt physical acts of a human
person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is
not enough thatmens rea be shown; there must also be an actus reus. If no such overt acts are
actually taking place in the presence or within the sensor perception of the arresting officer,
there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest.
There would, in other words, not be that imperious necessity for instant action to prevent an
attempted crime, to repress the crime being committed, or to capture the doer of the perceive
criminal act, the necessity which serves as the justification in law of warrantless arrests under
Section 5(a).
5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be
sustained under this subsection: 1) the offense must have "just been committed" when the
arresting officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts
indicating tha the person to be arrested has committed the offense. In somewhat different terms,
the first requirement imports that th effects or corpus of the offense which has just been
committed are still visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a
person staggering around bleeding profusely from stab wounds. The arresting officer may not ha
seen the actual shooting or stabbing of the victim, and thereto the offense can not be said to
have been committed "in [his] presence." The requirement of "personal knowledge" on the part of
the arresting officer is a requirement that such knowledge must have been obtained directly from
sense perception the arresting officer. That requirement would exclude informtion conveyed by
another person, no matter what his reputation for, truth and reliability might be. 9Thus, where
the arresting officer comes upon a person dead on the street and sees a person running away
with a knife from where the victim is sprawled the ground, he has personal knowledge of facts
which render it highly probable that the person fleeing was the doer of the criminal deed. The
arresting officer must, in other words, perceive through his own senses some act which directly
connects the person to be arrested with the visible effects or corpus of a crime which has "just
been committed."
240

6. The use of the words "has in fact just been committed" underscores the requirement that the
time interval between the actual commission of the crime and the arrival of the arresting officer
must be brief indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b)
by the 1985 Rules on Criminal Procedures, no doubt in order to underscore the point here being
made. In the second place, a latitudinarian view of the phrase "has in fact just been committed"
would obviously render pointless the requirement in Section 5(a) that the crime must have been
committed "[in] the presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of
Alfredo Nazareno 14-days after the occurrence of the killing with which he was charged along
with other persons, cannot by any standard be justified under Section 5(b). In G.R. No. 81567,
Dural was arrested without warrant while being treated in a hospital the day after the shooting of
the policemen in which he was suspected to have been a participant. While 1-day may be
substantially different from 14-days, still it must be pointed out that at the time Dural was
arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the
St. Agnes Hospital in Quezon City could not reasonably be said to have been just committed.
There was no showing, nor did the Court require it, that the arresting officers had been in "hot
pursuit" of Dural beginning at the scene of the killing and ending the next day in the hospital.
7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer
who is determining "probable cause" right at the scene of the crime, is in a sense more exacting
than the standard imposed by the Constitution upon the judge who, in the seclusion of his
chambers, ascertains "probable cause" by examining the evidence submitted before him. The
arresting officer must himself have "personal knowledge"; the magistrate may rely upon the
personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the
present Resolution, the majority begins with noting the requirement of "personal knowledge" in
Section 5(b), but winds up in the next page with a very diluted standard of "reasonable belief and
"good faith" on the part of the arresting officers. The stricter standard is properly applicable to
the officers seizing a person without a warrant of arrest, for they are acting in derogation of a
constitutional right. That the person unlawfully arrested without a warrant may later turn out to
be guilty of the offense he was suspected of in the first place is, course, quite beside the point.
Even a person secretly guilty some earlier crime is constitutionally entitled to be secure from
warrantless arrest, unless he has in fact committed physically observable criminal acts in the
presenceof the arresting officer or hadjust committed such acts when the arresting officer burst
upon the scene.
8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes,"
shows that doctrine is here being used as a substitute for the requirement under Section 5(a)
that the offense "has in fact just been presence of the arresting officer arrived, but rather because
the person to be arrested is suspected of having committed a crime in the future. The pertinent
portion of the majority Resolution reads:
. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF
ARREST, simply because he was, at the time of arrest, confined in the St. Agnes
Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part
of his mission as a "sparrow" (NPA member) did not end there and then. Dural,
given another opportunity, would have shot or would shoot other policemen
anywhere as agents or representatives of organized government. It is in this sense
that subversion like rebelion (or insurrection) is perceived here as a continuing
offense. Unlike other so-called "common" offenses, i.e., adultery, murder, arson,
etc., which generally end upon their
commission,subversion and rebellion are anchored on an ideological base which
compels the repetition of the same acts of lawlessness and violence until the
overriding objectives of overthrowing organized government is attained. (Emphasis
supplied)
9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found
in our case law offers no reasonable basis for such use of the dotrine. More specifically, that
241

doctrine, in my submission, does notdispence with the requirement that overt acts recognizably
criminal in character must take place in the presence of the arresting officer, or must have just
been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The
"continuing crimes" doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile 10does
not sustain warrantless arrests of person to be arrested is, as it were, merely resting in between
specific lawless and commit the moment he gets an opportunity to do so.
Our case law shows that the "continuing crimes" doctrine has been used basically in relation to
two (2) problems: the first problem is that of determination of whether or not a particular offense
was committed within the territorial jurisdiction of the trial court; the second problem is that of
determining whether a single crime or multiple crimes were committed where the defense of
double jeopardy is raised.
10. In respect of the first problem, the gist of our case law is that where some of the ingredients
or elements of an offense taken place within the territorial jurisdiction of one court and some
other ingredients or elements of the same offense occur in the territory of another court, (e.g.,
estafa or malversation) either one of the two courts has jurisdiction to try the offense. Where all
of the essential elements of a crime take place within the territory of one court but "by reason of
he very nature of the offense committed" the violation of the law is deemed to be "continuing,"
then the court within whose territorial jurisdiction the offense continues to be committed, has
jurisdiction to try a person charged with such offense. In the latter case, the offense is deemed to
be continuing because some or all of the elements constituting the offense occurred within
jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of service of
sentence). The criminal acts are regarded as repeated or as continuing within the province or city
where the defendant was found and arrested. 11 Clearly, overt acts of the accussed constituting
elements of the crime charged must be shown to have been committed within the territorial
jurisdiction of the court where he is charged.
11. Turning to the second type of problem, the question is normally presented in terms of
whether one crime or multiple crimes were committed by the accused. Where the series of acts
actually alleged and proven to have been committed by the accused constituted only one and the
same crime, the defense of double jeopardy becomes available where a second information is filed
covering acts later in the series. Upon the other hand, where the acts of the accused constituted
discrete, multiple offenses, each act comprising a distinct and separate offense, the double
jeopardy defense is non-available. 12 The point worth stressing is that in passing upon the issue
relating to the unity or multiplicity of offense committed, the overt acts of the accused
constitutive either of the single offense or of the plural offenses, must be shown.
12. My final submission, is that, the doctrine of "continuing crimes," which has its own
legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening
and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts
comprising all or some of the elements of the offense charged are shown to have been committed
by the person arrested without warrant, the "continuing crime" doctrine should not be used to
dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by
the person arrested in the presence of the arresting officer. The capacity for mischief of such a
utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged
does not consist of unambiguous criminal acts with a definite beginning and end in time and
space (such as the killing or wounding of a person or kidnapping and illegal dentention or arson)
but rather of such problematic offenses as membership in or affiliation with or becoming a
member of, a subversive association or organization. For in such cases, the overt constitutive
acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the
aims or objectives of the organization involved. Note, for instance, the following acts which
constitute prima facie evidence of "membership in any subversive association:" 13
a) Allowing himself to be listed as a member in any book or any of the lists,
records, correspondence, or any other document of the organization;
242

b) Subjecting himself to the discipline of such association or organization in any
form whatsoever;
c) Giving financial contribution to such association or organization in dues,
assessments, loans or in any other forms;
xxx xxx xxx
f) Conferring with officers or other members of such association or organization in
furtherance of any plan or enterprise thereof;
xxx xxx xxx
h) Preparing documents, pamphlets, leaflets, books, or any other type of
publication to promote the objectives and purposes of such association or
organization;
xxx xxx xxx
k) Participating in any was in the activities, planning action, objectives, or
purposes of such association or organization;
xxx xxx xxx
It may well be, as the majority implies, that the constitutional rule against warrantless arrests
and seizures makes the law enforcement work of police agencies more difficult to carry out. It is
not our Court's function, however, and the Bill of Rights was not designed, to make life easy for
police forces but rather to protect the liberties of private individuals. Our police forces must
simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities
which themselves comply with the fundamental law. Otherwise they are very likely to destroy,
whether through sheer ineptness or excess of zeal, the very freedoms which make our polity
worth protecting and saving.
REGALADO, J.: Separate Opinion:
While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such
concurrence, I wish to unburden myself of some reservations on the rationale adopted in G.R.
No. 86332.
It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December
1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days
later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that
the police authorities came to know that Nazareno was probably one of those guilty in the killing
of Bunye II."
I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while
authorizing a peace officer or a private person to effect a warrantless arrest, specifically
conditions that grant of authority upon the situation "(w)hen an offense has in fact just been
committed, and he has personal knowledge of facts indicating that the person to be arrested has
committed it."
It is significant that when the corresponding provisions of the 1964 Rules of Court were amended
in the 1985 Rules of Criminal Procedure, the particular revision of paragraph (b) of the aforesaid
section consisted in imposing the requirements that the person making the arrest has personal
243

knowledge of the facts indicating that the arrestee is responsible for an offense which has just
been committed.
Now, according to the resolution, "the records show that in the morning of 14 December 1988,
Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at
about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the
said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during
the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents
arrested Nazareno, without warrant, for investigation."
Since, clearly, the arresting police agents merely acted upon the information imparted by one of
the suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that
the person making the arrest must have had personal knowledge of factual indications regarding
the complicity or liability of the arrestee for the crime. Yet, that amendment requiring such
personal knowledge must have been designed to obviate the practice in the past of warrantless
arrests being effected on the basis of or supposed reliance upon information obtained from third
persons who merely professed such knowledge or, worse, concocted such reports for variant
reasons not necessarily founded on truth.
Further, and obviously as an added deterrent to the possibility that such arrest without a
warrant may result from imputations based on dubious motives, it is now required that the
crime must have just been committed. The recency contemplated here, in relation to the making
of the warrantless arrest, is the time when the crime was in fact committed, and not the time
when the crime was in fact committed, and not the time when the person making the arrest
learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad
absurdum, such warrantless arrests could be validly made even for a crime committed, say, more
than a year ago but of which the arresting officer received information only today.
The brevity in the interval of time between the commission of the crime and the arrest, as now
required by Section 5(b), must have been dictated by the consideration, among others, that by
reason of such recency of the criminal occurrence, the probability of the arresting officer
acquiring personal and/or reliable knowledge of such fact and the identity of the offender is
necessarily enhanced, if not assured. The longer the interval, the more attenuated are the
chances of his obtaining such verifiable knowledge. In the case under consideration, the
obtention of information of a crime committed fourteen (14) days earlier necessarily undermines
the capacity of the arresting officer to ascertain the reliability of the information he is acting
upon and to acquire personal knowledge thereof after such verification.
It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable
cause and it was not whimsical, at least, in this instance. It is correct to say that prevailing
conditions affecting national security and stability must also be taken into account. However, for
the reasons above elucidated, I take exception to the conclusion that the conditions in Section
5(b) of Rule 113 had been complied with in this case. It is true that the corresponding
information was filed against Nazareno shortly after his arrest but that, precisely, is another
cause for controversy. Definitely, if the rules on arrest are scrupulously observed, there would be
no need for the usual invocation of Ilagan as a curative balm for unwarranted incursions into
civil liberties.
SARMIENTO, J.: dissenting:
I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has
not shown why the arrests in question should after all be sustained.
According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a
warrant and that his arrest was sufficient compliance with the provisions of Section 5, paragraph
244

(b), Rule 113, of the Rules of Court. According to the majority, he, Dural, was after all committing
an offense (subversion being supposedly a continuing offense) and that the military did have
personal knowledge that he had committed it. "Personal knowledge," according to the majority, is
supposedly no more than "actual belief or reasonable grounds . . . of suspicion," and suspicion is
supposedly reasonable:
. . . when, in the absence of actual belief of the arresting officers, the suspicion
that the person to be arrested is probably guilty of committing the offense, is
based on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilty of the person to be arrested. A
reasonable suspicion therefore must be founded on probable cause, coupled with
good faith on the part of the peace officers making the arrest. 2
As I said, I dissent.
First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended
by Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt
acts." 4 In People vs. Ferrer 5 this Court defined "overt acts" as follows:
. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally
unnecessary to charge Communists in court, as the law alone, without more
would suffice to secure their punishment. But the undeniable fact is that their
guilt still has to be judicially established. The Government has yet to prove at the
trial that the accused joined the Party knowingly, willfully and by overt acts, and
that they joined the Party, knowing its subversive character and with specific
intent to further its basic objective,i.e., to overthrow the existing government by
force, deceit, and other illegal means and place the country under the control and
domination of a foreign power.
As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has
taken pains to explain, the law requires more than mere membership in a subversive
organization to make the accused liable. I respectfully submit that for purposes of arrest without
a warrant, that above "overt acts" should be visible to the eyes of the police officers (if that is
possible), otherwise the accused can not be said to be committing any offense within the
contemplation of the Rules of Court, to justify police action, and otherwise, we would have made
"subversion" to mean mere "membership" when, as Ferrer tells us, subversion means more that
mere membership.
I find strained that majority's interpretation of "personal knowledge," as the majority would
interpret it, as no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based
on actual facts . . . [and] founded on probable cause, coupled with good faith . . . " 6 I submit that
personal knowledge means exactly what it says that the peace officer is aware that the
accused has committed an offense, in this case, membership in a subversive organization with
intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules
(then Section 6) spoke of simple "reasonable ground" which would have arguably encompassed
"actual belief or suspicion . . . coupled with good faith" referred to by the majority. Section 5(b) as
amended, however, speaks of "personal knowledge"; I respectfully submit that to give to
"personal knowledge" the same meaning as "reasonable ground" is to make the amendment as
useless exercise.
What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had
been wounded and was recuperating in the hospital, and that that person was Rolando Dural.
Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not
personal knowledge.
245

I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar
arrest because of lack of personal knowledge, and, as the Court held, "[w]hatever knowledge was
possessed by the arresting officers came in its entirety from the information furnished by
[another] . . ." 8 I do not see how We can act differently here.
I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken.
Santos involved a prosecution for coercion (against a peace officer for affecting an arrest without
a warrant). Santos, however, did in fact affirm the illegality of the arrest but absolved the peace
officer on grounds of good faith. Santos did not say that so long as he, the peace officer, was
acting in good faith, as the majority here says that the military was acting in good faith, the
arrest is valid. Quite to the contrary, Santos suggested that notwithstanding good faith on the
part of the police, the arrest is nevertheless subject to question.
As far as the information leading to the arrest of Dural is concerned, the majority would quite
evidently swallow the version of the military as if in the first place, there truly was an
information, and that it was reliable, and that "it was found to be true;" 10 and as if, in the
second place, the hospital authorities (the alleged informants) could have legally tipped the
military under existing laws. We have, it should be noted, previously rejected such a species of
information because of the lack of "compulsion for [the informant] to state truthfully his charges
under pain of criminal prosecution." 11 Here, it is worse, because we do not even know who that
informant was.
The majority is apparently unaware that under Executive Order No. 212, amending Presidential
Decree No. 169, hospital establishments are required to report cases of acts of violence to
"government health authorities" not to the military.
I am concerned that if the military were truly armed with reliable information and if it did have
personal knowledge to believe that Dural had committed an offense, there was no reason for the
military to ignore the courts, to which the Constitution after all, gives the authority to issue
warrants. As People vs. Burgos held:
More important, we find no compelling reason for the haste with which the
arresting officers sought to arrest the accused. We fail to see why they failed to
first go through the process of obtaining a warrant of arrest, if indeed they had
reasonable ground to believe that the accused had truly committed a crime. There
is no showing that there was a real apprehension that the accused was on the
verge of flight or escape. Likewise, there is no showing that the whereabouts of the
accused were unknown. 12
I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo,
Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked
up under similar circumstances. As the majority points out, the military had (again) acted on a
mere tip-the military had no personal knowledge (as I elaborated what personal knowledge
means). Second, I do not think that the majority can say that since Amelia Roque, et al. "were
NPA's anyway" (As Roque, et al. allegedly admitted), immediate arrests were "prudent" and
necessary. As I said, that Roque, et al. were admitted "NPA's" is (was) the question before the
trial court and precisely, the subject of controversy. I think it is imprudent for this Court to pass
judgment on the guilt of the petitioners-since after all, and as the majority points out, we are
talking simply of the legality of the petitioner's arrests.
More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the
military, and evidently, the Court is not bound by bare say-so's. Evidently, we can not approve
an arrest simply because the military says it is a valid arrest (the accused being "NPA's
anyway") that would be abdication of judicial duty and when, moreover, the very basis of the
claim rests on dubious "confidential information."
246

According to the majority, we are speaking of simple arrests; we are not talking of the guilt or
innocence of the accused. I certainly hope not, after the majority referred to Rolando Dural as a
"sparrow man" and having Amelia Roque, et al. admit to being NPA's."
It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me
immaterial that the guilt of the accused still has to be established, since meanwhile, the accused
are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the
opinion of the majority, it is nothing to crow about (a mere "administrative measure").
I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R.
Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering
supposedly, on November 22, 1988, the following:
Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13
Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to
sedition" a continuing offense. Obviously, the majority is not saying that it is either, but that:
. . . Many persons may differ as to the validity of such perception and regard the
language as falling within free speech guaranteed by the Constitution. But, then,
Espiritu has not lost the right to insist, during the trial on the merits, that he was
just exercising his right to free speech regardless of the charged atmosphere in
which it was uttered. But, the authority of the peace officers to make the arrest,
without warrant, at the time the words were uttered, or soon thereafter, is still
another thing. In the balancing of authority and freedom, which obviously
becomes difficult at times, the Court has, in this case, titled the scale in favor of
authority but only for purposes of the arrest (not conviction). Let it be noted that
the Court has ordered the bail for Espiritu's release to be reduced from
P60,000.00 to P10,000.00. 14
And obviously, the majority is concerned about whether or not Espiritu's speech was after all,
protected speech, but apparently, that is also of no moment, since: (1) that is a matter of defense;
(2) we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this
case, titled in favor of authority," 15 and (3) we have, anyway, given a reduced bail to the
accused.
First, that the accused's statement is in the category of free speech is not only plain to my mind,
it is a question I do not think the majority can rightly evade in these petitions without shirking
the Court's constitutional duty. It is to my mind plain, because it does not contain enough
"fighting words" recognized to be seditious. 16 Secondly, it is the very question before the
Courtwhether or not the statement in question constitutes an offense for purposes of a
warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can
not answer it.
What the majority has not answered, as I indicated, is that inciting to sedition is in no way a
continuing offense, and as I said, the majority is not apparently convicted that it is, either. Of
course, the majority would anyway force the issue: "But the authority of the peace officers to
make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still
another thing." 17 First, Espiritu was picked up the following day, and in no way is "the following
day" "soon thereafter". Second, we would have stretched the authority of peace officers to make
warrantless arrests for acts done days before. I do not think this is the contemplation of the
Rules of Court.
247

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or
escape" 19 and there was no impediment for the military to go through the judicial processes, as
there was none in the case of Burgos.
In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to
be committed or had just been committed," and unless there existed an urgency as where a
moving vehicle is involved, instant police action can not be justified.
"In the balancing of authority and freedom," states the majority, "the Court has, in this case,
titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It is a strange
declaration, first, because it is supported by no authority (why the Court should "tilt" on the side
of Government), and second, because this Court has leaned, by tradition, on the side of liberty
as the custodian of the Bill of Rights even if we were talking of "simple" arrests.
I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this
case," 22 as if to say that normally, this Court would have tilted the scales the other way. I do
not understand why these cases are apparently, special cases, and apparently, the majority is
not telling us neither. I am wondering why, apart from the fact that these cases involved,
incidentally, people who think differently from the rest of us.
The majority goes on:
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's
arrest without warrant was made only on 28 December 1988, or 14 days later, the
arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988
that the police authorities came to know that Nazareno was probably one of those
guilty in the killing of Bunye II. 23
With all due respect, I do not think that the majority is aware of the serious implications of its
pronouncement on individual rights (and statutory construction in general), and I feel I am
appropriately concerned because as a member of the Court, I am co-responsible for the acts of
my colleagues and I am afraid that I may, rightly or wrongly, be in time made to defend such an
indefensible pronouncement.
Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed"
and the authorities must have "personal knowledge."
In no way can an offense be said to have been "just committed" fourteen days after it was in fact
(allegedly) committed. In no way can the authorities be said to have "personal knowledge" two
weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal
knowledge" of a crime that had "just been committed;" whatever "personal knowledge" they have
is necessarily "personal knowledge" of a crime committed two weeks before.
In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions
of the Rules.
I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose
that I am saying it, (or worse, that I am "coddling criminals"). I am not saying that a suspected
criminal, if he can not be arrested without a warrant, can not be arrested at all but that the
military should first procure a warrant from a judge before effecting an arrest. It is not too much
to ask of so-called law enforcers.
As it is, the majority has enlarged the authority of peace officers to act, when the Rules have
purposely limited it by way of an exception, precisely, to the general rule, mandated by the
248

Constitution no less, that arrests may be done only through a judicial warrant. As it is, the
majority has in fact given the military the broadest discretion to act, a discretion the law denies
even judges 24 today it is fourteen days, tomorrow, one year, and sooner, a decade. I submit
that a year, a decade, would not be in fact unreasonable, following the theory of the majority,
since the military can claim anytime that it "found out only later," as the majority did not find it
unreasonable for the Capital Command to claim that it "came to know that Nazareno was probably
one of those guilty in the killing of Bunye II"25and none of us can possibly dispute it.
I would like to stress strongly that we are not talking of a simple "administrative measure"
alonewe are talking ofarrests, of depriving people of libertyeven if we are not yet talking of
whether or not people are guilty. That we are not concerned with guilt or innocence is hardly the
point, I respectfully submit, and it will not minimize the significance of the petitioners'
predicament.
With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia
Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an uncounselled
confession) was precisely, the basis for Buenaobra's arrest. It is to beg the question, I respectfully
submit, to approve the military's action for the reason that Buenaobra confessed, because
Buenaobra confessed for the reason that the military, precisely, pounced on him. I am not to be
mistaken for prejudging Buenaobra's innocence (although it is supposed to be presumed) but I
can not imagine that Buenaobra would have voluntarily proclaimed to the military that he was
an NPA courier so that the military could pounce on him.
I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been
better days. I do not see how this court can continuously sustain them "where national security
and stability are still directly challenged perhaps with greater vigor from the communist
rebels." 28 First and foremost, and as the majority has conceded, we do not know if we are in
fact dealing with "Communists." The case of Deogracias Espiritu, for one, hardly involves
subversion. Second, "Communism" and "national security" are old hat the dictator's own
excuses to perpetuate tyranny, and I am genuinely disappointed that we would still fall for old
excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be possibly justified
in a regime that respects the rule of law that the Presidential Commitment Order (PCO) is a
valid presidential document (Garcia) and that the filing of an information cures a defective arrest
(Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security"
are valid grounds for warrantless arrests under Section 5(b) of Rule 113.
I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent
jurisprudence (e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no
longer be defended, if they could have been defended, in Plaza Miranda or before our own peers
in the bar.
"What is important," says the majority, "is that every arrest without warrant be tested as to its
legality, via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to
patronize the petitioners and simply, to offer a small consolation, when after all, this Court is
validating their continued detention. 30 With all due respect, I submit that it is nothing for
which the public should be elated.
A Final Word
As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate
one principle: The State has no right to bother citizens without infringing their right against
arbitrary State action. "The right of the people," states the Constitution, "to be secure in their
persons, houses, papers, and effects against unreasonable searchers and seizures of whatever
nature and for any purpose shall be inviolable . . . ." 31 "The State," the Charter likewise states,
"values the dignity of every human person and guarantees full respect for human rights."32 The
249

Constitution states the general rule the majority would make the exception the rule, and the
rule the exception. With all due respect, this is not what constitutionalism is all about.
I submit that the "actual facts and circumstances" the majority refers to are, in the first place,
doubtful, the "actual facts and circumstances" being no more than "confidential information"
(manufactured or genuine, we have no way of telling) and in the second place, any information
with which the military (or police) were armed could no more than be hearsay, not personal,
information. I submit that the "actual facts and circumstances" the majority insists on can not
justify the arrests in question under Section 5(b) of Rule 113, the rule the majority insists is the
applicable rule.
Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso
Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was
arrested one day after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen
days after it (allegedly, murder). Yet, the majority would approve the police's actions nonetheless
because the police supposedly "found out only later." I submit that the majority has read into
Section 5(b) a provision that has not been written there.
"More than the allure of popularity of palatability to some groups," concludes the majority, "what
is important is that the Court be right." 33
Nobody has suggested in the first place, that Umil was and is a question of popularity or
palatability. Umil is a question, on the contrary, of whether or not the military (or police), in
effecting the arrests assailed, had complied with the requirements of law on warrantless arrests.
Umil is a question of whether or not this Court, in approving the military's actions, is right.
In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances,
torture, hamletting, bombings, saturation drives, and various human rights violations increase
in alarming rates. In its update for October, 1990, the Task Force Detainees of the Philippines
found:
An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;
Four thousand four hundred eight (4,408) political detentions from January, 1989 to September,
1990, 4,419, illegally;
Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated
salvage, and 109 remained missing after their arrest;
Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157
were wounded;
The victims belonged to neighborhood and union organizations;
Since February, 1986, 532 of those illegally arrested were women;
From January to June 1990, 361 children were detained for no apparent reason;
One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of
bombing, shellings, and food blockades undertaken by the military since 1988. 34
It is a bleak picture, and I am disturbed that this Court should express very little concern. I am
also disappointed that it is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful
that despite my departure, it will not be too late.
250

Motions denied.
# Footnotes
1 G.R. No. 61388, April 20,1983,121 SCRA 472.
2 G.R. No. 70748, October 21,1985,139 SCRA 349.
3 Section 1, Rule 102: "To what habeas corpus extends. Except otherwise
expressly provided by law, the writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any person is deprived of his liberty, or
by which the rightful custody of any person is withheld from the person entitled
thereto.
4 Villavicencio vs. Lukban, 39 Phil. 778.
5 Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349.
6 Sayo vs. Chief of Police, 80 Phil. 859 (1948).
7 Republic Act No. 1700 known as the "Anti-Subversion Act" titled "An Act to
outlaw the CPP and similar associations, penalize membership therein and for
other purposes." (1957); and the subsequent related decrees such as Presidential
Decree No. 885, entitled "Outlawing subversive organizations, penalizing
membership therein, and for other purposes." (1976); and Presidential Decree No.
1835 entitled "Codifying the various laws on anti-subversion and increasing the
penalties for membership in subversive organizations."
8 G.R. No. 61388. April 20,1983,121 SCRA 472.
9 US vs. Santos, 36 Phil. 851 (1917).
10 Ibid.
11 Ibid.
12 Records of G.R. No. 81567, affidavit dated 4 February 1988.
13 Rollo, pp. 311-312 (G.R. No. 81567).
14 Presidential Decree No. 169 requires attending physicians and/or persons
treating injuries from any form of violence, to report such fact to the Philippine
Constabulary and prescribing penalties for any violation thereof.
15 Decision dated 9 July 1990, pp. 19-20.
16 Decision, pp. 10-11.
17 Ibid., p. 12.
18 Ibid., pp. 12-13.
19 Ibid., pp. 14-15.
251

20 Decision, p. 18.
21 United States vs. Sanchez, No. 9294, March 30,1914, 27 Phil, 442.
22 Ibid: "The legality of the detention does not depend upon the fact of the crime,
but . . . upon the nature of the deed, wherefrom such characterization may
reasonably be inferred by the officer or functionary to whom the law at that
moment leaves the decision for the urgent purpose of suspending the liberty of the
citizen.
"In People vs. Ancheta, it was held that "the legality of detention made by a person
in authority or an agent thereof ... does not depend upon the juridical and much
less the judicial fact of crime which, at the time of its commission, is not and
cannot definitively be determined for the lack of necessary data and for
jurisdiction but upon the nature of the deed. . . . ."
23 United States vs. Santos, supra.
24 Ibid.
25 Article 124 of the Revised Penal Code provides:
"ART. 124. Arbitrary detention. Any public officer or employee who, without
legal grounds. detains a person, shall suffer:
1. The penalty of arresto mayor in its maximum period to prision correccional in
its maximum period, if the detention has not exceeded three
days. . . .
26 Damages for the impairment of rights and liberties of another person.
27 Affidavit of Avelino Faustino dated 23 November 1988; Return of the Writ dated
25 November 1988; Decision dated 9 July 1990, pp. 23-24.
28 Joint Affidavit of 5 police agents, dated 23 November 1988; Decision, supra.
29 Affidavit of police agents, dated 28 December 1988, marked Exhibit "A" at the
RTC, Bian, Branch 24.
30 Decision of 9 July 1990, pp. 9 and 12.
31 Decision of 9 July 1990. p. 13.
FELICIANO, J., concurring and dissenting:
1 Salaysay vs. Castro, 98 Phil. 364 (1956).
2 Realty Investments Inc. vs. Pastrana. 84 Phil. 842 (1949)-l Sayo vs. Chief of
Police of Manila, 80 Phil. 859 (1948)
3 64 Phil. 33 (1937).
4 64 Phil. at 44.
252

5 144 SCRA 1 (1986).
6 144 SCRA at 14.
7 See e.g., U.S. vs. Samonte, 16 Phil. 516 (1910).
8 In People vs. Aminnudin, 163 SCRA 402 (1988), the Court, in nullifying a
warrantless arrest, said, through Mr. Justice Cruz:
"In the many cases where tills Court has sustained the warrantless arrest of
violators on the Dangerous Drugs Act, it has always been shown that they were
caught red-handed, as a result of what are popularly called "buy-bust" operations
of the narcotics agents. Rule 113 was clearly applicable because at the precise
time of arrest the accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had
just done so. What he was doing was descending the gangplank of the M/V Wilcon
9 and there was no outward indication that called for his arrest. To all appearances,
he was like any of the other passengers innocently disembarking from the vessel. It
was only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the furtive finger
that triggered his arrest. The Identification by the informer was the probable cause
as determined by the officers (and not a judge) that authorized them to pounce
upon Aminnudin and immediately arrest him." (163 SCRA at 409-410) (emphasis
supplied)
9 People vs. Burgos, 114 SCRA 1 (1986).
10 121 SCRA 472 (1983).
11 Parulan vs. Director of Prisons, 22 SCRA 638 (1968); U.S. vs. Cunanan, 26
Phil. 376 (1913); U.S. vs. Santiago, 27 Phil. 408 (1914); U.S. vs. Laureaga, 2 Phil.
71 (1903).
12 E.g. People vs. Zapanta and Bondoc, 88 Phil. 688 (1951) where the Court held
that each instance of sexual intercourse constitute a separate crime of adultery,
though the same persons and the same offended spouse are involved, and that a
second information may be filed against the same accused for later acts of sexual
intercourse.
13 Section 6, P.D. 1835, 16 January 1981.
Sarmiento, J.: dissenting:
1 Resolution, 1.
2 Supra; emphasis in the original.
3 The majority cites Presidential Decrees Nos. 885 and 1835 and "related decrees;"
both Presidential Decrees Nos. 885 and 1835 have been repealed by Executive
Order No. 167, as amended by Executive Order No. 267.
253

4 Please note that under Section 6 of Presidential Decree No. 1835, "[t]the
following acts shall constitute prima facie evidence of membership in any
subversive organization: (a) Allowing himself to be listed as a member in any book
or any of the lists, records, correspondence, or any other document of the
organization; (b) Subjecting himself to the discipline of such association or
organization in any form whatsoever; (c) Giving financial contribution to such
association or organization in dues, assessments, loans or in any other forms; (d)
Executing orders, plans, or directives of any kind of such association or
organization; (e) Acting as an agent, courier, messenger, correspondent, organizer,
or in any other capacity, on behalf of such association or organization; (f)
Conferring with officers or other members of such association or organization in
furtherance of any plan or enterprise thereof; (g) Transmitting orders, directives,
or plans of such association or organization orally or in writing or any other
means of communication such as by signal, semaphore, sign or code; (h)
Preparing documents, pamphlets, leaflets, books, or any other type of publication
to promote the objectives and purposes of such association or organization; (i)
Mailing, shipping, circulating, distributing, or delivering to other persons any
material or propaganda of any kind on behalf of such association or organization;
(j) Advising, counselling, or in other way giving instruction, information,
suggestions, or recommendations to officers, or members or to any other person to
further the objectives of such association or organization; and (k) Participating in
any way in the activities, planning action, objectives, or purposes of such
association or organization." Please note that none of these are alleged by the
military in this case, assuming that the Decree still exists.
5 Nos. L-32613-14, December 27, 1972, 48 SCRA 382; emphasis supplied. In
Taruc vs. Ericta (No. L-34856, Nov. 29, 1989, 168 SCRA 63, 66-67), I held that
People vs. Ferrer is no longer a good basis for sustaining the Anti-Subversion Act.
I am not here invoking Ferrer to sustain it, but to discuss its elaboration of the
provisions of Republic Act No. 1700.
6 Resolution, supra.
7 G.R. No. 68955, September 4, 1986, 144 SCRA 1.
8 Supra, 14.
9 36 Phil. 853 (1917).
10 Resolution, supra, 10.
11 People vs. Burgos, supra, 15.
12 Supra.
13 Resolution, supra, 15.
14 Supra, 16.
15 Supra.
16 See United States vs. Apurado, 7 Phil. 422 (1907).
17 Resolution, supra; emphasis supplied.
254

18 Supra.
19 At 15.
20 G.R. No. 74869, July 6, 1988, 163 SCRA 402.
21 Resolution, supra.
22 Supra, 17.
23 Supra.
24 See RULES OF COURT, supra, Rule 112, sec. 5, on the number of days a judge
may act.
25 Resolution, supra.
26 G.R. No. 61388, April 20, 1983, 121 SCRA 472.
27 G.R. No. 70748, October 21, 1985, 139 SCRA 349.
28 Resolution, supra, 18-19.
29 Resolution, supra, 19.
30 Except for Rolando Dural, the rest of the petitioners have been acquitted by the
lower courts trying their cases.
31 CONST., art. III, sec. 2.
32 Supra, art. II, sec. 11.
33 Resolution, supra, 19.
34 Manila Chronicle, October, 1990.







255

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 93239 March 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDISON SUCRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:p
Edison Sucro was charged with and convicted of violation of Section 4, Article II of the
Dangerous Drugs Act, under an Information which reads:
That on or about the 21st day of March, 1989, in the evening, in the Poblacion,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, acting as a
pusher or broker in the business of selling, administering, delivery, giving away to
another and/or distributing prohibited drugs, did then and there wilfully,
unlawfully and feloniously and without authority of law have in his possession
and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea bags
of dried marijuana leaves which were confiscated from him by the police
authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried
marijuana leaves to a customer. (Rollo, p. 9)
Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to
the offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent
portion of which reads:
WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of
the sale of prohibited drug under Section 4, Article II of the Dangerous Drug Act,
as amended, and sentencing him to suffer the penalty of life imprisonment, and
pay a fine of P20,000, and costs. He shall be entitled to full credit in the service of
his sentence with the period for which he has undergone preventive imprisonment
to the date of promulgation of this judgment. All the items of marijuana
confiscated in this case are declared forfeited in favor of the State. (Rollo, p. 41)
From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning
the following as errors allegedly committed by the court a quo, to wit:


256

I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE
PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO
BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN
WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE
ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE TIME
OF HIS ARREST.
II
THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO
GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II,
OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A
PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00.
(Appellant's Brief, p. 1)
The antecedent facts of the case as summarized by the Solicitor General are as follows:
On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was
instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo,
Aklan) to monitor the activities of appellant Edison Sucro, because of information
gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN, May 2,1989).
As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself
under the house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the
house of Regalado, about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio
saw appellant enter the chapel, taking something which turned out later to be
marijuana from the compartment of a cart found inside the chapel, and then
return to the street where he handed the same to a buyer, Aldie Borromeo. After a
while appellant went back to the chapel and again came out with marijuana which
he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It was at this instance that
Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on. P/Lt.
Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about
6:30 P.M., Pat. Fulgencio again called up Seraspi to report that a third buyer later
Identified as Ronnie Macabante, was transacting with appellant. (pp. 18-19, Ibid)
At that point, the team of P/Lt. Seraspi proceeded to the area and while the police
officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi
to intercept Macabante and appellant. P/Lt. Seraspi and his team caught up with
Macabante at the crossing of Mabini and Maagma Sts. in front of the Aklan
Medical Center. Upon seeing the police, Macabante threw something to the ground
which turned out to be a tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989)
When confronted, Macabante readily admitted that he bought the same from
appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24, 1989) The
police team was able to overtake and arrest appellant at the corner of C. Quimpo
and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from
the cart inside the chapel and another teabag from Macabante, The teabags of
marijuana were sent to the PC-INP Crime Laboratory Service, at Camp Delgado,
Iloilo City for analysis. The specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-
4") were all found positive of marijuana. (pp. 47, TSN, Sept. 4, 1989)" (Appellee's
Brief, pp. 3-6)
257

As can be seen from the facts, the issue hinges mainly on whether or not the arrest without
warrant of the accused is lawful and consequently, whether or not the evidence resulting from
such arrest is admissible.
We rule in the affirmative.
The accused-appellant contends that his arrest was illegal, being a violation of his rights granted
under Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time
for the police officers to apply for a search and arrest warrants considering that Fulgencio
informed his Station Commander of the activities of the accused two days before March 21,
1989, the date of his arrest.
This contention is without merit.
Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest
without warrant is considered lawful. The rule states:
Arrest without warrant, when lawful. A peace officer or private person may,
without warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it;
(Emphasis supplied)
An offense is committed in the presence or within the view of an officer, within the meaning of
the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a
distance, or hears the disturbances created thereby and proceeds at once to the scene thereof.
(U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910])
The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor
the activities of the accused who was earlier reported to be selling marijuana at a chapel two (2)
meters away from Regalado's house.
Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw
Sucro talk to some persons, go inside the chapel, and return to them and exchange some things.
These, Sucro did three times during the time that he was being monitored. Fulgencio would then
relay the on-going transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that Macabante, when intercepted by the police, was
caught throwing the marijuana stick and when confronted, readily admitted that he bought the
same from accused-appellant clearly indicates that Sucro had just sold the marijuana stick to
Macabante, and therefore, had just committed an illegal act of which the police officers had
personal knowledge, being members of the team which monitored Sucro's nefarious activity.
The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that
police officers have personal knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused. Thus, it stated:
When Luciano and Caraan reached the place where the alleged transaction would
take place and while positioned at a street comer, they saw appellant Regalado
Bati and Warner Marquez by the side of the street about forty to fifty meters away
258

from them (the public officers). They saw Marquez giving something to Bati, who,
thereafter handed a wrapped object to Marquez who then inserted the object
inside the front of his pants in front of his abdomen while Bati, on his part, placed
the thing given to him inside his pocket. (p. 2)
xxx xxx xxx
. . . Both Patrolman Luciano and Caraan actually witnessed the same and their
testimonies were based on their actual and personal knowledge of the events that
took place leading to appellant's arrest. They may not have been within hearing
distance, specially since conversation would expectedly be carried on in hushed
tones, but they were certainly near enough to observe the movements of the
appellant and the buyer. Moreover, these prosecution witnesses are all law
enforcers and are, therefore, presumed to have regularly performed their duties in
the absence of proof to the contrary (People v. Bati, supra citing People v. Agapito,
G.R. No. 73786, October 12, 1987)
The accused questions the failure of the police officers to secure a warrant considering that
Fulgencio himself knew of Sucro's activities even prior to the former's joining the police force.
Fulgencio reported Sucro's activities only three days before the incident.
As the records reveal, Fulgencio and Sucro had known each other since their childhood years
and that after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in
their locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report
his childhood friend and merely advised him not to engage in such activity. However, because of
reliable information given by some informants that selling was going on everyday, he was
constrained to report the matter to the Station Commander.
On the other hand, the failure of the police officers to secure a warrant stems from the fact that
their knowledge acquired from the surveillance was insufficient to fulfill the requirements for the
issuance of a search warrant. What is paramount is that probable cause existed. Thus, it has
been held in the case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991):
In the instant case, it was firmly established from the factual findings of the trial
court that the authorities had reasonable ground to believe that appellant would
attempt to bring in contraband and transport it within the country. The belief was
based on intelligence reports gathered from surveillance activities on the
suspected syndicate, of which appellant was touted to be a member. Aside from
this, they were also certain as to the expected date and time of arrival of the
accused from China. But such knowledge was clearly insufficient to enable them
to fulfill the requirements for the issuance of a search warrant. Still and all, the
important thing is that there was probable cause to conduct the warrantless
search, which must still be present in such a case.
As the Solicitor General has pointed out:
There are several instances when a warrantless search and seizure can be effected
without necessarily being preceded by an arrest provided the same is effected on
the basis of probable cause (e.g. stop and search without warrant at checkpoints).
Between warrantless searches and seizures at checkpoints and in the case at bar
the latter is more reasonable considering that unlike in the former, it was effected
on the basis of probable cause. Under the circumstances (monitoring of
transactions) there existed probable cause for the arresting officers, to arrest
appellant who was in fact selling marijuana and to seize the contraband.
259

That searches and seizures must be supported by a valid warrant is not an absolute rule
(Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is
a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal
Procedure, which provides that a person lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a
search warrant. (People v. Castiller, G.R. No. 87783, August 6, 1990)
The accused-appellant claims that the arrest having been done without warrant, it follows that
the evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about the arrest considering its compliance with
the requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are
admissible in evidence.
Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for
testifying could be merely to escape prosecution.
We quote the trial court's finding as to the testimony of Macabante:
The non-filing of a complaint against him for possession of marijuana may have
been the reason of (sic) his willingness to testify in court against the accused. But
this does not necessarily taint the evidence that proceeds from his lips. As
explained by Lt. Seraspi, the best sources of information against drug pushers are
usually their customers, especially if as in this case, there is no other direct
evidence of the selling except the testimony of the buyer. We accept this
observation as a realistic appraisal of a situation in which drug users are, and
should be employed by law enforcement authorities to bolster the drive against
pushers who are the real felons in our society. We have observed the demeanor of
the witness in court, and found him to be straightforward, unhesitating, and
spontaneous in his declarations, so that we are satisfied as to his intention and
disposition to tell the truth (Rollo, p. 40)
Time and again it has been held that the findings of the trial court are entitled to great weight
and should not be disturbed on appeal unless it is shown that the trial court had overlooked
certain facts of weight and importance, it being acknowledged. that the court below, having seen
and heard the witnesses during the trial, is in a better position to evaluate their testimonies
(People v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745
[1988]; People v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]).
Furthermore, the testimony of Macabante was corroborated on material points by public officers
Fulgencio and Seraspi.
There is nothing in the record to suggest that the police officers were compelled by any motive
than to accomplish their mission to capture a drug pusher in the execution of the crime, the
presumption being that police officers perform their duties regularly in the absence of any
evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; People v.
Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]).
The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the
items seized were all positive for marijuana.
In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi
which is unavailing considering that he was positively identified by Macabante to be the person
from whom he bought marijuana.
260

Sucro alleges that he could not have committed the crime since he was with his uncle and
cousin distributing handbills for his Auntie's candidacy. The fact, however, remains that it does
not preclude the possibility that he was present in the vicinity as established by his admission
that he moved a lot and even had the occasion to meet Macabante on the street.
It is well-settled that mere denials cannot prevail against the positive identification of the
appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and
People v. Paco, 170 SCRA 681 [1989])
Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed
the offense charged. The trial court's decision must be upheld.
WHEREFORE, the decision appealed from is hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.
















261

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 95902 February 4, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DON RODRIGUEZA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

REGALADO, J.:
On appeal before us is the decision of the Regional Trial Court of Legaspi City, Branch 10,
finding accused-appellant Don Rodrigueza guilty beyond reasonable doubt of violating Section 4,
Article II of the Dangerous Drugs Act of 1972 (Republic Act No. 6425, as amended) and
sentencing him to suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and
costs.
1

However, the Solicitor General, deviating from his conventional stance in the prosecution of
criminal cases, recommends the acquittal of appellant for the reasons stated in his Manifestation
for Acquittal (In Lieu of Appellee's Brief) filed with the Court. We have reviewed and analyzed the
testimonial and documentary evidence in this case and we find said recommendation to be well
taken.
The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused, Samuel
Segovia and Antonio Lonceras, with allegedly having in their custody and possession 100 grams
of marijuana leaves and for selling, in a buy-bust operation, said 100 grams of dried marijuana
leaves for a consideration of P200.00.
2

During the arraignment, all the accused pleaded not guilty to the charge against them. At the
trial, the prosecution and the defense presented several witnesses after which the court a
quo rendered judgment acquitting Samuel Segovia and Antonio Lonceras but convicting and
penalizing herein appellant as hereinbefore stated.
The following facts are culled from the decision of the trial court and the evidence presented by
the prosecution.
At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was in their
headquarters at the Office of the Narcotics Regional Unit at Camp Bagong Ibalon, Legaspi City,
together with S/Sgt. Elpidio Molinawe, CIC Leonardo B. Galutan and their commanding officer,
Major Crisostomo M. Zeidem, when a confidential informer arrived and told them that there was
an ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a
team to conduct a buy-bust operation, which team was given P200.00 in different denominations
to buy marijuana. These bills were treated with ultraviolet powder at the Philippine Constabulary
262

Crime Laboratory (PCCL). Sgt. Molinawe gave the money to Taduran who acted as the poseur
buyer. He was told to look for a certain Don, the alleged seller of prohibited drugs. Taduran went
to Tagas alone and, while along the road, he met Samuel Segovia. He asked Segovia where be
could find Don and where he could buy marijuana. Segovia left for a while and when be
returned, he was accompanied by a man who was later on introduced to him as Don, herein
appellant.
3

After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a passing tricycle
driven by Antonio Lonceras. He boarded it and left Taduran and Segovia. When he came back,
Don gave Taduran "a certain object wrapped in a plastic" which was later identified as
marijuana, and received payment therefor. Thereafter, Taduran returned to the headquarters
and made a report regarding his said purchase of marijuana.
4

Based on that information, Major Zeidem ordered a team to conduct an operation to apprehend
the suspects. In the evening of the same date, CIC Galutan and S/Sgt. Molinawe proceeded to
Regidor Street, Daraga, Albay and arrested appellant, Antonio Lonceras and Samuel Segovia. The
constables were not, however, armed with a warrant of arrest when they apprehended the three
accused. The arrestees were brought to the headquarters for investigation.
5

Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the house of
Jovencio Rodrigueza, father of appellant. Taduran did not go with them. During the raid, they
were able to confiscate dried marijuana leaves and a plastic syringe, among others. The search,
however, was not authorized by any search warrant.
6

The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but appellant was
detained. An affidavit, allegedly taken from and executed by him, was sworn to by him before the
assistant city prosecutor. Appellant had no counsel when his sworn statement was taken during
that custodial investigation. The arrestees were also examined by personnel of the PCCL and
were found positive for ultraviolet powder.
7

The three accused presented different versions of their alleged participations.
Samuel Segovia testified that he was in their house in the evening of July 1, 1987 listening to the
radio. Later, he ate his merienda and then went out to buy cigarettes from the store. While he
was at the store, a jeep stopped behind him. Several armed men alighted therefrom and ordered
him to get inside the jeep. He refused but he was forced to board the vehicle. He was even hit by
the butt of a gun. 8
He was thereafter brought to Camp Bagong Ibalon where he was investigated and was repeatedly
asked regarding the whereabouts of Rodrigueza. He was manhandled by the NARCOM agents
and was detained while inside the camp. He was then made to hold a P10.00 bill treated with
ultraviolet powder. When he was taken to the PCCL and examined he was found positive of the
ultraviolet powder. He was also made to sign some papers but he did not know what they were
all about.
9

Appellant, on the other hand, testified that on said date he was in the house of his aunt in San
Roque, Legaspi City. He stayed there overnight and did not leave the place until the next day
when his brother arrived and told him that their father was taken by some military men the
preceding night. Appellant went to Camp Bagong Ibalon and arrived there at around 8:00 o'clock
in the morning of July 2, 1987. When he arrived, he was asked if he knew anything about the
marijuana incident, to which question he answered in the negative. Like Segovia, he was made to
hold a P10.00 bill and was brought to the crime laboratory for examination. From that time on,
he was not allowed to go home and was detained inside the camp. He was also tortured in order
to make him admit his complicity in the alleged sale of marijuana.
10

263

In the assignment of errors in his brief, appellant contends that the trial court erred in (1)
admitting in evidence the sworn statement of appellant which was obtained in violation of his
constitutional rights; (2) convicting appellant of the crime charged despite the fact that the 100
grams of dried marijuana leaves allegedly bought from him were not properly identified; (3)
convicting appellant of the crime charged despite the fact that the evidence for the prosecution is
weak and not convincing; and (4) finding appellant guilty beyond reasonable doubt of selling or
at least acting as broker in the sale of the 100 grams of marijuana to CIC Taduran late in the
afternoon of July 1, 1987, despite the failure of the prosecution to prove his guilt beyond
reasonable doubt.
11

We rule for the appellant and approve the recommendation for his acquittal. In disposing of this
case, however, we feel that the issues raised by appellant should properly be discussed seriatim.
1. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a
malefactor in flagrante delicto.
12
Applied to the case at bar, the term in flagrante delicto requires
that the suspected drug dealer must be caught redhanded in the act of selling marijuana or any
prohibited drug to a person acting or posing as a buyer.
In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this
qualification. Based on the very evidence of the prosecution, after the alleged consummation of
the sale of dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza
instead of arresting and taking him into his custody. This act of CIC Taduran,
assuming arguendo that the supposed sale of marijuana did take place, is decidedly contrary to
the natural course of things and inconsistent with the aforestated purpose of a buy-bust
operation. It is rather absurd on his part to let appellant escape without having been subjected
to the sanctions imposed by law. It is, in fact, a dereliction of duty by an agent of the law.
2. The admissibility of the sworn statement allegedly executed by appellant was squarely placed
in issue and, as correctly pointed out by the defense, said sworn statement is inadmissible in
evidence against appellant.
We have once again to reiterate and emphasize that Article III of the 1987 Constitution provides:
Sec. 12 (1). Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have a competent
and independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or section 17 hereof
shall be inadmissible in evidence against him.
An examination of said sworn statement shows that appellant was informed of his constitutional
right to remain silent and to be assisted by counsel during custodial examination. He was also
asked if he was waiving his right to be assisted by counsel and he answered in the affirmative.
However, while the rights of a person under custodial investigation may be waived, such waiver
must be made not only voluntarily, knowingly and intelligently but also in the presence and with
the assistance of counsel.
13
In the present case, the waiver made by appellant being without the
assistance of counsel, this omission alone is sufficient to invalidate said sworn statement.
14

3. Corollary to this, we take cognizance of the error of the trial court in admitting in evidence
against appellant the articles allegedly confiscated during the raid conducted in the house of
Jovencio Rodrigueza.
264

As provided in the present Constitution, a search, to be valid, must generally be authorized by a
search warrant duly issued by the proper government authority.
15
True, in some instances, this
Court has allowed government authorities to conduct searches and seizures even without a
search warrant. Thus, when the owner of the premises waives his right against such
incursion;
16
when the search is incidental to a lawful arrest;
17
when it is made on vessels and
aircraft for violation of customs laws;
18
when it is made on automobiles for the purpose of
preventing violations of smuggling or immigration laws;
19
when it involves prohibited articles in
plain view;
20
or in cases of inspection of buildings and other premises for the enforcement of fire,
sanitary and building regulations,
21
a search may be validly made even without a search
warrant.
In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio
Rodrigueza was not authorized by any search warrant. It does not appear, either, that the
situation falls under any of the aforementioned cases. Hence, appellant's right against
unreasonable search and seizure was clearly violated. The NARCOM agents could not have
justified their act by invoking the urgency and necessity of the situation because the testimonies
of the prosecution witnesses reveal that the place had already been put under surveillance for
quite some time. Had it been their intention to conduct the raid, then they should, because they
easily could, have first secured a search warrant during that time.
4. The Court further notes the confusion and ambiguity in the identification of the confiscated
marijuana leaves and other prohibited drug paraphernalia presented as evidence against
appellant.
CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100 grams of
dried marijuana leaves wrapped in a plastic bag. Surprisingly, and no plausible explanation has
been advanced therefor, what were submitted to and examined by the PCCL and thereafter
utilized as evidence against the appellant were the following items:
One (1) red and white colored plastic bag containing the following:
Exh. "A"Thirty (30) grams of suspected dried marijuana fruiting tops contained
inside a transparent plastic bag.
Exh. "B" Fifty (50) grams of suspected dried marijuana leaves and seeds
contained inside a white colored plastic labelled "Robertson".
Exh. "C" Four (4) aluminum foils each containing suspected dried marijuana
fruiting tops having a total weight of seven grams then further wrapped with a
piece of aluminum foil.
Exh. "D" Five (5) small transparent plastic bags each containing suspected dried
marijuana fruiting tops having a total weight of seventeen grams.
Exh. "E" One plastic syringe.
22

Evidently, these prohibited articles were among those confiscated during the so-called follow-up
raid in the house of Jovencio Rodrigueza. The unanswered question then arises as to the identity
of the marijuana leaves that became the basis of appellant's conviction.
23
In People
vs. Rubio,
24
this Court had the occasion to rule that the plastic bag and the dried marijuana
leaves contained therein constitute the corpus delicti of the crime. As such, the existence thereof
must be proved with certainty and conclusiveness. Failure to do so would be fatal to the cause of
the prosecution.
265

5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect
his credibility. It even enhances such credibility because it only shows that he has not been
rehearsed.
25
However, when the inconsistencies pertain to material and crucial points, the same
detract from his overall credibility.
The exception, rather than the rule, applies in the case at bar. As correctly pointed out by the
Solicitor General, the testimonies of the prosecution witnesses are tainted with serious flaws and
material inconsistencies rendering the same incredible.
26

CIC Taduran, in his testimony, said that they had already been conducting surveillance of the
place where the buy-bust operation was to take place. It turned out, however, that he did not
even know the exact place and the identity of the person from whom he was to buy marijuana
leaves. Thus:
FISCAL TOLOSA
Q What place in Tagas were you able to go (to)?
WITNESS
A I am not actually familiar in (sic) that place, in Tagas, although
we occasionally passed there.
Q Now, upon your arrival in Tagas, what did you do that afternoon?
A I waited for the suspect because previously, we have already been
conducted (sic) surveylance (sic) in the vicinity.
Q Upon arrival in Tagas, were you able to see the suspect?
A By the road, sir.
Q Who was the first person did you see (sic) when you arrived at
Tagas?
A The first person whom I saw is Samuel Segovia.
Q Were you able to talk with this Samuel Segovia?
A According to him, we could get some.
27

The same findings go for the testimony of witness Galutan. In his direct examination, he declared
that they arrested the three accused all at the same time on the fateful night of July 1, 1987.
But, in his cross-examination and as corroborated by the Joint Affidavit of Arrest
28
submitted by
him and Molinawe, it appeared that Lonceras and Segovia were arrested on different times and
that appellant Don Rodrigueza was not among those who were arrested. Instead, it was Jovencio
Rodrigueza, Don's father, who was picked up at a much later time.
With said inconsistencies in sharp focus, we are constrained to give more credibility to the
testimony of appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi,
and as such is the weakest defense in a criminal prosecution, there are, nonetheless, some
evidentiary aspects pointing to the truth in his testimony. Firstly, the Joint Affidavit of Arrest
corroborates his testimony that he was not among those who were arrested on the night of July
266

1, 1987. His co-accused Segovia also testified that appellant Rodrigueza was not with them when
they were apprehended by the NARCOM agents.
Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also
revealed during the trial of the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and
Hospicio Segovia, father of Samuel Segovia, testified that Sgt. Molinawe, who has since been
reportedly dismissed from the service, asked for P10,000.00 from each of them in exchange for
the liberty of the accused.
29
This allegation was never refuted by the prosecution. Hence, the
rule laid down by this Court that the statements of prosecution witnesses are entitled to full faith
and credit
30
has no application in the case at bar.
Finally, the Court has repeatedly ruled that to sustain the conviction of the accused, the
prosecution must rely on the strength of its own evidence and not on the weakness of the
defense.
31
As clearly shown by the evidence, the prosecution has failed to establish its cause. It
has not overcome the presumption of innocence accorded to appellant. This being the case,
appellant should not be allowed to suffer for unwarranted and imaginary imputations against
him.
WHEREFORE, the judgment of conviction of the court below is hereby REVERSED and SET
ASIDE and accused-appellant Don Rodrigueza is hereby ACQUITTED of the crime charged. It is
hereby ordered that he be immediately released from custody unless he is otherwise detained for
some other lawful cause.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.

Footnotes
1 Original Record, 622.
2 Ibid., 1.
3 TSN, June 14, 1988, 4-14.
4 Ibid., Id., 11-15.
5 TSN, March 17, 1988, 8-12.
6 TSN, June 14, 1988, 16.
7 TSN, May 18, 1988, 16-17.
8 TSN, September 6, 1988, 4-7.
9 Ibid., Id., 8-13.
10 TSN, May 23, 1989, 12.
11 Brief for the Appellant, 1.
267

12 People vs. Del Pilar, 188 SCRA 37 (1990).
13 People vs. Olaes, 188 SCRA 91 (1990); People vs. Hernandez, et al., 162 SCRA
422 (1988).
14 People vs. Nolasco, 163 SCRA 623 (1988).
15 Section 2, Article III, 1987 Constitution.
16 Bagcal vs. Villaraza, 120 SCRA 525 (1983); Callanta vs. Villanueva, et al., 77
SCRA 377 (1977).
17 Adams vs. Williams, 407 U.S. 143 (1972).
18 Roldan vs. Arca, 65 SCRA 336 (1975).
19 Carroll vs. U.S., 267 U.S. 132 (1925).
20 Harris vs. U.S., 390 U.S. 234 (1968).
21 Camara vs. Municipal Court, 387 U.S. 523 (1967).
22 Exh. "E", Chemistry Report No. D-4387; Original Record, 296.
23 Brief for the Appellant, 17.
24 142 SCRA 329 (1986).
25 People vs. Marcos, 185 SCRA 154 (1990); People vs. Mangalino, 182 SCRA 329
(1990).
26 Manifestation for Acquittal, 18.
27 TSN, June 14, 1988, 9.
28 Original Record, 474.
29 TSN, August 4, 1989, 8-10; September 6, 1989, 9.
30 People vs. Demecillo, 186 SCRA 161 (1990).
31 People vs. Solis, et al., 182 SCRA 182 (1990); People vs. Buenaflor, 181 SCRA
225 (1990).




268

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 136066-67 February 4, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BINAD SY CHUA, accused-appellant.
D E C I S I O N
YNARES-SANTIAGO, J.:
Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article III of R.A.
6425, as amended by R.A. 7659, and for Illegal Possession of ammunitions in two separate
Informations which read as follows:
Criminal Case No. 96-507
1

That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession and under his control two (2) plastic bags
containing Methamphetamine Hydrochloride (SHABU) weighing more or less two (2) kilos and
one (1) small plastic bag containing Methamphetamine Hydrocloride weighing more or less fifteen
(15) grams, which is a regulated drug, without any authority whatsoever.
Criminal Case No. 96-513
2

That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession and under his control twenty (20) pieces of live
.22 cal. ammunitions, without first having obtained a license or permit to possess or carry the
same.
Accused-appellant pleaded "not guilty" on arraignment.1awphi1.nt The two cases were then
jointly tried.
The prosecution presented three (3) witnesses, all members of the police force of Angeles City.
Their testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2
Emmeraldo Nunag received a report from their confidential informant that accused-appellant
was about to deliver drugs that night at the Thunder Inn Hotel in Balibago, Angeles City. The
informer further reported that accused-appellant distributes illegal drugs in different karaoke
bars in Angeles City. On the basis of this lead, the PNP Chief of Angeles City, Col. Neopito
Gutierrez, immediately formed a team of operatives composed of Major Bernardino, Insp. Tullao,
Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets,
with SPO2 Mario Nulud, as team investigator. The group of SPO2 Nulud, PO2 Nunag and the
civilian informer positioned themselves across McArthur Highway near Bali Hai Restaurant,
fronting Thunder Inn Hotel. The other group acted as their back up.
269

At around 11:45 in the evening, their informer pointed to a car driven by accused-appellant
which just arrived and parked near the entrance of the Thunder Inn Hotel. After accused-
appellant alighted from the car carrying a sealed Zest-O juice box, SPO2 Nulud and PO2 Nunag
hurriedly accosted him and introduced themselves as police officers. As accused-appellant pulled
out his wallet, a small transparent plastic bag with a crystalline substance protruded from his
right back pocket. Forthwith, SPO2 Nulud subjected him to a body search which yielded twenty
(20) pieces of live .22 caliber firearm bullets from his left back pocket. When SPO2 Nunag peeked
into the contents of the Zest-O box, he saw that it contained a crystalline substance. SPO2
Nulud instantly confiscated the small transparent plastic bag, the Zest-O juice box, the twenty
(20) pieces of .22 caliber firearm bullets and the car used by accused-appellant. Afterwards,
SPO2 Nulud and the other police operatives who arrived at the scene brought the confiscated
items to the office of Col. Guttierez at the PNP Headquarters in Camp Pepito, Angeles City.
3

When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags containing
crystalline substances. The initial field test conducted by SPO2 Danilo Cruz at the PNP
Headquarters revealed that the siezed items contained shabu.
4
Thereafter, SPO2 Nulud together
with accused-appellant brought these items for further laboratory examination to the Crime
Laboratory at Camp Olivas, San Fernando, Pampanga. After due testing, forensic chemist
S/Insp. Daisy Babor concluded that the crystalline substances yielded positive results for shabu.
The small plastic bag weighed 13.815 grams while the two big plastic bags weighed 1.942
kilograms of shabu.
5

Accused-appellant vehemently denied the accusation against him and narrated a different
version of the incident.
Accused-appellant alleged that on the night in question, he was driving the car of his wife to
follow her and his son to Manila. He felt sleepy, so he decided to take the old route along
McArthur Highway. He stopped in front of a small store near Thunder Inn Hotel in Balibago,
Angeles City to buy cigarettes and candies. While at the store, he noticed a man approach and
examine the inside of his car. When he called the attention of the onlooker, the man immediately
pulled out a .45 caliber gun and made him face his car with raised hands. The man later on
identified himself as a policeman. During the course of the arrest, the policeman took out his
wallet and instructed him to open his car. He refused, so the policeman took his car keys and
proceeded to search his car. At this time, the police officers companions arrived at the scene in
two cars. PO2 Nulud, who just arrived at the scene, pulled him away from his car in a nearby
bank, while the others searched his car.1awphi1.nt
Thereafter, he was brought to the Salakot Police Station and was held inside a bathroom for
about fifteen minutes until Col. Guttierez arrived, who ordered his men to call the media. In the
presence of reporters, Col. Guttierez opened the box and accused-appellant was made to hold the
box while pictures were being taken.
6

Wilfredo Lagman corroborated the story of the accused-appellant in its material points. He
testified that he witnessed the incident while he was conducting a routine security check around
the premises of the Guess Building, near Thunder Inn Hotel.
7

On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59, rendered a
decision,
8
the dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgement is hereby rendered as follows:
1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the accused is
hereby acquitted of the crime charged for insufficiency of evidence.
270

2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of shabu,
accused Binad Sy Chua is found GUILTY beyond reasonable doubt of the crime charge
and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay a fine of
One Million (P1,000,000.00) Pesos.
SO ORDERED.
9

Hence, the instant appeal where accused-appellant raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:
A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS LAWFUL;
B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT CONFISCATION OF
SHABU ALLEGEDLY FOUND ON HIM WERE CONDUCTED IN A LAWFUL AND
VALID MANNER;
C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED IS
SUFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND
REAONABLE DOUBT.
10

Accused-appellant maintains that the warrantless arrest and search made by the police
operatives was unlawful; that in the light of the testimony of SPO2 Nulud that prior to his arrest
he has been under surveillance for two years, there was therefore no compelling reason for the
haste within which the arresting officers sought to arrest and search him without a warrant; that
the police officers had sufficient information about him and could have easily arrested him.
Accused-appellant further argues that since his arrest was null an void, the drugs that were
seized should likewise be inadmissible in evidence since they were obtained in violation of his
constitutional rights against unreasonable search and seizures and arrest.
Accused-appellants argument is impressed with merit.
Although the trial courts evaluation of the credibility of witnesses and their testimonies is
entitled to great respect and will not be disturbed on appeal, however, this rule is not a hard and
fast one.
It is a time-honored rule that the assessment of the trial court with regard to the credibility of
witnesses deserves the utmost respect, if not finality, for the reason that the trial judge has the
prerogative, denied to appellate judges, of observing the demeanor of the declarants in the course
of their testimonies. The only exception is if there is a showing that the trial judge overlooked,
misunderstood, or misapplied some fact or circumstance of weight and substance that would
have affected the case.
11

In the case at bar, there appears on record some facts of weight and substance that have been
overlooked, misapprehended, or misapplied by the trial court which casts doubt on the guilt of
accused-appellant. An appeal in a criminal case opens the whole case for review and this
includes the review of the penalty and indemnity imposed by the trial court.
12
We are clothed
with ample authority to review matters, even those not raised on appeal, if we find that their
consideration is necessary in arriving at a just disposition of the case. Every circumstance in
favor of the accused shall be considered.
13
This is in keeping with the constitutional mandate
that every accused shall be presumed innocent unless his guilt is proven beyond reasonable
doubt.
271

First, with respect to the warrantless arrest and consequent search and seizure made upon
accused-appellant, the court a quo made the following findings:
Accused was searched and arrested while in possession of regulated drugs (shabu). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the
search made upon his personal effects x x x allow a warrantless search incident to a lawful
arrest. x x x x
While it is true that the police officers were not armed with a search warrant when the search
was made over the personal affects (sic) of the accused, however, under the circumstances of the
case, there was sufficient probable cause for said officers to believe that accused was then and
there committing a crime.
x x x x x x x x x
In the present case, the police received information that the accused will distribute illegal drugs
that evening at the Thunder Inn Hotel and its vicinities. The police officer had to act quickly and
there was no more time to secure a search warrant. The search is valid being akin to a "stop and
frisk".
14

A thorough review of the evidence on record belies the findings and conclusion of the trial court.
It confused the two different concepts of a search incidental to a lawful arrest (in flagrante
delicto) and of a "stop-and-frisk."
In Malacat v. Court of Appeals,
15
we distinguished the concepts of a "stop-and-frisk" and of a
search incidental to a lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a
search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the
requisite quantum of proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. In this instance, the law
requires that there first be arrest before a search can be madethe process cannot be reversed.
At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee
and the area within which the latter may reach for a weapon or for evidence to destroy, and seize
any money or property found which was used in the commission of the crime, or the fruit of the
crime, or that which may be used as evidence, or which might furnish the arrestee with the
means of escaping or committing violence.
x x x x x x x x x
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited
protective search of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or others safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable search under the
Fourth amendment.
272

Other notable points of Terry are that while probable cause is not required to conduct a "stop-
and-frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop-and-
frisk". A genuine reason must exist, in light of the police officers experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed about him.
Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.
16
(Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the "stop and frisk" principles is applicable
to justify the warrantless arrest and consequent search and seizure made by the police
operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at the very moment he is committing
or attempting to commit or has just committed an offense in the presence of the arresting officer.
Emphasis should be laid on the fact that the law requires that the search be incidental to a
lawful arrest. Therefore it is beyond cavil that a lawful arrest must precede the search of a
person and his belongings.
17
Accordingly, for this exception to apply two elements must concur:
(1) the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.
18

We find the two aforementioned elements lacking in the case at bar. The record reveals that
when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he merely parked his car
along the McArthur Highway, alighted from it and casually proceeded towards the entrance of
the Hotel clutching a sealed Zest-O juice box. Accused-appellant did not act in a suspicious
manner. For all intents and purposes, there was no overt manifestation that accused-appellant
has just committed, is actually committing, or is attempting to commit a crime.
However, notwithstanding the absence of any overt act strongly manifesting a violation of the
law, the group of SPO2 Nulud "hurriedly accosted"
19
accused-appellant and later on "introduced
themselves as police officers."
20
Accused-appellant was arrested before the alleged drop-off of
shabu was done. Probable cause in this case was more imagined than real. Thus, there could
have been no in flagrante delicto arrest preceding the search, in light of the lack of an overt
physical act on the part of accused-appellant that he had committed a crime, was committing a
crime or was going to commit a crime. As applied to in flagrante delicto arrests, it has been held
that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, is not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest.
21
Hence, in People v. Aminudin,
22
we ruled
that "the accused-appellant was not, at the moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called
for his arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension" (Emphasis
supplied).
The reliance of the prosecution in People v. Tangliben
23
to justify the polices actions is
misplaced. In the said case, based on the information supplied by informers, police officers
conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga
against persons who may commit misdemeanors and also on those who may be engaged in the
traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red
travelling bag who was acting suspiciously. They confronted him and requested him to open his
273

bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag
were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge from the very same
informant of accused-appellants activities. No less than SPO2 Mario Nulud, the team leader of
the arresting operatives, admitted that their informant has been telling them about the activities
of accused-appellant for two years prior to his actual arrest on September 21, 1996. An excerpt
of the testimony of SPO2 Mario Nulud reveals the illegality of the arrest of accused-appellant as
follows:
Q. Did the civilian informer of yours mentioned to you the name of this chinese drug
pusher?
A. He is mentioning the name of Binad or Jojo Chua.
Q. And he had been mentioning these names to you even before September 21, 1996?
A. Yes, sir.
Q. How long did this civilian informant have been telling you about the activities of this
chinese drug pusher reckoning in relation to September 21, 1996?
A. That was about two years already.
Q. Nothwithstanding his two years personal knowledge which you gained from the civilian
informant that this chinese drug pusher have been engaged pushing drugs here in
Angeles City, you did not think of applying for a search warrant for this chinese drug
pusher?
A. No, sir.
x x x x x x x x x
Q. When you accosted this Binad Chua, he was casually walking along the road near the
Thunder Inn Hotel, is that right?
A. He was pinpointed by the civilian informer that he is the chinese drug pusher that will
deliver to him also.
Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the accused in this case he
alighted with a Corolla car with plate number 999, I think, he just alighted when you saw
him?
A. Yes, sir.
Q. From the car when he alighted, he casually walked towards near the entrance of the
Thunder Inn Hotel?
A. He was about to proceed towards Thunder Inn Hotel but he was pinpointed already by
the civilian informer.
Q. But he was just walking towards the entrance of the Thunder Inn Hotel?
274

A. Yes, sir, he is about to enter Thunder Inn Hotel.
x x x x x x x x x
Q. While he was walking, then you and PO2 Nunag pounced on him as you used pounced
on him in your affidavit?
A. Yes, sir.
x x x x x x x x x
Q. And you pounced on Jojo Chua before you saw that alleged small plastic bag, is that
correct?
A. Yes, sir.
Q. And after that you also confiscated this Zesto juice box?
A. Yes, sir.
x x x x x x x x x
Q. But would you agree with me that not all crystalline substance is shabu?
A. No, that is shabu and it is been a long time that we have been tailing the accused that
he is really a drug pusher.
Q. So you have been tailing this accused for quite a long time that you are very sure that
what was brought by him was shabu?
A. Yes, sir.
24

The police operatives cannot feign ignorance of the alleged illegal activities of accused-appellant.
Considering that the identity, address and activities of the suspected culprit was already
ascertained two years previous to the actual arrest, there was indeed no reason why the police
officers could not have obtained a judicial warrant before arresting accused-appellant and
searching his person. Whatever information their civilian asset relayed to them hours before
accused-appellants arrest was not a product of an "on-the-spot" tip which may excuse them
from obtaining a warrant of arrest. Accordingly, the arresting teams contention that their arrest
of accused-appellant was a product of an "on-the-spot" tip is untenable.
In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-and-frisk was
defined as the act of a police officer to stop a citizen on the street, interrogate him, and pat him
for weapon(s)
25
or contraband. The police officer should properly introduce himself and make
initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct,
in order to check the latters outer clothing for possibly concealed weapons.
26
The apprehending
police officer must have a genuine reason, in accordance with the police officers experience and
the surrounding conditions, to warrant the belief that the person to be held has weapons (or
contraband) concealed about him.
27
It should therefore be emphasized that a search and seizure
should precede the arrest for this principle to apply.
28

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of
Appeals.
29
In said case, the policemen chanced upon the accused who had reddish eyes, walking
in a swaying manner, and who appeared to be high on drugs. Thus, we upheld the validity of the
275

search as akin to a "stop-and-frisk." In People v. Solayao,
30
we also found justifiable reason to
"stop-and-frisk" the accused after considering the following circumstances: the drunken
actuations of the accused and his companions, the fact that his companions fled when they saw
the policemen, and the fact that the peace officers were precisely on an intelligence mission to
verify reports that armed persons where roaming the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no valid "stop-and-frisk"
in the case of accused-appellant. To reiterate, accused-appellant was first arrested before the
search and seizure of the alleged illegal items found in his possession. The apprehending police
operative failed to make any initial inquiry into accused-appellants business in the vicinity or
the contents of the Zest-O juice box he was carrying. The apprehending police officers only
introduced themselves when they already had custody of accused-appellant. Besides, at the time
of his arrest, accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence and the law. There
was, therefore, no genuine reasonable ground for the immediacy of accused-appellants arrest.
Obviously, the acts of the police operatives wholly depended on the information given to them by
their confidential informant. Accordingly, before and during that time of the arrest, the arresting
officers had no personal knowledge that accused-appellant had just committed, was committing,
or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred, accused-appellants
warrantless arrest and consequent search would still not be deemed a valid "stop-and frisk". For
a valid "stop-and-frisk" the search and seizure must precede the arrest, which is not so in this
case. Besides, as we have earlier emphasized, the information about the illegal activities of
accused-appellant was not unknown to the apprehending officers. Hence, the search and seizure
of the prohibited drugs cannot be deemed as a valid "stop-and-frisk".
Neither can there be valid seizure in plain view on the basis of the seized items found in accused-
appellants possession. First, there was no valid intrusion. Second, the evidence, i.e., the plastic
bags found in the Zest-O juice box which contained crystalline substances later on identified as
methamphetamine hydrochloride (shabu) and the 20 rounds of .22 caliber ammunition, were not
inadvertently discovered. The police officers first arrested accused-appellant and intentionally
searched his person and peeked into the sealed Zest-O juice box before they were able to see and
later on ascertain that the crystalline substance was shabu. There was no clear showing that the
sealed Zest-O juice box accused-appellant carried contained prohibited drugs. Neither were the
small plastic bags which allegedly contained crystalline substance and the 20 rounds of .22
caliber ammunition visible. These prohibited substances were not in plain view of the arresting
officers; hence, inadmissible for being the fruits of the poisonous tree.
In like manner, the search cannot be categorized as a search of a moving vehicle, a consented
warrantless search, or a customs search. It cannot even fall under exigent and emergency
circumstances, for the evidence at hand is bereft of any such showing.1a\^/phi1.net
All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much
more cure, the illegality of the arrest and consequent warrantless search of accused-appellant.
Neither can the presumption of regularity of performance of function be invoked by an officer in
aid of the process when he undertakes to justify an encroachment of rights secured by the
Constitution.
31
In People v. Nubla,
32
we clearly stated that:
The presumption of regularity in the performance of official duty cannot be used as basis for
affirming accused-appellants conviction because, first, the presumption is precisely just that a
mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as
binding truth. Second, the presumption of regularity in the performance of official functions
276

cannot preponderate over the presumption of innocence that prevails if not overthrown by proof
beyond reasonable doubt.
Furthermore, we entertain doubts whether the items allegedly seized from accused-appellant
were the very same items presented at the trial of this case. The record shows that the initial
field test where the items seized were identified as shabu, was only conducted at the PNP
headquarters of Angeles City.
33
The items were therefore not marked at the place where they
were taken. In People v. Casimiro,
34
we struck down with disbelief the reliability of the identity of
the confiscated items since they were not marked at the place where they were seized, thus:
The narcotics field test, which initially identified the seized item as marijuana, was likewise not
conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable
doubt as to whether the item allegedly seized from accused-appellant is the same brick of
marijuana marked by the policemen in their headquarters and given by them to the crime
laboratory.
The governments drive against illegal drugs needs the support of every citizen. But it should not
undermine the fundamental rights of every citizen as enshrined in the Constitution. The
constitutional guarantee against warrantless arrests and unreasonable searches and seizures
cannot be so carelessly disregarded as overzealous police officers are sometimes wont to do.
Fealty to the constitution and the rights it guarantees should be paramount in their minds,
otherwise their good intentions will remain as such simply because they have blundered. The
criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or worse, its disregard of the
charter of its own existence.
35

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Angeles City,
Branch 59, in Criminal Cases Nos. 96-507 and 96-513, convicting accused-appellant Binad Sy
Chua of violation of Section 16, Article III, Republic Act No. 6425 and sentencing him to suffer
the penalty of reclusion perpetua and to pay a fine of P1,000,000.00, is REVERSED and SET
ASIDE. Accused-appellant Binad Sy Chua is ACQUITTED on the ground of reasonable doubt.
Consequently, he is ordered forthwith released from custody, unless he is being lawfully held for
another crime.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio and Azcuna. JJ., concur.


Footnotes
1
Records, Volume 1, p. 1.
2
Ibid., p. 12.
3
TSN, January 7, 1998, pp. 4-10; TSN, April 21, 1998, pp. 5-9.
4
TSN, April 21, 1998, pp. 9-10.
5
Records, Vol. 2, p. 306.
6
TSN, July 2, 1998, pp. 3-8.
277

7
TSN, August 5, 1998, pp. 5-19.
8
Penned by Judge Eliezer R. De Los Santos now Associate Justice of the Court of
Appeals.
9
Rollo, p. 26.
10
Ibid., pp. 40-41.
11
People v. Alvarado, G.R. No. 145730, March 19, 2002, citing People v. De Los Santos,
355 SCRA 301 (2001); People v. Osing, 349 SCRA 310 (2001).
12
People v. Leones, G.R. Nos. 128514 & 143856-61, October 3, 2001.
13
People v. Manambit, 271 SCRA 344, 385-386 (1997), citing Heirs of Crisanta Y.
Gabriel-Almoradie v. CA, 229 SCRA 15 (1994) and People v. Villagracia, 226 SCRA 374,
381(1993).
14
Rollo, pp. 470, 473-474; RTC Decision, pp. 7, 10-11.
15
283 SCRA 159 (1997).
16
Ibid, pp. 175-177.
17
People v. Aruta, 288 SCRA 626, 643 (1998).
18
Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria, 301 SCRA
668, 720 (1999).
19
TSN, January 7, 1998, p. 8.
20
Ibid.
21
People v. Molina, 352 SCRA 174, 183 (2001).
22
163 SCRA 402, 409-410(1988).
23
184 SCRA 220, 221-222 (1990).
24
TSN, January 27, 1998, pp. 8-13.
25
Manalili v. CA, 280 SCRA 400, 411 (1997).
26
Concurring Opinion of Justice Artemio Panganiban in People v. Doria, 301 SCRA 668,
729 (1999).
27
Malacat v. CA, supra, p. 177.
28
Posadas v. CA, 188 SCRA 288, 292 (1990).
29
280 SCRA 400 (1997).
278

30
262 SCRA 255 (1996).
31
People v. Salanguit, 356 SCRA 683, 702 (2001), citing Nolasco v. Pao, 139 SCRA 152
(1985).
32
G.R. No. 129376, May 29, 2002, citing People v. Ruiz, G.R. Nos. 135679 and 137375,
October 10, 2001.
33
TSN, January 7, 1998, pp. 10-12.
34
G.R. No. 146277, June 20, 2002.
35
People v. Sagaysay, 308 SCRA 432, 454 (1999).



















279

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. Nos. 136066-67 February 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BINAD SY CHUA, accused-appellant.

D E C I S I O N
YNARES-SANTIAGO, J.:
Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article III of R.A.
6425, as amended by R.A. 7659, and for Illegal Possession of ammunitions in two separate
Informations which read as follows:
Criminal Case No. 96-507
1

That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession and under his control two (2) plastic bags
containing Methamphetamine Hydrochloride (SHABU) weighing more or less two (2) kilos and
one (1) small plastic bag containing Methamphetamine Hydrocloride weighing more or less fifteen
(15) grams, which is a regulated drug, without any authority whatsoever.
Criminal Case No. 96-513
2

That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession and under his control twenty (20) pieces of live
.22 cal. ammunitions, without first having obtained a license or permit to possess or carry the
same.
Accused-appellant pleaded "not guilty" on arraignment.1awphi1.nt The two cases were then
jointly tried.
The prosecution presented three (3) witnesses, all members of the police force of Angeles City.
Their testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2
Emmeraldo Nunag received a report from their confidential informant that accused-appellant
was about to deliver drugs that night at the Thunder Inn Hotel in Balibago, Angeles City. The
informer further reported that accused-appellant distributes illegal drugs in different karaoke
bars in Angeles City. On the basis of this lead, the PNP Chief of Angeles City, Col. Neopito
280

Gutierrez, immediately formed a team of operatives composed of Major Bernardino, Insp. Tullao,
Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets,
with SPO2 Mario Nulud, as team investigator. The group of SPO2 Nulud, PO2 Nunag and the
civilian informer positioned themselves across McArthur Highway near Bali Hai Restaurant,
fronting Thunder Inn Hotel. The other group acted as their back up.
At around 11:45 in the evening, their informer pointed to a car driven by accused-appellant
which just arrived and parked near the entrance of the Thunder Inn Hotel. After accused-
appellant alighted from the car carrying a sealed Zest-O juice box, SPO2 Nulud and PO2 Nunag
hurriedly accosted him and introduced themselves as police officers. As accused-appellant pulled
out his wallet, a small transparent plastic bag with a crystalline substance protruded from his
right back pocket. Forthwith, SPO2 Nulud subjected him to a body search which yielded twenty
(20) pieces of live .22 caliber firearm bullets from his left back pocket. When SPO2 Nunag peeked
into the contents of the Zest-O box, he saw that it contained a crystalline substance. SPO2
Nulud instantly confiscated the small transparent plastic bag, the Zest-O juice box, the twenty
(20) pieces of .22 caliber firearm bullets and the car used by accused-appellant. Afterwards,
SPO2 Nulud and the other police operatives who arrived at the scene brought the confiscated
items to the office of Col. Guttierez at the PNP Headquarters in Camp Pepito, Angeles City.
3

When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags containing
crystalline substances. The initial field test conducted by SPO2 Danilo Cruz at the PNP
Headquarters revealed that the siezed items contained shabu.
4
Thereafter, SPO2 Nulud together
with accused-appellant brought these items for further laboratory examination to the Crime
Laboratory at Camp Olivas, San Fernando, Pampanga. After due testing, forensic chemist
S/Insp. Daisy Babor concluded that the crystalline substances yielded positive results for shabu.
The small plastic bag weighed 13.815 grams while the two big plastic bags weighed 1.942
kilograms of shabu.
5

Accused-appellant vehemently denied the accusation against him and narrated a different
version of the incident.
Accused-appellant alleged that on the night in question, he was driving the car of his wife to
follow her and his son to Manila. He felt sleepy, so he decided to take the old route along
McArthur Highway. He stopped in front of a small store near Thunder Inn Hotel in Balibago,
Angeles City to buy cigarettes and candies. While at the store, he noticed a man approach and
examine the inside of his car. When he called the attention of the onlooker, the man immediately
pulled out a .45 caliber gun and made him face his car with raised hands. The man later on
identified himself as a policeman. During the course of the arrest, the policeman took out his
wallet and instructed him to open his car. He refused, so the policeman took his car keys and
proceeded to search his car. At this time, the police officers companions arrived at the scene in
two cars. PO2 Nulud, who just arrived at the scene, pulled him away from his car in a nearby
bank, while the others searched his car.1awphi1.nt
Thereafter, he was brought to the Salakot Police Station and was held inside a bathroom for
about fifteen minutes until Col. Guttierez arrived, who ordered his men to call the media. In the
presence of reporters, Col. Guttierez opened the box and accused-appellant was made to hold the
box while pictures were being taken.
6

Wilfredo Lagman corroborated the story of the accused-appellant in its material points. He
testified that he witnessed the incident while he was conducting a routine security check around
the premises of the Guess Building, near Thunder Inn Hotel.
7

On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59, rendered a
decision,
8
the dispositive portion of which reads:
281

WHEREFORE, the foregoing considered, judgement is hereby rendered as follows:
1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the accused is
hereby acquitted of the crime charged for insufficiency of evidence.
2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of shabu,
accused Binad Sy Chua is found GUILTY beyond reasonable doubt of the crime charge
and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay a fine of
One Million (P1,000,000.00) Pesos.
SO ORDERED.
9

Hence, the instant appeal where accused-appellant raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:
A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS LAWFUL;
B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT CONFISCATION OF
SHABU ALLEGEDLY FOUND ON HIM WERE CONDUCTED IN A LAWFUL AND
VALID MANNER;
C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED IS
SUFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND
REAONABLE DOUBT.
10

Accused-appellant maintains that the warrantless arrest and search made by the police
operatives was unlawful; that in the light of the testimony of SPO2 Nulud that prior to his arrest
he has been under surveillance for two years, there was therefore no compelling reason for the
haste within which the arresting officers sought to arrest and search him without a warrant; that
the police officers had sufficient information about him and could have easily arrested him.
Accused-appellant further argues that since his arrest was null an void, the drugs that were
seized should likewise be inadmissible in evidence since they were obtained in violation of his
constitutional rights against unreasonable search and seizures and arrest.
Accused-appellants argument is impressed with merit.
Although the trial courts evaluation of the credibility of witnesses and their testimonies is
entitled to great respect and will not be disturbed on appeal, however, this rule is not a hard and
fast one.
It is a time-honored rule that the assessment of the trial court with regard to the credibility of
witnesses deserves the utmost respect, if not finality, for the reason that the trial judge has the
prerogative, denied to appellate judges, of observing the demeanor of the declarants in the course
of their testimonies. The only exception is if there is a showing that the trial judge overlooked,
misunderstood, or misapplied some fact or circumstance of weight and substance that would
have affected the case.
11

In the case at bar, there appears on record some facts of weight and substance that have been
overlooked, misapprehended, or misapplied by the trial court which casts doubt on the guilt of
accused-appellant. An appeal in a criminal case opens the whole case for review and this
includes the review of the penalty and indemnity imposed by the trial court.
12
We are clothed
with ample authority to review matters, even those not raised on appeal, if we find that their
consideration is necessary in arriving at a just disposition of the case. Every circumstance in
282

favor of the accused shall be considered.
13
This is in keeping with the constitutional mandate
that every accused shall be presumed innocent unless his guilt is proven beyond reasonable
doubt.
First, with respect to the warrantless arrest and consequent search and seizure made upon
accused-appellant, the court a quo made the following findings:
Accused was searched and arrested while in possession of regulated drugs (shabu). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the
search made upon his personal effects x x x allow a warrantless search incident to a lawful
arrest. x x x x
While it is true that the police officers were not armed with a search warrant when the search
was made over the personal affects (sic) of the accused, however, under the circumstances of the
case, there was sufficient probable cause for said officers to believe that accused was then and
there committing a crime.
x x x x x x x x x
In the present case, the police received information that the accused will distribute illegal drugs
that evening at the Thunder Inn Hotel and its vicinities. The police officer had to act quickly and
there was no more time to secure a search warrant. The search is valid being akin to a "stop and
frisk".
14

A thorough review of the evidence on record belies the findings and conclusion of the trial court.
It confused the two different concepts of a search incidental to a lawful arrest (in flagrante
delicto) and of a "stop-and-frisk."
In Malacat v. Court of Appeals,
15
we distinguished the concepts of a "stop-and-frisk" and of a
search incidental to a lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a
search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the
requisite quantum of proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. In this instance, the law
requires that there first be arrest before a search can be madethe process cannot be reversed.
At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee
and the area within which the latter may reach for a weapon or for evidence to destroy, and seize
any money or property found which was used in the commission of the crime, or the fruit of the
crime, or that which may be used as evidence, or which might furnish the arrestee with the
means of escaping or committing violence.
x x x x x x x x x
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited
protective search of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a policeman and makes reasonable inquiries,
283

and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or others safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable search under the
Fourth amendment.
Other notable points of Terry are that while probable cause is not required to conduct a "stop-
and-frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop-and-
frisk". A genuine reason must exist, in light of the police officers experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed about him.
Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.
16
(Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the "stop and frisk" principles is applicable
to justify the warrantless arrest and consequent search and seizure made by the police
operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at the very moment he is committing
or attempting to commit or has just committed an offense in the presence of the arresting officer.
Emphasis should be laid on the fact that the law requires that the search be incidental to a
lawful arrest. Therefore it is beyond cavil that a lawful arrest must precede the search of a
person and his belongings.
17
Accordingly, for this exception to apply two elements must concur:
(1) the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.
18

We find the two aforementioned elements lacking in the case at bar. The record reveals that
when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he merely parked his car
along the McArthur Highway, alighted from it and casually proceeded towards the entrance of
the Hotel clutching a sealed Zest-O juice box. Accused-appellant did not act in a suspicious
manner. For all intents and purposes, there was no overt manifestation that accused-appellant
has just committed, is actually committing, or is attempting to commit a crime.
However, notwithstanding the absence of any overt act strongly manifesting a violation of the
law, the group of SPO2 Nulud "hurriedly accosted"
19
accused-appellant and later on "introduced
themselves as police officers."
20
Accused-appellant was arrested before the alleged drop-off of
shabu was done. Probable cause in this case was more imagined than real. Thus, there could
have been no in flagrante delicto arrest preceding the search, in light of the lack of an overt
physical act on the part of accused-appellant that he had committed a crime, was committing a
crime or was going to commit a crime. As applied to in flagrante delicto arrests, it has been held
that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, is not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest.
21
Hence, in People v. Aminudin,
22
we ruled
that "the accused-appellant was not, at the moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called
for his arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension" (Emphasis
supplied).
284

The reliance of the prosecution in People v. Tangliben
23
to justify the polices actions is
misplaced. In the said case, based on the information supplied by informers, police officers
conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga
against persons who may commit misdemeanors and also on those who may be engaged in the
traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red
travelling bag who was acting suspiciously. They confronted him and requested him to open his
bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag
were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge from the very same
informant of accused-appellants activities. No less than SPO2 Mario Nulud, the team leader of
the arresting operatives, admitted that their informant has been telling them about the activities
of accused-appellant for two years prior to his actual arrest on September 21, 1996. An excerpt
of the testimony of SPO2 Mario Nulud reveals the illegality of the arrest of accused-appellant as
follows:
Q. Did the civilian informer of yours mentioned to you the name of this chinese drug
pusher?
A. He is mentioning the name of Binad or Jojo Chua.
Q. And he had been mentioning these names to you even before September 21, 1996?
A. Yes, sir.
Q. How long did this civilian informant have been telling you about the activities of this
chinese drug pusher reckoning in relation to September 21, 1996?
A. That was about two years already.
Q. Nothwithstanding his two years personal knowledge which you gained from the civilian
informant that this chinese drug pusher have been engaged pushing drugs here in
Angeles City, you did not think of applying for a search warrant for this chinese drug
pusher?
A. No, sir.
x x x x x x x x x
Q. When you accosted this Binad Chua, he was casually walking along the road near the
Thunder Inn Hotel, is that right?
A. He was pinpointed by the civilian informer that he is the chinese drug pusher that will
deliver to him also.
Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the accused in this case he
alighted with a Corolla car with plate number 999, I think, he just alighted when you saw
him?
A. Yes, sir.
Q. From the car when he alighted, he casually walked towards near the entrance of the
Thunder Inn Hotel?
285

A. He was about to proceed towards Thunder Inn Hotel but he was pinpointed already by
the civilian informer.
Q. But he was just walking towards the entrance of the Thunder Inn Hotel?
A. Yes, sir, he is about to enter Thunder Inn Hotel.
x x x x x x x x x
Q. While he was walking, then you and PO2 Nunag pounced on him as you used pounced
on him in your affidavit?
A. Yes, sir.
x x x x x x x x x
Q. And you pounced on Jojo Chua before you saw that alleged small plastic bag, is that
correct?
A. Yes, sir.
Q. And after that you also confiscated this Zesto juice box?
A. Yes, sir.
x x x x x x x x x
Q. But would you agree with me that not all crystalline substance is shabu?
A. No, that is shabu and it is been a long time that we have been tailing the accused that
he is really a drug pusher.
Q. So you have been tailing this accused for quite a long time that you are very sure that
what was brought by him was shabu?
A. Yes, sir.
24

The police operatives cannot feign ignorance of the alleged illegal activities of accused-appellant.
Considering that the identity, address and activities of the suspected culprit was already
ascertained two years previous to the actual arrest, there was indeed no reason why the police
officers could not have obtained a judicial warrant before arresting accused-appellant and
searching his person. Whatever information their civilian asset relayed to them hours before
accused-appellants arrest was not a product of an "on-the-spot" tip which may excuse them
from obtaining a warrant of arrest. Accordingly, the arresting teams contention that their arrest
of accused-appellant was a product of an "on-the-spot" tip is untenable.
In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-and-frisk was
defined as the act of a police officer to stop a citizen on the street, interrogate him, and pat him
for weapon(s)
25
or contraband. The police officer should properly introduce himself and make
initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct,
in order to check the latters outer clothing for possibly concealed weapons.
26
The apprehending
police officer must have a genuine reason, in accordance with the police officers experience and
the surrounding conditions, to warrant the belief that the person to be held has weapons (or
286

contraband) concealed about him.
27
It should therefore be emphasized that a search and seizure
should precede the arrest for this principle to apply.
28

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of
Appeals.
29
In said case, the policemen chanced upon the accused who had reddish eyes, walking
in a swaying manner, and who appeared to be high on drugs. Thus, we upheld the validity of the
search as akin to a "stop-and-frisk." In People v. Solayao,
30
we also found justifiable reason to
"stop-and-frisk" the accused after considering the following circumstances: the drunken
actuations of the accused and his companions, the fact that his companions fled when they saw
the policemen, and the fact that the peace officers were precisely on an intelligence mission to
verify reports that armed persons where roaming the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no valid "stop-and-frisk"
in the case of accused-appellant. To reiterate, accused-appellant was first arrested before the
search and seizure of the alleged illegal items found in his possession. The apprehending police
operative failed to make any initial inquiry into accused-appellants business in the vicinity or
the contents of the Zest-O juice box he was carrying. The apprehending police officers only
introduced themselves when they already had custody of accused-appellant. Besides, at the time
of his arrest, accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence and the law. There
was, therefore, no genuine reasonable ground for the immediacy of accused-appellants arrest.
Obviously, the acts of the police operatives wholly depended on the information given to them by
their confidential informant. Accordingly, before and during that time of the arrest, the arresting
officers had no personal knowledge that accused-appellant had just committed, was committing,
or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred, accused-appellants
warrantless arrest and consequent search would still not be deemed a valid "stop-and frisk". For
a valid "stop-and-frisk" the search and seizure must precede the arrest, which is not so in this
case. Besides, as we have earlier emphasized, the information about the illegal activities of
accused-appellant was not unknown to the apprehending officers. Hence, the search and seizure
of the prohibited drugs cannot be deemed as a valid "stop-and-frisk".
Neither can there be valid seizure in plain view on the basis of the seized items found in accused-
appellants possession. First, there was no valid intrusion. Second, the evidence, i.e., the plastic
bags found in the Zest-O juice box which contained crystalline substances later on identified as
methamphetamine hydrochloride (shabu) and the 20 rounds of .22 caliber ammunition, were not
inadvertently discovered. The police officers first arrested accused-appellant and intentionally
searched his person and peeked into the sealed Zest-O juice box before they were able to see and
later on ascertain that the crystalline substance was shabu. There was no clear showing that the
sealed Zest-O juice box accused-appellant carried contained prohibited drugs. Neither were the
small plastic bags which allegedly contained crystalline substance and the 20 rounds of .22
caliber ammunition visible. These prohibited substances were not in plain view of the arresting
officers; hence, inadmissible for being the fruits of the poisonous tree.
In like manner, the search cannot be categorized as a search of a moving vehicle, a consented
warrantless search, or a customs search. It cannot even fall under exigent and emergency
circumstances, for the evidence at hand is bereft of any such showing.1a\^/phi1.net
All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much
more cure, the illegality of the arrest and consequent warrantless search of accused-appellant.
Neither can the presumption of regularity of performance of function be invoked by an officer in
aid of the process when he undertakes to justify an encroachment of rights secured by the
Constitution.
31
In People v. Nubla,
32
we clearly stated that:
287

The presumption of regularity in the performance of official duty cannot be used as basis for
affirming accused-appellants conviction because, first, the presumption is precisely just that a
mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as
binding truth. Second, the presumption of regularity in the performance of official functions
cannot preponderate over the presumption of innocence that prevails if not overthrown by proof
beyond reasonable doubt.
Furthermore, we entertain doubts whether the items allegedly seized from accused-appellant
were the very same items presented at the trial of this case. The record shows that the initial
field test where the items seized were identified as shabu, was only conducted at the PNP
headquarters of Angeles City.
33
The items were therefore not marked at the place where they
were taken. In People v. Casimiro,
34
we struck down with disbelief the reliability of the identity of
the confiscated items since they were not marked at the place where they were seized, thus:
The narcotics field test, which initially identified the seized item as marijuana, was likewise not
conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable
doubt as to whether the item allegedly seized from accused-appellant is the same brick of
marijuana marked by the policemen in their headquarters and given by them to the crime
laboratory.
The governments drive against illegal drugs needs the support of every citizen. But it should not
undermine the fundamental rights of every citizen as enshrined in the Constitution. The
constitutional guarantee against warrantless arrests and unreasonable searches and seizures
cannot be so carelessly disregarded as overzealous police officers are sometimes wont to do.
Fealty to the constitution and the rights it guarantees should be paramount in their minds,
otherwise their good intentions will remain as such simply because they have blundered. The
criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or worse, its disregard of the
charter of its own existence.
35

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Angeles City,
Branch 59, in Criminal Cases Nos. 96-507 and 96-513, convicting accused-appellant Binad Sy
Chua of violation of Section 16, Article III, Republic Act No. 6425 and sentencing him to suffer
the penalty of reclusion perpetua and to pay a fine of P1,000,000.00, is REVERSED and SET
ASIDE. Accused-appellant Binad Sy Chua is ACQUITTED on the ground of reasonable doubt.
Consequently, he is ordered forthwith released from custody, unless he is being lawfully held for
another crime.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio and Azcuna. JJ., concur.


Footnotes
1
Records, Volume 1, p. 1.
2
Ibid., p. 12.
3
TSN, January 7, 1998, pp. 4-10; TSN, April 21, 1998, pp. 5-9.
4
TSN, April 21, 1998, pp. 9-10.
288

5
Records, Vol. 2, p. 306.
6
TSN, July 2, 1998, pp. 3-8.
7
TSN, August 5, 1998, pp. 5-19.
8
Penned by Judge Eliezer R. De Los Santos now Associate Justice of the Court of
Appeals.
9
Rollo, p. 26.
10
Ibid., pp. 40-41.
11
People v. Alvarado, G.R. No. 145730, March 19, 2002, citing People v. De Los Santos,
355 SCRA 301 (2001); People v. Osing, 349 SCRA 310 (2001).
12
People v. Leones, G.R. Nos. 128514 & 143856-61, October 3, 2001.
13
People v. Manambit, 271 SCRA 344, 385-386 (1997), citing Heirs of Crisanta Y.
Gabriel-Almoradie v. CA, 229 SCRA 15 (1994) and People v. Villagracia, 226 SCRA 374,
381(1993).
14
Rollo, pp. 470, 473-474; RTC Decision, pp. 7, 10-11.
15
283 SCRA 159 (1997).
16
Ibid, pp. 175-177.
17
People v. Aruta, 288 SCRA 626, 643 (1998).
18
Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria, 301 SCRA
668, 720 (1999).
19
TSN, January 7, 1998, p. 8.
20
Ibid.
21
People v. Molina, 352 SCRA 174, 183 (2001).
22
163 SCRA 402, 409-410(1988).
23
184 SCRA 220, 221-222 (1990).
24
TSN, January 27, 1998, pp. 8-13.
25
Manalili v. CA, 280 SCRA 400, 411 (1997).
26
Concurring Opinion of Justice Artemio Panganiban in People v. Doria, 301 SCRA 668,
729 (1999).
27
Malacat v. CA, supra, p. 177.
289

28
Posadas v. CA, 188 SCRA 288, 292 (1990).
29
280 SCRA 400 (1997).
30
262 SCRA 255 (1996).
31
People v. Salanguit, 356 SCRA 683, 702 (2001), citing Nolasco v. Pao, 139 SCRA 152
(1985).
32
G.R. No. 129376, May 29, 2002, citing People v. Ruiz, G.R. Nos. 135679 and 137375,
October 10, 2001.
33
TSN, January 7, 1998, pp. 10-12.
34
G.R. No. 146277, June 20, 2002.
35
People v. Sagaysay, 308 SCRA 432, 454 (1999).



















290

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. L-24646 & L-24674 June 20, 1977
FAUSTINA CALLANTA, petitioner,
vs.
HON. FELIPE VILLANUEVA, City Judge, City Court of Dagupan City, CORNELIA JIMENEZ
and PASTORA DAVID JIMENEZ, respondents.
Jose F. Apilado for petitioner.
Vicente D. Millora & Rodolfo L. Urbiztondo for respondents.

FERNANDO, J.:
The denial by respondent City Judge Felipe Villanueva of Dagupan City to grant the motions to
quash the two complaints for grave oral defamation against petitioner gave rise to these suits for
certiorari, the validity of the issuance of the warrants of arrest by respondent City Judge Felipe
Villanueva of Dagupan City
1
being contested on the ground that it should have been the City
Fiscal who should have conducted the preliminary examination. There was then, in the opinion
of petitioner's counsel, a jurisdictional infirmity. From the very petition itself, however, it was
shown that after such issuance of the warrants of arrest with the bail fixed in the amount of
P600.00, petitioner posted such required bail bonds, thus obtaining her provisional
liberty.
2
Moreover, in the answer of respondents, it was expressly set forth: "The City Fiscal has
shown intent to prosecute the petitioner in the Criminal Cages Nos. 9298 and 9375. As early as
February 25, 1965, after conducting his preliminary examination and after acquiring jurisdiction
over the petitioner the respondent Court referred the complaints in Criminal Cases Nos. 9298
and 9375 to the City Fiscal. ... So that on March 4, 1965, the arraignment and hearing of the
cases were postponed because the City Fiscal was investigating them. ... It may also be noted
that at the proceedings in said criminal cases on April 20, 1965, the Fiscal entered his
appearance for the government and manifested that he was ready for trial. If the Fiscal did not
agree with the Judge in the latter's investigation of the case, he would have asked for a further
reinvestigation of the cases. But the City Fiscal did not. On the other hand the Fiscal appeared at
the proceedings to prosecute the petitioner, indicating that he was in agreement with the
complaint already filed."
3
There was no denial thereof by petitioner.
On the above facts, certiorari does not lie.
1. With the express admission by petitioner that she had posted the required bail to obtain her
provisional liberty, it becomes futile to assail the validity of the issuance of the warrants of
arrest. This excerpt from the opinion of Justice Sanchez in Zacarias v. Cruz,
4
finds pertinence:
"Posting of a bail bond constitutes waiver of any irregularity attending the arrest of a person,
stop him from discussing the validity of his arrest. In the recent case of Luna v. Plaza ..., our
ruling is that where petitioner has filed an application for bail and waived the preliminary
investigation proper, 'he waived his objection to whatever defect, if any, in the preliminary
examination conducted... prior to the issuance of the warrant of arrest.'"
5
As a matter of fact,
such a doctrine goes back to People v. Olandag,
6
the opinion being rendered by former Chief
Justice Paras. After Zacarias, mention may be made of three other decisions, Bermejo v.
Barrios;
7
People v. La Caste
8
and Manzano v. Villa.
9
The latest case in point isPeople v.
291

Obngayan
10
where this Court, through Justice Antonio, after referring to Luna v. Plaza, again
reiterated the ruling "that where the accused has filed bail and waived the preliminary
investigation proper, he has waived whatever defect, if any, in the preliminary examination
conducted prior to the issuance of the warrant of arrest.'"
11
At any rate, it cannot be denied that
the City Fiscal of Dagupan City had been quite active in the investigation and thereafter in the
prosecution of petitioner. The matter was referred to his office. It was he who appeared at the
hearing and manifested his readiness to proceed with the trial. It would be then to pay an undue
premium to technicalities to assert that under such circumstances the procedural requisite,
assuming that the contention of petitioner is correct, of such official conducting the preliminary
examination was not in fact complied with.
2. Nor can it be concluded that there is justification for the tone of certainty of counsel for
petitioner that only the City Fiscal of Dagupan may conduct a preliminary examination.
Apparently, he had in mind Sayo v. Chief of Police of Manila.
12
That was a decision involving the
Charter of the City of Manila, The opinion of Justice Feria did State the following: "Under the law,
a complaint charging a person of commission of an offense cognizable by the courts of Manila is
not filed with the municipal court or the Court of First Instance of Manila, because as above
stated the latter do not make or conduct preliminary investigation ...."
13
Such a doctrine is
inapplicable. The reliance is, therefore, misplaced. The Charter of the City of Dagupan cannot be
any clearer. The City Court of Dagupan City "may also conduct preliminary investigation for any
offense, without regard to the limits of punishment, and may release, or commit and bind over
any person charged with such offense to secure his appearance before the proper court."
14

WHEREFORE, these petitions for certiorari are dismissed. The restraining order issued by this
Court is lifted and set aside. Costs against petitioner.
Barredo and Fernandez, JJ., concur.
Concepcion Jr., J, is on leave.


Separate Opinions

AQUINO, J.:, concuring:
I concur because section 77 of the Dagupan City charter expressly empowers its city court
(formerly municipal court) to 4 conduct preliminary investigation for any offense, without regard
to the limits of punishment". (See sec. 24[f]) as to city attorney's power to conduct preliminary
investigations).
It should be noted that that provision is also found in section 87 of the Judiciary Law and in
section 2, Rule 112 of the Rules of Court which provides that "every justice of the peace,
municipal judge (meaning city judge), city or provincial fiscal, shall have authority to conduct
preliminary examination or investigation in accordance with these rules of all offenses alleged to
have been committed within his municipality, city or province, cognizable by the Court of First
Instance" (this provision is not correctly reproduced in some legal publications).
292

It is also found in the last sentence of section 41 of Republic Act No. 409, the Revised Charter of
Manila, which took effect on June 18, 1949 or after Sayo vs. Chief of Police of Manila, 80 Phil.
859 was decided.
But that provision is not found in Commonwealth Act No. 326, the charter of Bacolod City, under
which Montelibano vs. Ferrer, 97 Phil. 228 was decided nor in the old Manila charter found in
the Revised Administrative Code.
Hence, in the Sayo and Montelibano cases, it was held that the city court could not conduct
preliminary investigations.
Separate Opinions
AQUINO, J.:, concuring:
I concur because section 77 of the Dagupan City charter expressly empowers its city court
(formerly municipal court) to 4 conduct preliminary investigation for any offense, without regard
to the limits of punishment". (See sec. 24[f]) as to city attorney's power to conduct preliminary
investigations).
It should be noted that that provision is also found in section 87 of the Judiciary Law and in
section 2, Rule 112 of the Rules of Court which provides that "every justice of the peace,
municipal judge (meaning city judge), city or provincial fiscal, shall have authority to conduct
preliminary examination or investigation in accordance with these rules of all offenses alleged to
have been committed within his municipality, city or province, cognizable by the Court of First
Instance" (this provision is not correctly reproduced in some legal publications).
It is also found in the last sentence of section 41 of Republic Act No. 409, the Revised Charter of
Manila, which took effect on June 18, 1949 or after Sayo vs. Chief of Police of Manila, 80 Phil.
859 was decided.
But that provision is not found in Commonwealth Act No. 326, the charter of Bacolod City, under
which Montelibano vs. Ferrer, 97 Phil. 228 was decided nor in the old Manila charter found in
the Revised Administrative Code.
Hence, in the Sayo and Montelibano cases, it was held that the city court could not conduct
preliminary investigations.
Footnotes
1 The private respondent are Cornelia Jimenez and Pastora David Jimenez.
2 Petition, par. 7.
3 Answer, 7.
4 L-25899, November 29, 1969, 30 SCRA 728.
5 Ibid, 730. Luna v. Plaza, L-27511, Nov. 29, 1968 is reported in 26 SCRA 310.
6 92 Phil. 286 (1952).
7 L-23614, February 27, 1970, 31 SCRA 764.
8 L-29083, February 27, 1971, 37 SCRA 767.
9 L-27018, August 30, 1972, 46 SCRA 711.
10 L-29201, January 31, 1974, 55 SCRA 465.
11 Ibid, 471.
12 80 Phil. 859 (1948),
13 Ibid, 869. Cf. Montelibano v. Ferrer, 97 Phil. 228 (1955).
14 Section 77, Article XIII, Republic Act No. 170 (1947).


293

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 89139 August 2, 1990
ROMEO POSADAS y ZAMORA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
Rudy G. Agravate for petitioner.

GANCAYCO, J.:
The validity of a warrantless search on the person of petitioner is put into issue in this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra
Umpar, both members of the Integrated National Police (INP) of the Davao Metrodiscom assigned
with the Intelligence Task Force, were conducting a surveillance along Magallanes Street, Davao
City. While they were within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the INP. Petitioner
attempted to flee but his attempt to get away was thwarted by the two notwithstanding his
resistance.
They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith &
Wesson revolver with Serial No. 770196
1
two (2) rounds of live ammunition for a .38 caliber
gun
2
a smoke (tear gas) grenade,
3
and two (2) live ammunitions for a .22 caliber gun.
4
They
brought the petitioner to the police station for further investigation. In the course of the same,
the petitioner was asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to the Davao
Metrodiscom office and the prohibited articles recovered from him were indorsed to M/Sgt. Didoy
the officer then on duty. He was prosecuted for illegal possession of firearms and ammunitions in
the Regional Trial Court of Davao City wherein after a plea of not guilty and trial on the merits a
decision was rendered on October 8, 1987 finding petitioner guilty of the offense charged as
follows:
WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty
beyond reasonable doubt of the offense charged.
It appearing that the accuse d was below eighteen (18) years old at the time of the
commission of the offense (Art. 68, par. 2), he is hereby sentenced to an
indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision
mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11) days of Reclusion
Temporal, and to pay the costs.
294

The firearm, ammunitions and smoke grenade are forfeited in favor of the
government and the Branch Clerk of Court is hereby directed to turn over said
items to the Chief, Davao Metrodiscom, Davao City.
5

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due
course a decision was rendered on February 23, 1989 affirming in toto the appealed decision with
costs against the petitioner.
6

Hence, the herein petition for review, the main thrust of which is that there being no lawful
arrest or search and seizure, the items which were confiscated from the possession of the
petitioner are inadmissible in evidence against him.
The Solicitor General, in justifying the warrantless search of the buri bag then carried by the
petitioner, argues that under Section 12, Rule 136 of the Rules of Court a person lawfully
arrested may be searched for dangerous weapons or anything used as proof of a commission of
an offense without a search warrant. It is further alleged that the arrest without a warrant of the
petitioner was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:
SEC. 5. Arrest without warrant; when lawful A peace officer or a private person
may, without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7. (6a, 17a)
From the foregoing provision of law it is clear that an arrest without a warrant may be effected by
a peace officer or private person, among others, when in his presence the person to be arrested
has committed, is actually committing, or is attempting to commit an offense; or when an offense
has in fact just been committed, and he has personal knowledge of the facts indicating that the
person arrested has committed it.
The Solicitor General argues that when the two policemen approached the petitioner, he was
actually committing or had just committed the offense of illegal possession of firearms and
ammunitions in the presence of the police officers and consequently the search and seizure of
the contraband was incidental to the lawful arrest in accordance with Section 12, Rule 126 of the
1985 Rules on Criminal Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended the petitioner
as he attempted to flee they did not know that he had committed, or was actually committing the
offense of illegal possession of firearms and ammunitions. They just suspected that he was
295

hiding something in the buri bag. They did now know what its contents were. The said
circumstances did not justify an arrest without a warrant.
However, there are many instances where a warrant and seizure can be effected without
necessarily being preceded by an arrest, foremost of which is the "stop and search" without a
search warrant at military or police checkpoints, the constitutionality or validity of which has
been upheld by this Court in Valmonte vs. de Villa,
7
as follows:
Petitioner Valmonte's general allegation to the effect that he had been stopped and
searched without a search warrant by the military manning the checkpoints,
without more, i.e., without stating the details of the incidents which amount to a
violation of his light against unlawful search and seizure, is not sufficient to
enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are prohibited.
Those which are reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to the facts of each
case.
Where, for example, the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds, or simply looks into a vehicle or
flashes a light therein, these do not constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other
areas) may be considered as a security measure to enable the NCRDC to pursue
its mission of establishing effective territorial defense and maintaining peace and
order for the benefit of the public. Checkpoints may also be regarded as measures
to thwart plots to destabilize the government in the interest of public security. In
this connection, the Court may take judicial notice of the shift to urban centers
and their suburbs of the insurgency movement, so clearly reflected in the
increased killings in cities of police and military men by NPA "sparrow units," not
to mention the abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which are reported in
media, most likely brought about by deteriorating economic conditions which
all sum up to what one can rightly consider, at the very least, as abnormal
times. Between the inherent right of the state to protect its existence and promote
public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the
men in uniform in the same manner that all governmental power is susceptible of
abuse. But, at the cost of occasional inconvenience, discomfort and even irritation
to the citizen, the checkpoints during these abnormal times, when conducted
within reasonable limits, are part of the price we pay for an orderly society and a
peaceful community. (Emphasis supplied).
Thus, as between a warrantless search and seizure conducted at military or police checkpoints
and the search thereat in the case at bar, there is no question that, indeed, the latter is more
reasonable considering that unlike in the former, it was effected on the basis of a probable cause.
The probable cause is that when the petitioner acted suspiciously and attempted to flee with the
buri bag there was a probable cause that he was concealing something illegal in the bag and it
was the right and duty of the police officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the possession of the
petitioner only after they shall have obtained a search warrant for the purpose. Such an exercise
may prove to be useless, futile and much too late.
296

In People vs. CFI of Rizal,
8
this Court held as follows:
. . . In the ordinary cases where warrant is indispensably necessary, the
mechanics prescribed by the Constitution and reiterated in the Rules of Court
must be followed and satisfied. But We need not argue that there are exceptions.
Thus in the extraordinary events where warrant is not necessary to effect a valid
search or seizure, or when the latter cannot be performed except without warrant,
what constitutes a reasonable or unreasonable search or seizure becomes purely a
judicial question, determinable from the uniqueness of the circumstances
involved, including the purpose of the search or seizure, the presence or absence
of probable cause, the manner in which the search and seizure was made, the
place or thing searched and the character of the articles procured.
The Court reproduces with approval the following disquisition of the Solicitor General:
The assailed search and seizure may still be justified as akin to a "stop and frisk"
situation whose object is either to determine the identity of a suspicious individual
or to maintain the status quo momentarily while the police officer seeks to obtain
more information. This is illustrated in the case ofTerry vs. Ohio, 392 U.S. 1
(1968). In this case, two men repeatedly walked past a store window and returned
to a spot where they apparently conferred with a third man. This aroused the
suspicion of a police officer. To the experienced officer, the behaviour of the men
indicated that they were sizing up the store for an armed robbery. When the police
officer approached the men and asked them for their names, they mumbled a
reply. Whereupon, the officer grabbed one of them, spun him around and frisked
him. Finding a concealed weapon in one, he did the same to the other two and
found another weapon. In the prosecution for the offense of carrying a concealed
weapon, the defense of illegal search and seizure was put up. The United States
Supreme Court held that "a police officer may in appropriate circumstances and in
an appropriate manner approach a person for the purpose of investigating
possible criminal behaviour even though there is no probable cause to make an
arrest." In such a situation, it is reasonable for an officer rather than simply to
shrug his shoulder and allow a crime to occur, to stop a suspicious individual
briefly in order to determine his identity or maintain thestatus quo while obtaining
more information. . . .
Clearly, the search in the case at bar can be sustained under the exceptions heretofore
discussed, and hence, the constitutional guarantee against unreasonable searches and seizures
has not been violated.
9

WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
Narvasa (Chairman), Cruz, Grio-Aquino and Medialdea, JJ., concur.
Footnotes
1 Exhibit B.
2 Exhibits B1 and B2.
3 Exhibit C.
4 Exhibits D and D-1
5 Page 40, Rollo.
6 Justice Bienvenido Ejercito, ponente, concurred in by Justices Felipe B. Kalalo and Luis L. Victor.
7 G.R. No. 83988, September 29, 1989.
8 101 SCRA 86 (1986).
9 Pages 67 to 69, Rollo.
297

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 87059 June 22, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.:
Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the
strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest.
In this appeal, he pleads that the weapon was not admissible as evidence against him because it
had been illegally seized and was therefore the fruit of the poisonous tree. The Government
disagrees. It insists that the revolver was validly received in evidence by the trial judge because
its seizure was incidental to an arrest that was doubtless lawful even if admittedly without
warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western Police District
received a telephone call from an informer that there were three suspicious-looking persons at
the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of
plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by
Patrolmen Rolando Mercado and Alberto Juan,
1
they there saw two men "looking from side to
side," one of whom was holding his abdomen. They approached these persons and identified
themselves as policemen, whereupon the two tried to run away but were unable to escape
because the other lawmen had surrounded them. The suspects were then searched. One of them,
who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson
revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos,
had a fan knife secreted in his front right pants pocket. The weapons were taken from them.
Mengote and Morellos were then turned over to police headquarters for investigation by the
Intelligence Division.
On August 11, 1987, the following information was filed against the accused-appellant before the
Regional Trial Court of Manila:
The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of
Presidential Decree No. 1866, committed as follows:
That on or about August 8, 1987, in the City of Manila, Philippines, the said
accused did then and there wilfully, unlawfully and knowingly have in his
possession and under his custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T
298

without first having secured the necessary license or permit therefor from the
proper authorities.
Besides the police officers, one other witness presented by the prosecution was Rigoberto
Danganan, who identified the subject weapon as among the articles stolen from him during the
robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers.
He had duly reported the robbery to the police, indicating the articles stolen from him, including
the revolver.
2
For his part, Mengote made no effort to prove that he owned the firearm or that he
was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the
time of his arrest.
3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and
admitted over the objection of the defense. As previously stated, the weapon was the principal
evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced
to reclusion
perpetua.
4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in
evidence because of its illegal seizure. no warrant therefor having been previously obtained.
Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote
was itself unlawful, having been also effected without a warrant. The defense also contends that
the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also
have been disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:
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.
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.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
There is no question that evidence obtained as a result of an illegal search or seizure is
inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III,
Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the
justification given by Judge Learned Hand that "only in case the prosecution, which itself
controls the seizing officials, knows that it cannot profit by their wrong will the wrong be
repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in
the case at bar. His reason is that the arrest and search of Mengote and the seizure of the
revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as
follows:
Sec. 5. Arrest without warrant when lawful. A peace officer or private person
may, without a warrant, arrest a person;
299

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases failing under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7.
We have carefully examined the wording of this Rule and cannot see how we can agree with the
prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal
institution when he was arrested. We therefore confine ourselves to determining the lawfulness of
his arrest under either Par. (a) or Par. (b) of this section.
Par. (a) requires that the person be arrested (1) after he has committed or while he is actually
committing or is at least attempting to commit an offense, (2) in the presence of the arresting
officer.
These requirements have not been established in the case at bar. At the time of the arrest in
question, the accused-appellant was merely "looking from side to side" and "holding his
abdomen," according to the arresting officers themselves. There was apparently no offense that
had just been committed or was being actually committed or at least being attempted by Mengote
in their presence.
The Solicitor General submits that the actual existence of an offense was not necessary as long
as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and
induced in them the belief that an offense had been committed and that the accused-appellant
had committed it." The question is, What offense? What offense could possibly have been
suggested by a person "looking from side to side" and "holding his abdomen" and in a place not
exactly forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It
might have been different if Mengote bad been apprehended at an ungodly hour and in a place
where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was
arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger
jeep with I his companion. He was not skulking in the shadows but walking in the clear light of
day. There was nothing clandestine about his being on that street at that busy hour in the blaze
of the noonday sun.
On the other hand, there could have been a number of reasons, all of them innocent, why his
eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in
the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been
shown what their suspicion was all about. In fact, the policemen themselves testified that they
were dispatched to that place only because of the telephone call from the informer that there
were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North
Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he
elaborate on the impending crime.
300

In the recent case of People v. Malmstedt,
5
the Court sustained the warrantless arrest of the
accused because there was a bulge in his waist that excited the suspicion of the arresting officer
and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio,
6
the
accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting
officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously
examined the bag, which he found to contain marijuana. He then and there made the
warrantless arrest and seizure that we subsequently upheld on the ground that probable cause
had been sufficiently established.
The case before us is different because there was nothing to support the arresting officers'
suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the
imagination could it have been inferred from these acts that an offense had just been committed,
or was actually being committed, or was at least being attempted in their presence.
This case is similar to People v. Aminnudin,
7
where the Court held that the warrantless arrest of
the accused was unconstitutional. This was effected while be was coming down a vessel, to all
appearances no less innocent than the other disembarking passengers. He had not committed
nor was be actually committing or attempting to commit an offense in the presence of the
arresting officers. He was not even acting suspiciously. In short, there was no probable cause
that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of
a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also not been
satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in
fact just been committed and that the arresting officers had personal knowledge of facts
indicating that Mengote had committed it. All they had was hearsay information from the
telephone caller, and about a crime that had yet to be committed.
The truth is that they did not know then what offense, if at all, had been committed and neither
were they aware of the participation therein of the accused-appellant. It was only later, after
Danganan had appeared at the Police headquarters, that they learned of the robbery in his house
and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm
found on Mengote's person, the policemen discovered this only after he had been searched and
the investigation conducted later revealed that he was not its owners nor was he licensed to
possess it.
Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the
fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the
robbery of Danganan's house.
In the landmark case of People v. Burgos,
9
this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is
committing, or is about to commit an offense must have personal knowledge of the fact. The
offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80
Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A crime
must in fact or actually have been committed first. That a crime has actually been committed
is an essential precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be undisputed. The test of
reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied)
301

This doctrine was affirmed in Alih v. Castro,
10
thus:
If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with
a crime about to be committed, being committed, or just committed, what was that crime?
There is no allegation in the record of such a falsification. Parenthetically, it may be
observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must
have personal knowledge of the ground therefor as stressed in the recent case of People v.
Burgos. (Emphasis supplied)
It would be a sad day, indeed, if any person could be summarily arrested and searched just
because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a
peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may
have committed a criminal act or is actually committing or attempting it. This simply cannot be
done in a free society. This is not a police state where order is exalted over liberty or, worse,
personal malice on the part of the arresting officer may be justified in the name of security.
There is no need to discuss the other issues raised by the accused-appellant as the ruling we
here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken
from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and
must therefore fail. The testimonial evidence against Mengote (which is based on the said
firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-
appellant not only in the brief but also in the reply brief, which she did not have to file but did so
just the same to stress the constitutional rights of her client. The fact that she was acting only as
a counsel de oficio with no expectation of material reward makes her representation even more
commendable.
The Court feels that if the peace officers had been more mindful of the provisions of the Bill of
Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they
allowed their over-zealousness to get the better of them, resulting in their disregard of the
requirements of a valid search and seizure that rendered inadmissible the vital evidence they had
invalidly seized.
This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the
acquittal of persons who deserve to be convicted, escaping the clutches of the law because,
ironically enough, it has not been observed by those who are supposed to enforce it.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately unless he is validly detained for other offenses.
No costs.
SO ORDERED.
Grio-Aquino, Medialdea and Bellosillo, JJ., concur.
Footnotes
1 TSN, September 21, 1987, October 21, 1987.
2 Records, p. 54.
3 TSN, October 26, 1987. p. 11.
4 Through Judge Romeo J. Callejo.
5 198 SCRA 401.
6 160 SCRA 646.
7 163 SCRA 402.
8 TSN, September 23, 1987, p. 10.
9 144 SCRA 1.
10 151 SCRA 279.
302

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-63630 April 6, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Katz N. Tierra for defendant-appellant.

GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region
at San Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty
beyond reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs
Act of 1972 as amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and
to pay the costs.
The information filed against the appellant alleged:
That on or about the 2nd day of March, 1982, in the municipality of San
Fernando, Province of Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused MEDEL TANGLIBEN y BERNARDINO,
knowing fully well that Marijuana is a prohibited drug, did then and there
willfully, unlawfully and feloniously have his possession, control and custody one
(1) bag of dried marijuana leaves with an approximate weight of one (1) kilo and to
transport (sic) the same to Olongapo City, without authority of law to do so. (At p.
6, Rollo)
The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is
narrated by the trial court as follows:
It appears from the evidence presented by the prosecution that in the late evening
of March 2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San
Fernando Police Station, together with Barangay Tanod Macario Sacdalan, were
conducting surveillance mission at the Victory Liner Terminal compound located
at Barangay San Nicolas, San Fernando, Pampanga; that the surveillance was
aimed not only against persons who may commit misdemeanors at the said place
but also on persons who may be engaging in the traffic of dangerous drugs based
on informations supplied by informers; that it was around 9:30 in the evening that
said Patrolmen noticed a person caring a traveling bag (Exhibit G) who was acting
suspiciously and they confronted him; that the person was requested by
Patrolmen Quevedo and Punzalan to open the red traveling bag but the person
refused, only to accede later on when the patrolmen identified themselves; that
found inside the bag were marijuana leaves (Exhibit B) wrapped in a plastic
wrapper and weighing one kilo, more or less; that the person was asked of his
303

name and the reason why he was at the said place and he gave his name as Medel
Tangliben and explained that he was waiting for a ride to Olongapo City to deliver
the marijuana leaves; that the accused was taken to the police headquarters at
San Fernando, Pampanga, for further investigation; and that Pat. Silverio Quevedo
submitted to his Station Commander his Investigator's Report (Exhibit F).
It appears also from the prosecution's evidence that in the following morning or on
March 3, 1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto
Quevedo, who happens to be his brother and who has had special training on
narcotics, to conduct a field test on a little portion of the marijuana leaves and to
have the remaining portion examined by the PCCL at Camp Olivas, San Fernando,
Pampanga; that Pat. Roberto Quevedo conducted a field test (Exhibit H) on the
marijuana leaves and found positive result for marijuana (Exhibit E); that the
remaining bigger quantity of the marijuana leaves were taken to the PCCL at
Camp Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A
and A-1) and when examined, the same were also found to be marijuana (Exhibit
C and C-1). (At pp. 9-10, Rollo)
Only the accused testified in his defense. His testimony is narrated by the trial court as follows:
The accused declared that he got married on October 25, 1981 and his wife begot
a child on June 10, 1982; that he was formerly employed in the poultry farm of
his uncle Alejandro Caluma in Antipolo, Rizal; that he is engaged in the business
of selling poultry medicine and feeds, including chicks, and used to conduct his
business at Taytay, Rizal; that he goes to Subic at times in connection with his
business and whenever he is in Subic, he used to buy C-rations from one Nena
Ballon and dispose the same in Manila; that he never left his residence at
Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to
collect a balance of P100.00 from a customer thereat and to buy C-rations; that he
was able to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in
Nena's house up to 8:00 o'clock because he had a drinking spree with Nena's son;
that he tried to catch the 8:00 o'clock trip to Manila from Olongapo City but he
failed and was able to take the bus only by 9:00 o'clock that evening that it was a
Victory Liner Bus that he rode and because he was tipsy, he did not notice that
the bus was only bound for San Fernando, Pampanga; that upon alighting at the
Victory Liner Compound at San Fernando, Pampanga he crossed the street to wait
for a bus going to Manila; that while thus waiting for a bus, a man whom he came
to know later as Pat. Punzalan, approached him and asked him if he has any
residence certificate; that when he took out his wallet, Pat. Punzalan got the wallet
and took all the money inside the wallet amounting to P545.00; that Pat. Punzalan
told him that he'll be taken to the municipal building for verification as he may be
an NPA member; that at the municipal building, he saw a policeman, identified by
him later as Pat. Silverio Quevedo, sleeping but was awakened when he arrived
that Pat. Quevedo took him upstairs and told him to take out everything from his
pocket saying that the prisoners inside the jail may get the same from him; that
inside his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him
that it shall be returned to him but that it was never returned to him; that he was
thereafter placed under detention and somebody told him that he is being charged
with possession of marijuana and if he would like to be bailed out, somebody is
willing to help him; and, that when he was visited by his wife, he told his wife that
Patrolman Silverio Quevedo took away all his money but he told his wife not to
complain anymore as it would be useless. (Rollo, pp. 10-11)
Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in
his appeal:
304

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND
FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND
DOUBTFUL EVIDENCE. (At p. 48, Rollo)
The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.
However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan
died. Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant
thereto, the Deputy Clerk of Court, in behalf of the Clerk of Court, required the new counsel to
file her appellant's brief. The latter complied and, in her brief, raised the following assignment of
errors:
I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF
MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A
PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT.
II
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED
PACKAGE OF MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED
FROM ACCUSED WHEN IT WAS NEVER AUTHENTICATED.
III
THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED
TO PROVE THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)
It is contended that the marijuana allegedly seized from the accused was a product of an
unlawful search without a warrant and is therefore inadmissible in evidence.
This contention is devoid of merit.
One of the exceptions to the general rule requiring a search warrant is a search incident to a
lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:
Section 12. Search incident to a lawful arrest. A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
Meanwhile, Rule 113, Sec. 5(a) provides:
. . . A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This
case therefore falls squarely within the exception. The warrantless search was incident to a
lawful arrest and is consequently valid.
305

In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same
issue, held that:
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not
need a warrant to arrest Claudio as the latter was caught in flagrante delicto. The
warrantless search being an incident to a lawful arrest is in itself lawful. (Nolasco
V. Pao, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1
kilos of marijuana.
We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402
[1988]. In that case the PC officers had earlier received a tip from an informer that accused-
appellant. was on board a vessel bound for Iloilo City and was carrying marijuana. Acting on this
tip, they waited for him one evening, approached him as he descended from the gangplank,
detained him and inspected the bag he was carrying. Said bag contained marijuana leaves. The
Court held that the marijuana could not be admitted in evidence since it was seized illegally. The
records show, however, that there were certain facts, not sing in the case before us, which led
the Court to declare the seizure as invalid. As stated therein:
The present case presented no such urgency From the conflicting declarations of
the PC witnesses, it is clear that they had at react two days within which they
could have obtained a warrant of arrest and search Aminnudin who was coming to
Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The
date of its arrival was certain. And from the information they had received, they
could have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to comply with the
law. The Bill of Rights was ignored altogether because the PC lieutenant who was
the head of the arresting team, had determined on his own authority that a
"search warrant was not necessary."
In contrast, the case before us presented urgency. Although the trial court's decision did not
mention it, the transcript of stenographic notes reveals that there was an informer who pointed
to the accused-appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot
information, the police officers had to act quickly. There was not enough time to secure a search
warrant. We cannot therefore apply the ruling in Aminnudinto the case at bar. To require search
warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms,
jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely
difficult, if not impossible to contain the crimes with which these persons are associated.
Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from
him was never authenticated and therefore should not have been admitted as evidence. He
capitalizes on the fact that the marijuana package brought by patrolman Roberto Quevedo to the
PC Crime Laboratory for examination did not contain a tag bearing the name of the accused. We
rule, however, that since Patrolman Quevedo testified that he gave the marijuana package
together with a letter-request for examination, and the forensic chemist Marilene Salangad
likewise testified that she received the marijuana together with the letter-request and said letter-
request bore the name of the accused, then the requirements of proper authentication of
evidence were sufficiently complied with. The marijuana package examined by the forensic
checklist was satisfactorily identified as the one seized from accused.
Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly
authenticated, still, we cannot discount the separate field test conducted by witness Roberto
Quevedo which yielded positive results for marijuana.
Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and
doubtful and that the prosecution failed to prove his guilt.
306

In attacking the sufficiency of evidence, the appellant avers that the informer should have been
presented before the lower court. We discard this argument as a futile attempt to revive an
already settled issue. This Court has ruled in several cases that non-presentation of the
informer, where his testimony would be merely corroborative or cumulative, is not fatal to the
prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R. No.
64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147
SCRA 538).
As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue
of credibility of witnesses and their testimonies are entitled to great respect and accorded the
highest consideration by the appellate court. Since credibility is a matter that is peculiarly within
the province of the trial judge, who had first hand opportunity to watch and observe the
demeanor and behavior of witnesses both for the prosecution and the defense at the time of their
testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278),
we find no reason to disturb the following findings:
The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo
Punzalan are positive and sufficiently clean to show the commission by the
accused of the offense herein chatted. These prosecution witnesses have no motive
to fabricate the facts and to foist a very serious offense against the accused. The
knowledge on what these witnesses testified to were (sic) acquired by them in the
official performance of their duties and then, (sic) being no showing that they are
prejudiced against the accused, their testimonies deserve full credit.
The testimonies of the afore-mentioned petitioner that what they found in the
possession of the accused were marijuana leaves were corroborated by the
examination findings conducted by Pat. October to Salangad of the PCCL, with
station at camp Olivas, San Fernando, Pampanga (Exhibits C and C-1). (Rollo, p.
11)
Moreover, if there is truth in the testimony of the accused to the effect that Pat.
Punzalan got all the money from his wallet when he was accosted at the Victory
Liner Terminal and was told just to keep quiet otherwise he will be "salvaged" why
will Pat. Punzalan still bring the accused to the municipal Building for
interrogation and/or verification? Would not Pat. Punzalan be exposing his
identity to the accused? This is unnatural. And this is also true on the testimony
to the accused that Pat. Silverio Quevedo got his fifty-peso bill arid never returned
the same to him. If the policemen really got any money from the accused and that
the marijuana leaves do not belong to the accused, why will the two policemen still
produce in Court as evidence that expensive-looking traveling red bag (Exhibit G)
taken from the accused and which contained the marijuana in question if the
instant case is a mere fabrication?
As already stated, all the evidence, oral and documentary, presented by the
prosecution in this case were all based on personal knowledge acquired by the
prosecution witnesses in the regular performance of their official duties and there
is nothing in their testimonies to show that they are bias (sic) or that they have
any prejudice against the herein accused. Between the testimonies of these
prosecution witnesses and that of the uncorroborated and self-serving testimony
of the accused, the former should prevail. (Rollo, p. 13)
Likewise, the appellant chose to limit his defense to his own testimony. He could have availed
himself through compulsory court processes of several witnesses to buttress his defense. Since
not one other witness was presented nor was any justification for the non-appearance given, the
307

inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the
positive testimonies given by the prosecution witnesses.
Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the
lower court, is an added circumstance tending to establish his guilt.
We take exception, however, to the trial court's finding that:
The dried marijuana leaves found in the possession of the accused weighs one (1)
kilo, more or less. The intent to transport the same is clear from the testimony of
Pat. Silverio Quevedo who declared, among other things, that when he confronted
the accused that night, the latter told him that he (accused) is bringing the
marijuana leaves to Olongapo City. Moreover, considering the quantity of the
marijuana leaves found in the possession of the accused and the place he was
arrested which is at San Fernando, Pampanga, a place where the accused is not
residing, it can be said that the intent to transport the marijuana leaves has been
clearly established. (Rollo, pp. 13-14)
The alleged extrajudicial confession of the accused which, on the other hand, he categorically
denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied
upon. Even assuming it to be true, the extrajudicial confession cannot be admitted because it
does not appear in the records that the accused, during custodial investigation, was apprised of
his rights to remain silent and to counsel and to be informed of such rights. In People
v. Duero 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed
to prove that before Duero made his alleged oral confession he was informed of his rights to
remain silent and to have counsel and because there is no proof that he knowingly and
intelligently waived those rights, his confession is inadmissible in evidence. This ruling was
reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that:
In effect, the Court not only abrogated the rule on presumption of regularity of
official acts relative to admissibility of statements taken during in-custody
interrogation but likewise dispelled any doubt as to the full adoption of
the Miranda doctrine in this jurisdiction. It is now incumbent upon the
prosecution to prove during a trial that prior to questioning, the confessant was
warned of his constitutionally protected rights.
The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this
finding extracted a clear intent to transport the marijuana leaves. It may be pointed out,
however, that although the information stated the weight to be approximately one kilo, the
forensic chemist who examined the marijuana leaves testified that the marijuana weighed only
600 grams Such amount is not a considerable quantity as to conclusively confer upon the
accused an intent to transport the marijuana leaves.
Nor can it be said that the intent to transport is clearly established from the fact that the
accused was arrested at San Fernando, Pampanga, a place which is not his residence.
Conviction of a crime with an extremely severe penalty must be based on evidence which is
clearer and more convincing than the inferences in this case.
What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana
leaves but his actual session.
The offense committed by the appellant is possession of marijuana under Section 8 of Republic
Act No. 6425 (Dangerous Drugs Act of 1972 as amended).
308

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED.
The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.























309

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:p
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred
to as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet,
Branch 10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act
6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The
factual background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in
December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the
morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus
stop in Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned
to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the
country, scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body
number 8005 and Plate number AVC 902.
1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain
Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to
establish a checkpoint in the said area was prompted by persistent reports that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was
received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming
from Sagada had in his possession prohibited drugs.
2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station,
set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected
all vehicles coming from the Cordillera Region.
310

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus and announced that they were members of the NARCOM and
that they would conduct an inspection. The two (2) NARCOM officers started their inspection
from the front going towards the rear of the bus. Accused who was the sole foreigner riding the
bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification
papers. When accused failed to comply, the officer required him to bring out whatever it was that
was bulging on his waist. The bulging object turned out to be a pouch bag and when accused
opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped
in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped
objects turned out to contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted from the
bus, accused stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found
in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same
which did not feel like foam stuffing. It was only after the officers had opened the bags that
accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad,
Benguet for further investigation. At the investigation room, the officers opened the teddy bears
and they were found to also contain hashish. Representative samples were taken from the
hashish found among the personal effects of accused and the same were brought to the PC
Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were hashish. a prohibited
drug which is a derivative of marijuana. Thus, an information was filed against accused for
violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the
issue of illegal search of his personal effects. He also claimed that the hashish was planted by
the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by
him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He
further claimed that the Australian couple intended to take the same bus with him but because
there were no more seats available in said bus, they decided to take the next ride and asked
accused to take charge of the bags, and that they would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his
neck containing, among others, his passport, return ticket to Sweden and other papers. The
officer in turn handed it to his companion who brought the bag outside the bus. When said
officer came back, he charged the accused that there was hashish in the bag. He was told to get
off the bus and his picture was taken with the pouch bag placed around his neck. The trial court
did not give credence to accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was belied by
his failure to raise such defense at the earliest opportunity. When accused was investigated at
the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was
planted by the NARCOM officers in his bag. It was only two (2) months after said investigation
when he told his lawyer about said claim, denying ownership of the two (2) travelling bags as well
as having hashish in his pouch bag.
311

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable
doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as
amended.
3
The dispositive portion of the decision reads as follows:
WHEREFORE, finding the guilt of the accused Mikael Malmstedt established
beyond reasonable doubt, this Court finds him GUILTY of violation of Section 4,
Article 11 of Republic Act 6425, as amended, and hereby sentences him to suffer
the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos
(P20,000.00), with subsidiary imprisonment in case of insolvency and to pay the
costs.
Let the hashish subject of this case be turned over to the First Narcotics Regional
Unit at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under
Section 20, Article IV of Republic Act 6425, as amended.
SO ORDERED.
4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged,
accused argues that the search of his personal effects was illegal because it was made without a
search warrant and, therefore, the prohibited drugs which were discovered during the illegal
search are not admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures.
5
However, where the search is made
pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without
a warrant may be made by a peace officer or a private person under the following
circumstances.
6

Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the search
made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of
law, which allow a warrantless search incident to a lawful arrest.
7

While it is true that the NARCOM officers were not armed with a search warrant when the search
was made over the personal effects of accused, however, under the circumstances of the case,
312

there was sufficient probable cause for said officers to believe that accused was then and there
committing a crime.
Probable cause has been defined as such facts and circumstances which could lead a
reasonable, discreet and prudent man to believe that an offense has been committed, and that
the objects sought in connection with the offense are in the place sought to be searched.
8
The
required probable cause that will justify a warrantless search and seizure is not determined by
any fixed formula but is resolved according to the facts of each case.
9

Warrantless search of the personal effects of an accused has been declared by this Court as
valid, because of existence of probable cause, where the smell of marijuana emanated from a
plastic bag owned by the accused,
10
or where the accused was acting suspiciously,
11
and
attempted to flee.
12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in
his possession. Said information was received by the Commanding Officer of NARCOM the very
same morning that accused came down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs,
there was no time to obtain a search warrant. In the Tangliben case,
13
the police authorities
conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San
Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based on
information supplied by some informers. Accused Tangliben who was acting suspiciously and
pointed out by an informer was apprehended and searched by the police authorities. It was held
that when faced with on-the-spot information, the police officers had to act quickly and there
was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine check of the
bus (where accused was riding) and the passengers therein, and no extensive search was initially
made. It was only when one of the officers noticed a bulge on the waist of accused, during the
course of the inspection, that accused was required to present his passport. The failure of
accused to present his identification papers, when ordered to do so, only managed to arouse the
suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm
for an innocent man, who has nothing to hide from the authorities, to readily present his
identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious failure of the accused to produce his passport,
taken together as a whole, led the NARCOM officers to reasonably believe that the accused was
trying to hide something illegal from the authorities. From these circumstances arose a probable
cause which justified the warrantless search that was made on the personal effects of the
accused. In other words, the acts of the NARCOM officers in requiring the accused to open his
pouch bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy
bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his
identity by refusing to present his passport, and by the information received by the NARCOM
that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the
NARCOM agents of the ability and facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness
in law enforcement, to the detriment of society.
313

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is
hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Sarmiento, J., is on leave.
Separate Opinions

NARVASA, J., concurring and dissenting:
The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has
not only found its niche in all our charters, from 1935 to the present; it has also received
unvarying recognition and acceptance in our case law.
1
The present Constitution
2
declares that

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.
It further ordains that any evidence obtained in violation of said right, among others, "shall be
inadmissible for any purpose in any proceeding."
3

The rule is that no person may be subjected by the police or other government authority to a
search of his body, or his personal effects or belongings, or his residence except by virtue of a
search warrant or on the occasion of a legitimate arrest.
4
An arrest is legitimate, of course, if
effected by virtue of a warrant of arrest. Even without a warrant, an arrest may also be lawfully
made by a peace officer or a private person:
5

(a) when, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7.
314

In any of these instances of a lawful arrest, the person arrested "may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a
search warrant."
6
And it has been held that the search may extend to the area "within his
immediate control," i.e., the area from which said person arrested might gain possession of a
weapon or destructible evidence.
7

Apart from "search incidental to an arrest," a warrantless search has also been held to be proper
in cases of "search of a moving vehicle,
8
and "seizure of evidence in plain view."
9
This was the
pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276, which drew attention
to Moreno v. Ago Chi;
10
Alvero v. Dizon,
11
Papa v. Mago,
12
and an American precedent, Harris v.
U.S.
13

If, on the other, a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, supra, merely on suspicion that he is
engaged in some felonious enterprise, and in order to discover if he has indeed committed a
crime, it is not only the arrest which is illegal but also, the search on the occasion thereof, as
being "the fruit of the poisonous tree.
14
In that event, any evidence taken, even if confirmatory of
the initial suspicion, is inadmissible "for any purpose in any proceeding."
15
But the right against
an unreasonable search and seizure may be waived by the person arrested, provided he knew of
such right and knowingly decided not to invoke it.
16

There is unanimity among the members of the Court upon the continuing validity of these
established principles. However, the Court is divided as regards the ultimate conclusions which
may properly be derived from the proven facts and consequently, the manner in which the
principles just cited should apply thereto.
The proofs of the prosecution and those of the defense are diametrically at odds. What is certain,
however, is that the soldiers had no warrant of arrest when they conducted a search of
Malmstedt's person and the things in his possession at the time. Indeed, the Court a
quo acknowledged that the soldiers could "not be expected to be armed with a warrant or arrest
nor a search warrant everytime they establish a temporary checkpoint . . . (and) no judge would
issue them one considering that searching questions have to be asked before a warrant could be
issued." Equally plain is that prior to the search, a warrantless arrest of Malmstedt could not
validly have been in accordance with the norms of the law. For Malmstedt had not committed,
nor was he actually committing or attempting to commit a crime, in the soldiers' presence, nor
did said soldiers have personal and competent knowledge that Malmstedt had in fact just
committed a crime. All they had was a suspicion that Malmstedt might have some prohibited
drug on him or in his bags; all they had was, in the words of the Trial Court, "the hope of
intercepting any dangerous drug being transported," or, as the Office of the Solicitor General
asserts, "information that most of the buses coming . . . (from the Cordillera) were transporting
marijuana and other prohibited drugs."
This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by the First
Division.
17
There, Aminnudin was arrested without a warrant by PC officers as he was
disembarking from an inter-island vessel. The officers were waiting for him because he was,
according to an informer's report, then transporting marijuana. The search of Aminnudin's bag
confirmed the informer's report; the bag indeed contained marijuana. The Court nevertheless
held that since the PC officers had failed to procure a search warrant although they had
sufficient time (two days) to do so and therefore, the case presented no such urgency as to justify
a warrantless search, the search of Aminnudin's person and bag, the seizure of the marijuana
and his subsequent arrest were illegal; and the marijuana was inadmissible in evidence in the
criminal action subsequently instituted against Aminnudin for violating the Dangerous Drugs
Act.
315

There are, on the other hand, other cases adjudicated by this Court in which apparently different
conclusions were reached. It is needful to devote a few words to them so that the relevant
constitutional and legal propositions are not misunderstood.
In People v. Claudio (decision promulgated on April 15, 1988),
18
the accused boarded a "Victory
Liner" passenger bus going to Olongapo from Baguio City. She placed the plastic bag she was
carrying at the back of the seat then occupied by Obia, an INP member "on Detached Service
with the Anti-Narcotics Unit." This avowedly aroused Obia's suspicion, and at the first
opportunity, and without Claudio's knowledge, he surreptitiously looked into the plastic bag and
noted that it contained camote tops as well as a package, and that there emanated from the
package the smell of marijuana with which he had become familiar on account of his work. So
when the bus stopped at Sta. Rita, and Claudio alighted, Obia accosted her, showed her his ID,
identified himself as a policeman, and announced his intention to search her bag which he said
contained marijuana because of the distinctive odor detected by him. Ignoring her plea "Please
go with me, let us settle this at home" he brought her to the police headquarters., where
examination of the package in Claudio's bag confirmed his suspicion that it indeed contained
marijuana. The Court held the warrantless arrest under the circumstances to be lawful, the
search justified, and the evidence thus discovered admissible in evidence against the accused.
In People v. Tangliben (decision promulgated on April 6, 1990),
19
two police officers and
a barangay tanod were conducting a "surveillance mission" at the Victory Liner Terminal at San
Nicolas, San Fernando, Pampanga, "aimed not only against persons who may commit
misdemeanors . . . (there) but also on persons who may be engaging in the traffic of dangerous
drugs based on information supplied by informers; . . . they noticed a person carrying a red
travelling bag . . who was acting suspiciously;" they asked him to open the bag; the person did so
only after they identified themselves as peace officers; found in the bag were marijuana leaves
wrapped in plastic weighing one kilogram, more or less; the person was then taken to the police
headquarters at San Fernando, Pampanga, where he was investigated; and an information was
thereafter filed against that person, Tangliben, charging him with a violation of the Dangerous
Drugs Act of 1972 (RA 6425), as amended. Upon these facts it was ruled, citing Claudio, supra,
that there was a valid warrantless arrest and a proper warrantless search incident thereto.
The facts in Tangliben were pronounced to be different from those in People v. Aminnudin, supra.
"In contrast" toAminnudin where the Court perceived no urgency as to preclude the application
for and obtention of a search warrant, it was declared that the Tangliben case
. . . presented urgency. . . (The evidence revealed) that there was an informer who
pointed to the accused-appellant as carrying marijuana . . . Faced with such on-
the-spot information, the police officers had to act quickly. There was not enough
time to secure a search warrant . . . To require search warrants during on-the-
spot apprehensions of drug pushers, illegal possessors of firearms, jueteng
collectors, smugglers of contraband goods, robber, etc. would make it extremely
difficult, if not impossible to contain the crimes with which these persons are
associated.
In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to
enable the PC officers to secure a search warrant, had there been time. But because there
was actually no time to get the warrant, and there were "on-the-spot" indications that
Tangliben was then actually committing a crime, the search of his person and his effects
was considered valid.
Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et
al., decided on August 2, 1990,
20
and People v. Moises Maspil, Jr., et al., decided on August 20,
1990.
21

316

In the first case, Posadas was seen to be acting suspiciously by two members of the INP, Davao
Metrodiscom, and when he was accosted by the two, who identified themselves as police officers,
he suddenly fled. He was pursued, overtaken and, notwithstanding his resistance, placed in
custody. The buri bag Posadas was then carrying was found to contain a revolver, for which he
could produce no license or authority to possess, four rounds of live ammunition, and a tear gas
grenade. He was prosecuted for illegal possession of firearms and ammunition and convicted
after trial. This Court affirmed Posadas' conviction, holding that there was, in the premises,
probable cause for a search without warrant, i.e., the appellant was acting suspiciously and
attempted to flee with the buribag he had with him at the time. The Court cited with approval the
ruling of the U.S. Federal Supreme Court inJohn W. Terry v. State of Ohio,
22
a 1968 case, which
the Solicitor General had invoked to justify the search.
In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics Regional
Unit of the Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize
vehicles on the highway going towards Baguio City. This was done because of a confidential
report by informers that Maspil and another person, Bagking, would be transporting a large
quantity of marijuana to Baguio City. In fact, the informers were with the policemen manning the
checkpoint. As expected, at about 2 o'clock in the early morning of November 1, 1986, a jeepney
approached the checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped
the vehicle and saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin cans.
When opened, the sacks and cans were seen to contain what appeared to be marijuana leaves.
The policemen thereupon placed Maspil and Bagking under arrest, and confiscated the leaves
which, upon scientific examination, were verified to be marijuana leaves. The Court upheld the
validity of the search thus conducted, as being incidental to a lawful warrantless arrest,
23
and
declared that, as in Tangliben, supra, Maspil and Bagking had been caught in flagrante
delicto transporting prohibited drugs at the time of their arrest. Again, the Court took occasion to
distinguish the case from Aminnudin
24
in which, as aforestated, it appeared that the police
officers were aware of Aminnudin's identity, his projected criminal enterprise and the vessel on
which he would be arriving, and, equally as importantly, had sufficient time and opportunity to
obtain a search warrant. In the case of Maspil and Bagking, the Court found that the officers
concerned had no exact description of the vehicle the former would be using to transport
marijuana, and no inkling of the definite time of the suspects' arrival, and pointed out that a
jeepney on the road is not the same as a passenger boat on the high seas whose route and time
of arrival are more or less certain, and which ordinarily cannot deviate from or otherwise alter its
course, or select another destination.
25

The most recent decision treating of warrantless search and seizure appears to be People v. Lo Ho
Wing; et al., G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case, an
undercover or "deep penetration" agent, Tia, managed somehow to gain acceptance into a group
of suspected drug smugglers, which included Peter Lo and Lim Ching Huat. Tia accompanied
Peter Lo to Guangzhou, China, where he saw him and other person empty the contents of six (6)
tins of tea and replace them with white powder. On their return to Manila with the cans of
substituted "tea," they were met at the airport by Lim. As they were leaving the airport in
separate vehicles, they were intercepted by officers and operatives of the Narcotics Command
(NARCOM), who had earlier been tipped off by Tia, and placed under arrest. As search of the
luggage brought in by Tia and Peter Lo, loaded on the group's vehicles, quickly disclosed the six
(6) tin cans containing fifty-six (56) bags of white crystalline powder which, upon analysis, was
identified as metamphetamine. Tia, Lo and Lim were indicted for violation of the Dangerous
Drugs Act of 1972. Tia was discharged as state witness. Lo and Lim were subsequently convicted
and sentenced to life imprisonment. One of the questions raised by them in this Court on appeal
was whether the warrantless search of their vehicles and personal effects was legal. The
Court, citing Manipon, Jr. v.Sandiganbayan, 143 SCRA 267 (1986),
26
held legal the search of the
appellants' moving vehicles and the seizure therefrom of the dangerous drug, considering that
there was intelligence information, including clandestine reports by a planted spy actually
participating in the activity, that the appellants were bringing prohibited drugs into the country;
that the requirement of obtaining a search warrant "borders on the impossible in the case of
317

smuggling effected by the use of a moving vehicle that can transport contraband from one place
to another with impunity," and "it is not practicable to secure a warrant because the vehicle can
be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
27

In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which were
found by the Court as justifying warantless arrests. In Claudio, the arresting officer had secretly
ascertained that the woman he was arresting was in fact in possession of marijuana; he had
personally seen that her bag contained not only vegetables but also a package emitting the odor
of marijuana. In Tangliben, the person arrested and searched was acting suspiciously, and had
been positively pointed to as carrying marijuana. And in both cases, the accused were about to
board passenger buses, making it urgent for the police officers concerned to take quick and
decisive action. In Posadas, the person arrested and searched was acting suspiciously, too, and
when accosted had attempted to flee from the police officers. And in Maspil and Lo Ho
Wing, there was definite information of the precise identity of the persons engaged in
transporting prohibited drugs at a particular time and place.
Now, as regards the precise issue at hand, whether or not the facts in the case at bar make out a
legitimate instance of a warrantless search and seizure, there is, as earlier pointed out, a
regrettable divergence of views among the members of the Court.
Contrary to the conclusion reached by the majority, I believe that the appellant should be
absolved on reasonable doubt. There was in this case no confidential report from, or positive
identification by an informer; no attempt to flee; no bag or package emitting tell-tale odors; no
other reasonably persuasive indications that Malmstedt was at the time in process of
perpetrating the offense for which he was subsequently prosecuted. Hence, when the soldiers
searched Malmstedt's pouch and the bags in his possession, they were simply "fishing" for
evidence. It matters not that the search disclosed that the bags contained prohibited substances,
confirming their initial information and suspicion. The search was not made by virtue of a
warrant or as an incident of a lawful warrantless arrest, i.e., under circumstances sufficient to
engender a reasonable belief that some crime was being or about to be committed, or adjust been
committed. There was no intelligent and intentional waiver of the right against unreasonable
searches and seizure. The search was therefore illegal, since the law requires that there first be a
lawful arrest of an individual before a search of his body and his belongings may licitly be made.
The process cannot be reversed, i.e., a search be first undertaken, and then an arrest effected, on
the strength of the evidence yielded by the search. An arrest made in that case would be
unlawful, and the search undertaken as an incident of such an unlawful arrest, also unlawful.
The fact that when investigated at the headquarters of the Narcotic Command at Camp Dangwa,
La Trinidad, Malmstedt had, it is said, willingly admitted that there were was hashish inside the
"teddy bears" in the luggage found in his possession an admission subsequently confirmed by
laboratory examination does not help the cause of the prosecution one bit. Nothing in the
record even remotely suggests that Malmstedt was accorded the rights guaranteed by the
Constitution to all persons under custodial investigation.
28
He was not informed, prior to being
interrogated, that he had the "right to remain silent and to have competent and independent
counsel preferably of his own choice," and that if he could not afford the services of counsel, he
would be provided with one; not does it appear at all that he waived those rights "in writing and
in the presence of counsel." The soldiers and the police officers simply went ahead with the
investigation of Malmstedt, without counsel. The admissions elicited from Malmstedt under these
circumstances, as the Constitution clearly states, are "inadmissible in evidence against him.
29

The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation
of the constitutional right against unreasonable searches and seizures, are inadmissible against
him "for any purpose in any proceeding." Also pronounced as incompetent evidence against him
are the admissions supposedly made by him without his first being accorded the constitutional
rights of persons under custodial investigation. Without such object evidence and admissions,
nothing remains of the case against Malmstedt.
318

It may be conceded that, as the Trial Court points out, the evidence presented by Malmstedt in
his defense is feeble, unworthy of credence. This is beside the point; for conformably to the
familiar axiom, the State must rely on the strength of its evidence and not on the weakness of
the defense. The unfortunate fact is that although the existence of the hashish is an objective
physical reality that cannot but be conceded, there is in law no evidence to demonstrate with any
degree of persuasion, much less beyond reasonable doubt, that Malmstedt was engaged in a
criminal activity. This is the paradox created by the disregard of the applicable constitutional
safeguards. The tangible benefit is that the hashish in question has been correctly confiscated
and thus effectively withdrawn from private use.
What is here said should not by any means be taken as a disapproval or a disparagement of the
efforts of the police and military authorities to deter and detect offenses, whether they be
possession of and traffic in prohibited drugs, or some other. Those efforts obviously merit the
support and commendation of the Courts and indeed of every responsible citizen. But those
efforts must take account of the basic rights granted by the Constitution and the law to persons
who may fall under suspicion of engaging in criminal acts. Disregard of those rights may not be
justified by the objective of ferreting out and punishing crime, no matter how eminently desirable
attainment of that objective might be. Disregard of those rights, as this Court has earlier
stressed, may result in the escape of the guilty, and all because the "constable has blundered,"
rendering the evidence inadmissible even if truthful or otherwise credible.
30

I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit the
appellant on reasonable doubt.

CRUZ, J., dissenting:
I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct
application to the facts of this case of the provisions of the Bill of Rights and the Rules of Court
on searches and seizures. It is consistent with my ponencia in People v. Aminnudin, 163 SCRA
402, and also with Alih v. Castro, 151 SCRA 279, the latter being a unanimous decision of the
Court en banc, and my dissents in Umil v. Ramos (on warrantless arrests, 187 SCRA 311,
Valmonte v. De Villa (on checkpoints), 178, SCRA 211, 185 SCRA 665, and Guazon v. De Villa
(on "zonas"), 181 SCRA 623.
I write this separate opinion merely to remark on an observation made during the deliberation on
this case that some members of the Court seem to be coddling criminals instead of extending its
protection to society, which deserves our higher concern. The inference is that because of our
wrong priorities, criminals are being imprudently let free, to violate our laws again; and it is all
our fault.
Believing myself to be among those alluded to, I will say without apology that I do not consider a
person a criminal, until he is convicted by final judgment after a fair trial by a competent and
impartial court. Until then, the Constitution bids us to presume him innocent. He may seem
boorish or speak crudely or sport tattoos or dress weirdly or otherwise fall short of our own
standards of propriety and decorum. None of these makes him a criminal although he
may look like a criminal.
It is so easy to condemn a person on the basis of his appearance but it is also so wrong.
On the question before us, it seems to be the inclination of some judges to wink at an illegal
search and seizure as long as the suspect has been actually found in possession of a prohibited
article That fact will retroactively validate the violation of the Bill of Rights for after all, as they
319

would rationalize, the suspect is a criminal. What matters to them is the fact of illegal
possession, not the fact of illegal search and seizure.
This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil.
1, which was discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely
rejected by an express provision in the 1973 Constitution. That provision, which has been
retained in the present Constitution, again explicitly declares that any evidence illegally obtained
"shall be inadmissible for any purpose in any proceeding."
The fruit of the poisonous tree should not be allowed to poison our system of criminal justice. In
the case at bar, the search was made at a checkpoint established for the preposterous reason
that the route was being used by marijuana dealers and on an individual who had something
bulging at his waist that excited the soldier's suspicion. Was that probable cause?
The ponencia notes that the military had advance information that a Caucasian was coming from
the Sagada with prohibited drugs in his possession. This is what the military says now, after the
fact, to justify the warrantless search. It is so easy to make such a claim, and I am surprised that
the majority should readily accept it.
The conclusion that there was probable cause may have been influenced by the subsequent
discovery that the accused was carrying a prohibited drug. This is supposed to justify the
soldier's suspicion. In other words, it was the fact of illegal possession
that retroactively established the probable cause that validated the illegal search and seizure. It
was the fruit of the poisonous tree that washed clean the tree itself.
In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:
. . . It is desirable that criminals should be detected, and to that end that all
available evidence should be used. It is also desirable that the government should
not itself foster and pay for other crimes, when they are the means by which the
evidence is to be obtained. If it pays its officers for having got evidence by crime, I
do not see why it may not as well pay them for getting it in the same way, and I
can attach no importance to protestations of disapproval if it knowingly accepts
and pays and announces that in the future it will pay for the fruits. We have to
choose, and for my part I think it a less evil that some criminals should escape
than that the government should play an ignoble part.
If by deterring the government from playing "an ignoble part," I am "coddling criminals," I
welcome the accusation and take pride in it. I would rather err in favor of the accused who is
impaled with outlawed evidence than exalt order at the price of liberty.
Separate Opinions
NARVASA, J., concurring and dissenting:
Footnotes
* The case was referred to the Court En Banc by the First Division (to which it had
originally been assigned). Thereafter the Court En Banc resolved to accept and
itself decide the case.
1 Brief for Defendant-appellant, Rollo, pp. 43-44.
2 Brief for Plaintiff-appellee, Rollo, p. 89.
320

3 Decision of the RTC of La Trinidad, Branch 10, dated 12 October 1989, Rollo,
pp. 14-20.
4 Rollo, pp. 16-17.
5 Art. III, Sec. 2, 1987 Constitution.
6 Sec. 5, Rule 1 13 of the Rules on Criminal Procedure.
7 People vs. Maspil, G.R. No. 885177, 20 August 1990; People vs. Tangliben, G.R.
No. 63630, 6 April 1990, 184 SCRA 220; People vs. Claudio G.R. No. 72564, 15
April 1988,160 SCRA 646.
8 Quintero vs. NBI, G.R. No. 35149, 23 June 1988, 162 SCRA 467.
9 Valmonte vs. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA 211.
10 People vs. Claudio, supra.
11 People vs. Tangliben, supra.
12 Posadas vs. Court of Appeals, G.R. No. 83139, 2 August 1990.
13 Supra.
NARVASA, J., CONCURRING AND DISSENTING:
1 SEE People v. Burgos, 144 SCRA 1 (1986); Roan v. Gonzales, 145 SCRA 687
(1986); Alih v. Castro, 151 SCRA 279 (1987); Guazon v. de Villa, G.R. No. 80508,
Jan. 30, 1990.
2 Art. III, Sec. 2, 1987 Constitution; to the same effect: ART. IV, Sec. 3, 1973
Constitution, and ART. IV, Sec. 3, 1935 Constitution.
3 ART. III, Sec. 3 (2).
4 Peo. v. de la Cruz, G.R. No. 83260, April 18, 1990.
5 Sec. 5, Rule 113, Rules of Court; SEE Cruz, I.A., Constitutional Law, 1987 ed.,
pp. 141-142, citingAdams v. Williams, 47 U.S. 143 and Terry v. Ohio, 392 U.S. 1.
6 Sec. 12, Rule 126, Rules of Court.
7 SEE Chimel v. California, 395 U.S. 752 (1969), cited in the monograph of Mr.
Justice Mendoza, V.V. entitled Reflections on the Constitutional Law of Arrest,
Search and Seizure, Philippine Law Journal, Vol. LXIII, Third Quarter, September,
1988, p. 241.
8 As pointed out in Cruz, op. cit. p. 142, in the U.S., "searches without warrant
may also be made of automobiles for the purpose of preventing violations of
smuggling or immigration laws, provided such searches are made at borders or
"constructive borders" like checkpoints near the boundary lines of the State," but
"the mere mobility of these vehicles does not justify their indiscriminate searches
321

without warrants if made within the interior of the territory and in the absence of
probable cause (Almeida-Sanchez v. U.S., 37 L. ed. 2d 596; Carrol v. U.S. 267
U.SS. 132).
9 SEE footnote 13, infra.
10 12 Phil. 439, to the effect that, "An officer making an arrest may take from the
person arrested any money or property found upon his persons which was used in
the commission of the crime or was the fruit of the crime of which might furnish
the prisoner with the means of committing violence of escaping, or which may be
used in evidence in the trial of the case."
11 76 Phil. 637 to the effect that, "The most important exception to the necessity
for a search warrant is the right of search and seizure as an incident to a lawful
arrest. A lawful arrest may be made either while a crime is being committed or
after its commission. The right to search includes in both instances that of
searching the person of him who is arrested, in order to find and seize things
connected with the crime as its fruits or as the means by which it was committed
(Agnello vs. United States, 269 U.S., 20).
12 22 SCRA 857 that the "Tariff and Customs Code does not require any search
warrant issued by a competent court before police authorities can effect the
seizure. But the Code requires it in the search of a dwelling house."
13 390 U.S. 243, holding that "prohibited articles within plain view "open to eye
and" hand of the law-enforcement officer who comes upon them "inadvertently,"
may also be seized by him even without warrant (SEE Cruz, op. cit. p. 143).
14 SEE U.S. v. Hachaw, 21 Phil. 514 (1912); U.S. v. Santos, 36 Phil. 853 (1917),
Integrated Bar of the Philippines v. Enrile, Oct. 21, 1985, cited in Gupit, Rules of
Criminal Procedure, 1986 ed., pp. 179182; Peo. v. Aminnudin, 163 SCRA 402
(1988); Guazon v. de Villa, G.R. No. 80508, Jan. 30, 1990; cf., Peo. v. Cruz, 165
SCRA 135 (1988).
15 Nolasco v. Ernani Cruz-Pao, 147 SCRA 509 (1987); SEE, also, People v.
Burgos, 144 SCRA 1 (1986) where the petitioner, while plowing his field, was
arrested and his premises searched on the basis of information that he was in
possession of unlicensed firearms, and thereafter, on discovery by the authorities
of a gun and subversive documents, had admitted ownership thereof upon
which facts, this Court ruled the gun and documents to be inadmissible in
evidence because their seizure was not an incident of a lawful arrest, and his
acknowledgment of ownership thereof equally incompetent because obtained in
violation of the Miranda doctrine.
16 SEE Cruz, op. cit. p. 142, citing Terry v. Ohio, supra, and Magoncia v. Palacio,
80 Phil. 770, and pointing out, on the authority of Callanta vs. Villanueva, 77
SCRA 377 and Bagcal v. Villaraza, 120 SCRA 525, that the posting by the accused
of a bail bond constitutes waiver of any irregularity attending his arrest and
estops him from questioning its validity.
17 163 SCRA 402, per Cruz, J., Grio-Aquino, J., dissenting; SEE footnote 6 at
page 2 supra.
18 160 SCRA 646, Third Division, per Gutierrez, Jr., J.
322

19 184 SCRA 22, Third Division, per Gutierrez, Jr., J.
20 G.R. No. 83139, First Division, per Gancayco, J.
21 G.R. No. 85177, Third Division, per Gutierrez, Jr., J:
22 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868.
23 Sec. 12, Rule 126 in relation to Sec. 5, Rule 113 of the 1985 Rules of Criminal
Procedure.
24 SEE footnote 20, supra.
25 Attention may be drawn, in this connection, to the Resolution of May 24, 1990
in G.R. No. 83988 (Valmonte v. de Villa, [Sept. 29, 1989], 178 SCRA 211) where
the Court cited with approval a ruling of the U.S. Supreme Court that
"Automobiles, because of their mobility, may be searched without a warrant upon
facts not justifying a warrantless search of a residence or office. Brinegar v. United
States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302 (1949); Carroll v. United States,
267 US 132, 69 L Ed 543, 45 S Ct 280, 39 ALR 790 (1952). The cases so holding
have, however, always insisted that the officers conducting the search have
"reasonale or probable cause" to believe that they will find the instrumentality of a
crime or evidence pertaining to a crime before they begin their warrantless search.
. . . (Dyke v. Taylor, 391 US 216, 20 L Ed 538, 88 S Ct 1472)."
26 SEEFootnotes 9 and 13, supra.
27 Citing Carroll v. U.S., 267 U.S. 132, 153 (1925).
28 ART. III, Sec. 12 (1).
29 Id., Sec. 12 (3); Peo. v. Buenaflor, G.R. No. 62805, Jan. 22, 1990; Peo. v.
Camalog, G.R. No. 77116, Jan. 31, 1989; Peo. v. Lagahan, G.R. No. 78692, Dec. 8,
1988; Peo. v. Newman, G.R. No. 45354, July 26, 1988.
30 Peo. v. Hizon, G.R. No. 71273, July 29, 1988, per Cruz, J.








323

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R.No. 74869 July 6, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was nonetheless
arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving
him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of
P20,000.00.
1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon
9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him
simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him
to their headquarters for investigation. The two bundles of suspect articles were confiscated from
him and later taken to the NBI laboratory for examination. When they were verified as marijuana
leaves, an information for violation of the Dangerous Drugs Act was filed against him.
2
Later, the
information was amended to include Farida Ali y Hassen, who had also been arrested with him
that same evening and likewise investigated.
3
Both were arraigned and pleaded not
guilty.
4
Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a
sworn statement of the arresting officers absolving her after a 'thorough investigation."
5
The
motion was granted, and trial proceeded only against the accused-appellant, who was eventually
convicted .
6

According to the prosecution, the PC officers had earlier received a tip from one of their informers
that the accused-appellant was on board a vessel bound for Iloilo City and was carrying
marijuana.
7
He was Identified by name.
8
Acting on this tip, they waited for him in the evening
of June 25, 1984, and approached him as he descended from the gangplank after the informer
had pointed to him.
9
They detained him and inspected the bag he was carrying. It was found to
contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic
examiner,
10
who testified that she conducted microscopic, chemical and chromatographic tests
on them. On the basis of this finding, the corresponding charge was then filed against
Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his
clothing consisting of a jacket, two shirts and two pairs of pants.
11
He alleged that he was
arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search
warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the
marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he
parried the blows while he was still handcuffed.
12
He insisted he did not even know what
marijuana looked like and that his business was selling watches and sometimes cigarettes.
13
He
324

also argued that the marijuana he was alleged to have been carrying was not properly Identified
and could have been any of several bundles kept in the stock room of the PC headquarters.
14

The trial court was unconvinced, noting from its own examination of the accused that he claimed
to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from
Jolo for that purpose and spending P107.00 for fare, not to mention his other
expenses.
15
Aminnudin testified that he kept the two watches in a secret pocket below his belt
but, strangely, they were not discovered when he was bodily searched by the arresting officers
nor were they damaged as a result of his manhandling.
16
He also said he sold one of the watches
for P400.00 and gave away the other, although the watches belonged not to him but to his
cousin,
17
to a friend whose full name he said did not even know.
18
The trial court also rejected
his allegations of maltreatment, observing that he had not sufficiently proved the injuries
sustained by him.
19

There is no justification to reverse these factual findings, considering that it was the trial judge
who had immediate access to the testimony of the witnesses and had the opportunity to weigh
their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush
of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the
impersonal record. But the trial judge sees all of this, discovering for himself the truant fact
amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that the accused-
appellant was not really beaten up because he did not complain about it later nor did he submit
to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and in fact has never
been set free since he was arrested in 1984 and up to the present. No bail has been allowed for
his release.
There is one point that deserves closer examination, however, and it is Aminnudin's claim that
he was arrested and searched without warrant, making the marijuana allegedly found in his
possession inadmissible in evidence against him under the Bill of Rights. The decision did not
even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short
argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b)
of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a
lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution,
that they had no warrant when they arrested Aminnudin and seized the bag he was carrying.
Their only justification was the tip they had earlier received from a reliable and regular informer
who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their
testimony varies as to the time they received the tip, one saying it was two days before the
arrest,
20
another two weeks
21
and a third "weeks before June 25."
22
On this matter, we may
prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as
follows:
Q You mentioned an intelligence report, you mean with respect to
the coming of Idel Aminnudin on June 25, 1984?
A Yes, sir.
Q When did you receive this intelligence report?
A Two days before June 25, 1984 and it was supported by reliable
sources.
325

Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984
we have already reports of the particular operation which was being
participated by Idel Aminnudin.
Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?
A Yes, sir.
Q Did you receive any other report aside from this intelligence
report?
A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling
operation.
COURT:
Q Previous to that particular information which you said two days
before June 25, 1984, did you also receive daily report regarding
the activities of Idel Aminnudin
A Previous to June 25, 1984 we received reports on the activities of
Idel Aminnudin.
Q What were those activities?
A Purely marijuana trafficking.
Q From whom did you get that information?
A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot Identify the
person.
Q But you received it from your regular informer?
A Yes, sir.
ATTY. LLARIZA:
Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?
A Marijuana, sir.
Q And this information respecting Idel Aminnudin's coming to Iloilo
with marijuana was received by you many days before you received
the intelligence report in writing?
326

A Not a report of the particular coming of Aminnudin but his
activities.
Q You only knew that he was coming on June 25,1984 two days
before?
A Yes, sir.
Q You mean that before June 23, 1984 you did not know that
minnudin was coming?
A Before June 23,1984, I, in my capacity, did not know that he was
coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his
activities, we have reports that he was already consummated the
act of selling and shipping marijuana stuff.
COURT:
Q And as a result of that report, you put him under surveillance?
A Yes, sir.
Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
A Yes, sir.
Q Are you sure of that?
A On the 23rd he will be coming with the woman.
Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?
A Only on the 23rd of June.
Q You did not try to secure a search warrant for the seizure or
search of the subject mentioned in your intelligence report?
A No, more.
Q Why not?
A Because we were very very sure that our operation will yield
positive result.
Q Is that your procedure that whenever it will yield positive result
you do not need a search warrant anymore?
A Search warrant is not necessary.
23

327

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of
the PC. The Supreme Court cannot countenance such a statement. This is still a government of
laws and not of men.
The mandate of the Bill of Rights is clear:
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.
In the case at bar, there was no warrant of arrest or search warrant issued by a judge after
personal determination by him of the existence of probable cause. Contrary to the averments of
the government, the accused-appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest allowed under Rule 113
of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the
warrant as in the case of Roldan v. Arca,
24
for example. Here it was held that vessels and
aircraft are subject to warrantless searches and seizures for violation of the customs law because
these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be
secured.
The present case presented no such urgency. From the conflicting declarations of the PC
witnesses, it is clear that they had at least two days within which they could have obtained a
warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was Identified. The date of its arrival was certain. And from the
information they had received, they could have persuaded a judge that there was probable cause,
indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply
with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the
head of the arresting team, had determined on his own authority that a "search warrant was not
necessary."
In the many cases where this Court has sustained the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of
what are popularly called "buy-bust" operations of the narcotics agents.
25
Rule 113 was clearly
applicable because at the precise time of arrest the accused was in the act of selling the
prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done so. What he was
doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication
that called for his arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive
finger that triggered his arrest. The Identification by the informer was the probable cause as
determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin
and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years of the
despised dictatorship, when any one could be picked up at will, detained without charges and
punished without trial, we will have only ourselves to blame if that kind of arbitrariness is
allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties
its Bill of Rights guarantees.
328

While this is not to say that the accused-appellant is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not justify a finding that he is guilty. The
constitutional presumption is that he is innocent, and he will be so declared even if his defense
is weak as long as the prosecution is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the
prosecution must fall. That evidence cannot be admitted, and should never have been considered
by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the
poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a
lawful arrest because there was no warrant of arrest and the warrantless arrest did not come
under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also
illegal and the evidence obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law-enforcement officers against those who would inflict this
malediction upon our people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the
protection of the liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty alike against
any manner of high- handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice
Holmes, again, said, "I think it a less evil that some criminals should escape than that the
government should play an ignoble part." It is simply not allowed in the free society to violate a
law to enforce another, especially if the law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence against the accused-
appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be
discharged on the presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea, JJ., concur.


Separate Opinions

AQUINO, J., dissenting:
I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying
marijuana leaves in his bag at the moment of his arrest. He was not "innocently disembarking
from the vessel." The unauthorized transportation of marijuana (Indian hemp), which is a
prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his
arrest could be lawfully effected without a warrant (Sec. 6a, Rule 113, Rules of Court), and the
search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful
(Sec. 12, Rule 126, Rules of Court). I vote to affirm the judgment of the trial court finding him
guilty of illegally transporting marijuana.
329

Separate Opinions
AQUINO, J., dissenting:
I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying
marijuana leaves in his bag at the moment of his arrest. He was not "innocently disembarking
from the vessel." The unauthorized transportation of marijuana (Indian hemp), which is a
prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his
arrest could be lawfully effected without a warrant (Sec. 6a, Rule 113, Rules of Court), and the
search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful
(Sec. 12, Rule 126, Rules of Court). I vote to affirm the judgment of the trial court finding him
guilty of illegally transporting marijuana.
Footnotes
1 Rollo, p. 29.
2 Ibid., p. 2.
3 Original Records, p. 6.
4 Ibid., p. 20.
5 "Exh. 1," Original Records, p. 204.
6 Original Records, p. 26.
7 TSN, Sept. 19, 1984, p. 5; Oct. 25, 1984, p. 31.
8 TSN, Oct. 25, 1984, p. 29.
9 TSN, Sept. 19, 1984, pp. 6-7.
10 TSN, Sept. 5, 1984, pp. 8-10.
11 TSN, Aug. 15, 1985, p. 3.
12 Ibid., pp. 8-9; 19-20.
13 Id., pp. 10 & 13.
14 Brief for the Appellant, p. 22.
15 Rollo, p. 28.
16 TSN, Aug. 15, 1985, pp. 17-18; 22-24.
17 Ibid., p. 29.
18 Id., p. 4.
19 Rollo, p. 28.
20 TSN, Oct. 25, 1984, p. 31.
21 TSN, Sept. 19, 1984, p. 19.
22 TSN, Oct. 25, 1984, p. 12.
23 TSN, Oct. 25, 1984, pp. 31-33.
24 65 SCRA 336.
25 People v. Rubio, 142 SCRA 329; People v. Madarang, 147 SCRA 123; People v. Sarmiento, 147
SCRA 252; People v. Cerelegia; 147 SCRA 538; People v. Fernando, G.R. No. L-68409, December 1,
1987.









330

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 110995 September 5, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALVARO SAYCON y BUQUIRAN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Francisco S. Garcia and Marcelo G. Flores for accused-appellant.

FELICIANO, J.:
Alvaro Saycon was charged with violating Section 15, Article III of R.A. No. 6425 as amended, the
Dangerous Drugs Act, in an information which read as follows:
That on or about the 8th day of July 1992, in the City of Dumaguete, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, not being
then authorized by law, did, then and there wilfully, unlawfully and feloniously,
deliver and transport[] from Manila to Dumaguete City approximately 4 grams of
methamphetam[ine] hydrochloride commonly known as "shabu," a regulated drug.
Contrary to Sec. 15, Art. III of R.A. 6425 (Dangerous Drugs Act) as amended.
1
(Brackets
supplied)
At arraignment, Alvaro Saycon entered a plea of not guilty.
After trial, the trial court rendered, on 15 June 1993, a judgment of conviction. The court found
Saycon guilty beyond reasonable doubt of having transported four (4) grams of metamphetamine
hydrochloride ("shabu") and sentenced him to life imprisonment and to pay a fine of
P20,000.00.
2

The relevant facts as found by the trial court were gleaned from the testimonies of the arresting
officers Senior Police Officers Winifredo S. Noble and Ruben Laddaran of the Narcotics
Command, PNP; Police Officer Emmanuelito C. Lajot of the Philippine Coastguard Office in
Dumaguete City; and Forensic Analyst N.G. Salinas of the PNP Crime Laboratory. The trial court
summarized the facts in the following manner:
. . . that on or about 8 July 1992, at about 6:00 in the morning, the Coastguard
personnel received information from NARCOM agent Ruben Laddaran that a
suspected "shabu" courier by the name of Alvaro Saycon was on board the
MV Doa Virginia, which was arriving at that moment in Dumaguete City. Upon
receipt of the information, the Coastguard chief officer CPO Tolin, instructed them
to intercept the suspect. A combined team of NARCOM agents and Philippine
Coastguard personnel consisting of CPO Tolin, a certain Miagme, and Senior
331

Police Officers Ruben Laddaran and Winifredo Noble of NARCOM posted
themselves at the gate of Pier 1.
The MV Doa Virginia docked at 6:00 a.m. that same morning at Pier 1 in
Dumaguete City. Alvaro Saycon alighted from the boat carrying a black bag and
went through the checkpoint manned by the Philippine Coastguard where he was
identified by police officer Winifredo Noble of NARCOM. Saycon was then invited to
the Coastguard Headquarters at the Pier area. He willingly went with them. At the
headquarters, the coastguard asked Saycon to open his bag, and the latter
willingly obliged. In it were personal belongings and amaong wallet. Inside
that maong wallet, there was a Marlboro pack containing the suspected "shabu".
When police officer Winifredo Noble asked Saycon whether the Marlboro pack
containing the suspected "shabu" was his, Saycon merely bowed his head. Then
Saycon, his bag and the suspected "shabu" were brought to the NARCOM office for
booking. When Alvaro Saycon was arrested, the NARCOM agents did not have a
warrant of arrest.
3

After the arrest of Saycon, the suspected drug material taken from him was brought to the PNP
Crime Laboratory in Cebu City for chemical examination.
The PNP's Forensic Analyst declared in court that she had conducted an examination of the
specimens which had been taken from appellant Saycon and submitted to the Crime Laboratory
on 9 July 1992. Her findings were, basically, that the specimens she examined weighing 4.2
grams in total, consisted of the regulated drug methamphetamine hydrochloride, more widely
known as
"shabu."
4

For his part, appellant Saycon denied ownership of the "shabu" taken from his black bag. He
claimed that upon disembarking from the ship at the pier in Dumaguete City, he was met by two
(2) unfamiliar persons who snatched his bag from him. Thereafter, he was taken to the office of
the port collector, at gunpoint, and there his bag was searched by four (4) men despite his
protests. The four (4) persons were later identified by appellant Saycon as Noble, Sixto, Edjec and
Ruben Laddaran. When appellant Saycon asked why his belongings were being searched, the
four (4) answered that there was "shabu" inside his bag. After the search of his bag, appellant
continued, he was shown a small wallet purportedly taken from his black bag which contained
"shabu." Appellant Saycon was then detained at the Dumaguete City Jail.
5

In his appeal before this Court seeking reversal of the decision of the court a quo finding him
guilty of the crime charged, Saycon contends that the search of his bag was illegal because it had
been made without a search warrant and that, therefore, the "shabu" discovered during the
illegal search was inadmissible in evidence against him.
It is not disputed that the arresting officers were not armed with a search warrant or a warrant of
arrest when they searched Saycon's bag and thereafter effected his arrest.
The relevant constitutional provisions are set out in Sections 2 and 3 [2], Article III of the 1987
Constitution which read as follows:
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
issued except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witness as he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
332

Sec. 3. xxx xxx xxx
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
The general rule, therefore, is that the search and seizure must be carried out through or with a
judicial warrant; otherwise, such search and seizure becomes "unreasonable" within the meaning
of the above constitutional provisions.
6
The evidence secured in the process of search and
seizure i.e., the "fruits" thereof will be inadmissible in evidence "for any purpose in any
proceeding.
7

The requirement that a judicial warrant must be obtained prior to the carrying out of a search
and seizure is, however, not absolute. "There are certain exceptions recognized in our law," the
Court noted in People v. Barros.
8
The exception which appears most pertinent in respect of the
case at bar is that relating to the search of moving vehicles.
9
In People v. Barros, the Court said:
Peace officers may lawfully conduct searches of moving vehicles automobiles,
trucks, etc. without need of a warrant, it not being practicable to secure a
judicial warrant before searching a vehicle, since such vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant may be sought.
(People v. Bagista, supra; People v. Lo Ho Wing, supra) In carrying out warrantless
searches of moving vehicles, however, peace officers are limited to routine checks,
that is, the vehicles are neither really searched nor their occupants subjected to
physical or body searches, the examination of the vehicles being limited to visual
inspection. In Valmonte v. De Villa (178 SCRA 211 [1989]), the Court stated:
[N]ot all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to
the facts of each case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply
looks into a vehicle, or flashes a light therein, these do not
constitute unreasonable search. (Citations omitted)
When, however, a vehicle is stopped and subjected to an extensive search, such a
warrantless search would be constitutionally permissible only if the officers
conducting the search have reasonable or probable cause to believe, before the
search, that either the motorist is a law-offender or the contents or cargo of the
vehicle are or have been instruments or the subject matter or the proceeds of
some criminal offense. (People v. Bagista, supra; Valmonte v. de Villa, 185 SCRA
665 [1990]).
While the analogy is perhaps not perfect, we consider that appellant Saycon stands in the same
situation as the driver or passenger of a motor vehicle that is stopped by police authorities and
subjected to an extensive search. In this situation, the warrantless search and arrest of appellant
Saycon would be constitutionally permissible only if the officer conducting the search had
reasonable or probable cause to believe, before the search, that Saycon who had just
disembarked from the MV Doa Virginia upon arrival of that vessel at 6:00 a.m. of 8 July 1992 at
Pier I of Dumaguete city, was violating some law or that the contents of his luggage included
some instrument or the subjects matter or the proceeds of some criminal offense.
It is important to note that unlike in the case of crimes like, e.g., homicide, murder, physical
injuries, robbery or rape which by their nature involve physical, optically perceptible, overt acts,
333

the offense of possessing or delivering or transporting some prohibited or regulated drug is
customarily carried out without any external signs or indicia visible to police officers and the rest
of the outside world. Drug "pushers" or couriers do not customarily go about their enterprise or
trade with some external visible sign advertising the fact that they are carrying or distributing or
transporting prohibited drugs. Thus, the application of the rules in Section 5 (a) and (b), Rule
133 of the Rules of Court needs to take that circumstance into account. The Court has had to
resolve the question of valid or invalid warrantless arrest or warrantless search or seizure in
such cases by determining the presence or absence of a reasonable or probable cause, before the
search and arrest, that led the police authorities to believe that such a felony (possessing or
transporting or delivering prohibited drugs) was then in progress. In Barros, the Court listed the
kinds of causes which have been characterized as probable or reasonable cause supporting the
legality and validity of a warrantless search and a warrantless arrest in cases of this type:
This Court has in the past found probable cause to conduct without a judicial
warrant an extensive search of moving vehicles in situations where (1) there had
emanated from a package the distinctive smell of marijuana (People v. Claudio,
160 SCRA 646 [1988]); (2) agents of the Narcotics Command ("Narcom") of the
Philippine National Police ("PNP") had received a confidential report from informers
that a sizeable volume of marijuana would be transported along the route where
the search was conducted (People v. Maspil, 188 SCRA 751 [1990]); (3) Narcom
agents were informed or "tipped off" by an undercover "deep penetration" agent
that prohibited drugs would be brought into the country on a particular airline
flight on a given date (People v. Lo Ho Wing, supra); (4) Narcom agents had
received information that a Caucasian coming from Sagada, Mountain Province,
had in his possession prohibited drugs and when the Narcom agents confronted
the accused Caucasian, because of as conspicuous bulge in this waistline, he
failed to present his passport and other identification papers when requested to do
so (People v. Malmstedt, 198 SCRA 401 [1991]); and (5) Narcom agents had
received confidential information that a woman having the same physical
appearance as that of the accused would be transporting marijuana (People v.
Bagista, supra.).
Close examination of the record of the case at bar shows that there did exist reasonable or
probable cause to believe that appellant Alvaro Saycon would be carrying or transporting
prohibited drugs upon arriving in Dumaguete City on the MV Doa Virginia on 8 July 1992. This
probable cause in fact consisted of two (2) parts. Firstly, Senior Police Officer Winifredo Noble
had testified in court that the NARCOM Agents had, approximately three (3) weeks before 8 July
1992, conducted a test-buy which confirmed that appellant Saycon was indeed engaged in
transporting and selling "shabu." The police authorities did not, on that occasion, arrest Alvaro
Saycon, but what should be noted is that the identity of Saycon as a drug courier or drug
distributor was established in the minds of the police authorities.
10
Secondly, the arresting
officers testified that they had received confidential information that very early morning of 8 July
1992, Alvaro Saycon would probably be on board the MV Doa Virginia which was scheduled to
arrive in Dumaguete City at 6:00 a.m. on 8 July 1992, probably carrying "shabu" with him.
In respect of the first element of the probable cause here involved, the testimony of Police Officer
Winifredo Noble had not been denied or rebutted by the defense; as it happened, Officer Noble
was not even cross-examined on this point by defense counsel.
In respect of the second element of the probable cause here involved, appellant Saycon
contended that the testimonies of the prosecution witnesses showed that the NARCOM Agents
knew three (3) weeks before 8 July 1992 that the MV Doa Virginia would be arriving and that
the would probably be on board that vessel. It was argued by Saycon that the police authorities
should have procured, and had the time to procure, the necessary judicial warrants for search
and arrest. Saycon also sought to underscore a supposed confusion in the testimonies of
NARCOM Officer Winifredo Noble and Coastguard Officer Lajot relating to who, as between the
334

NARCOM agent and the Coastguard elements, had informed the other that appellant would
probably be arriving on board the MVDoa Virginia. The relevant portion of NARCOM Agent
Winifredo Noble's testimony includes the following:
Q: Despite the lapse of three (3) weeks, more or less, from acquiring
knowledge through this informant, did you not secure the
necessary search warrant and warrant of arrest on the effect(s) and
person of the subject Alvaro Saycon?
A: All the time we were only informed by the Coastguard that this
certain fellow in the name of Alvaro Saycon is travelling through
and through from Manila to Dumaguete will be carrying shabu
from Manila to Dumaguete and we could not ascertain (with) the
time when he will be at the pier area.
Q: You have not answered my question. My question is: Despite the
lapse of more than three (3) weeks upon being informed by your
informer that this Alvaro Saycon, the accused in this case, has been
a courier from time to time of prohibited drugs, did you not bother to
secure the necessary warrant: search as well as the arrest?
A: As I said earlier, we could not obtain the necessary search
warrant to that effect because we do not know or ascertain when
Alvaro Saycon will arrive [from] Manila. On that particular morning,
we were informed by the Coastguard that Doa Virginia would be
arriving and they told us that probably this suspect will be among
the passengers, so you better come over and (to) identify the
subject.
11
(Emphasis supplied)
Upon the other hand, Coastguard Police Officer Emmanuelito Lajot, Jr. testified in the following
way:
Q: What time were you in your office?
A: Before 6:00 o'clock, I was there.
xxx xxx xxx
Q: While you were there, did you receive any communication?
A: Yes.
Q: What communication was that?
A: That a certain Alvaro Saycon was on board MV Doa Virginia
arriving at 6:00 o'clock in the morning?
Q: Who gave you that information?
A: Ruben Laddaran(a).
Q: Who is this Ruben Laddaran?
A: NARCOM Agent.
12
(Emphasis supplied)
335

If there was any confusion or uncertainty in the testimonies of NARCOM Officer Noble
and Coastguard Officer Lajot, that confusion was a minor detail. It was in any case
clarified by NARCOM Officer Noble's explanation that after the NARCOM Command had
received information appellant Saycon would be transporting drugs from Manila to
Dumaguete City, they advised the Coastguard that they (the Narcotics Command) wanted
to set up a checkpoint at Pier I at Dumaguete City because appellant Saycon could be on
board one of the vessels arriving in Dumaguete City. The Coastguard in turn informed the
NARCOM Officers of the arrival of the MV Doa Virginia and assisted the NARCOM
Officers in their operation that morning of 8 July 1992.
The record shows that the NARCOM Officers were uncertain as to the precise date and time
appellant Saycon would arrive from Manila; all they knew was that Saycon would be taking a
boat from Manila to Dumaguete City Pier.
13
The MV Doa Virginia docked at the Port of Pier I of
Dumaguete City between 6:00 and 6:30 in the morning of 8 July 1992. Earlier on that same
morning, the NARCOM Officers received more specific information that appellant Saycon could
be on board the MV Doa Virginia which was arriving that morning.
14
Clearly, the NARCOM
Agents had to act quickly but there was not enough time to obtain a search warrant or a warrant
of arrest. It was realistically not possible for either the NARCOM Agents or the Coastguard
Officers to obtain a judicial search warrant or warrant of arrest in the situation presented by the
case at
bar.
15

The Court considers, therefore, that a valid warrantless search had been conducted by the
NARCOM and Coastguard Officers of the "black bag" of appellant Saycon that morning of 8 July
1992 at the checkpoint nearby the docking place of the MV Doa Virginia and at the office of the
Coastguard at Dumaguete City. It follows that the warrantless arrest of appellant Saycon which
ensued forthwith, was also valid and lawful, since the police had determined, he was in fact
carrying or transporting "shabu." The further consequence is that the four (4) grams of "shabu"
obtained from his maong wallet found inside his black bag was lawfully before the court a quo.
We agree with the court a quo that the evidence before the latter proved beyond reasonable doubt
that appellant Saycon had been carrying with him "shabu" at the time of his search and arrest
and his guilt of the offense charged was established beyond reasonable doubt.
In view of the foregoing, the decision of the trial court dated 15 June 1993, in Criminal Case No.
10325, should be affirmed, but the penalty properly impassable upon appellant Alvaro Saycon
must be reduced to imprisonment for an indeterminate period ranging from six (6) months
of arresto mayor as minimum to six (6) years of prision correctional as maximum, and the fine of
P20,000.00 must be deleted. This reduction of penalty is required by the provisions of Section
20, Article IV of R.A. NO. 6425, as last amended by Section 17, of R.A. No. 7659 (effective 13
December 1993) as construed and given retroactive effect in People v. Martin Simon (G.R. No.
93028, 29 July 1994) considering that the amount of "shabu" here involved (four [4] grams) is
obviously less than the 200 grams of "shabu" cut-off quantity established in the amended Section
20 of the Dangerous Drugs Act.
WHEREFORE, for all the foregoing, the decision of the trial court in Criminal Case No. 10325, is
hereby AFFIRMED, with the MODIFICATIONS, however, that appellant shall suffer imprisonment
for an indeterminate period ranging from six (6) months of arresto mayor as minimum to six (6)
years of prision correctional as maximum, and that the fine of P20,000.00 shall be DELETED. No
pronouncement as to costs.
SO ORDERED.
Romero, Melo, and Vitug, JJ., concur.
Bidin, J., is on leave.
336


#Footnotes
1 RTC Decision, p. 1; Rollo, p. 26.
2 RTC Decision, p. 6; Rollo, p. 36.
3 RTC Decision pp. 2-4; Rollo, p. 32-34.
4 TSN, Testimony of Mutchit Salinas, 8 February 1993, pp. 8-9.
5 RTC Decision, p. 5; Rollo, p. 35.
6 Pita v. Court of Appeals, 178 SCRA 362 (1989).
7 People v. Zapanta, 195 SCRA 200 (1991); People v. Dendana, 190 SCRA 538
(1990); People v. Aminnudin, 163 SCRA 402 (1988).
8 G.R. No. 90640, 29 March 1994.
9 See People v. Bagista, 214 SCRA 63 (1992); People v. Rodriguez, 205 SCRA 791
(1992); People v. Lo Ho Wing, 193 SCRA 122 (1991); Manipon v. Sandiganbayan,
143 SCRA 267 (1986).
10 TSN, Testimony of SPO1 Winifredo Noble, 14 December 1992, pp. 20-21.
11 TSN, 14 December 1992, pp. 15-16.
12 TSN, 15 December 1992, p. 5.
13 TSN, Testimony of SPO2 Ruben Laddaran, 14 December 1992, p. 24.
14 TSN, Testimony of SPO1 Winifredo Noble, 14 December 1992, pp. 15-17;
Appellee's Brief,
p. 3.
15 This particular factor serves to distinguish the case of People v. Aminnudin,
163 SCRA 402 (1988), from the case at bar; see in this connection, People v.
Maspil, 188 SCRA 751 at 762 (1990). See also People v. Tangliben, 184 SCRA 220
at 225-226 (1990).
In Aminnudin, Mr. Justice Cruz stressed that the police authorities had received
the "tip" from "a reliable and regular informer" that Aminnudin would be arriving
in Iloilo City by boat with marijuana. The testimony of the prosecution witnesses
had varied in respect of the time that they had received that "tip:" one stated that
it was received two (2) days before the arrest; another "two (2) weeks;" and a third
"weeks before June 25." (People v. Aminnudin, 163 SCRA at 406). Cruz, J., said:
The present case presented no such urgency. From the conflicting declarations of
the PC witnesses,it is clear that they had at least two weeks within which they
could have obtained a warrant to arrest and search Aminnudin who was coming to
Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The
337

date of its arrival was certain. And from the information they had received,they
could have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to comply with the
law. The Bill of Rights was ignored altogether because the PC lieutenant who was
the head of the arresting team, had determined on his own authority that a 'search
warrant was not necessary.' (Emphasis supplied; 163 SCRA at 409)

























338

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 96177 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.

ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31,
1990,
1
of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of
selling marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
That on or about December 14, 1989, in the City of Zamboanga, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully,
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers
containing dried marijuana leaves, knowing the same to be a prohibited drug.
CONTRARY TO LAW.
2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.
3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the
9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-
bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics
Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and
(3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime
Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized
by the trial court as follows:
Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt.
Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at
Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and
test buy on a certain Mari Musa of Suterville, Zamboanga City. Information
received from civilian informer was that this Mari Musa was engaged in selling
marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to
Suterville, in company with a NARCOM civilian informer, to the house of Mari
339

Musa to which house the civilian informer had guided him. The same civilian
informer had also described to him the appearance of Mari Musa. Amado Ani was
able to buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt.
Ani returned to the NARCOM office and turned over the newspaper-wrapped
marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to
him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt.
Amado Ani was assigned as the poseur buyer for which purpose he was given
P20.00 (with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali
Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt
(Exh. "L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up
security. A pre-arranged signal was arranged consisting of Sgt. Ani's raising his
right hand, after he had succeeded to buy the marijuana. The two NARCOM teams
proceeded to the target site in two civilian vehicles. Belarga's team was composed
of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt.
Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the
rest of the NARCOM group positioned themselves at strategic places about 90 to
100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on
between Ani and suspect Mari Musa from where he was. Ani approached Mari
Musa, who came out of his house, and asked Ani what he wanted. Ani said he
wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After
receiving the money, Mari Musa went back to his house and came back and gave
Amado Ani two newspaper wrappers containing dried marijuana. Ani opened the
two wrappers and inspected the contents. Convinced that the contents were
marijuana, Ani walked back towards his companions and raised his right hand.
The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani.
Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside
his house: Mari Musa, another boy, and two women, one of whom Ani and Belarga
later came to know to be Mari Musa's wife. The second time, Ani with the
NARCOM team returned to Mari Musa's house, the woman, who was later known
as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa
but could not find the P20.00 marked money with him. Mari Musa was then asked
where the P20.00 was and he told the NARCOM team he has given the money to
his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing
dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed
under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned
over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought
from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on,
Mari Musa gave his true name Mari Musa. T/Sgt. Jesus Belarga turned over
the two newspaper-wrapped marijuana (bought at the buy-bust), the one
newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag
containing more marijuana (which had been taken by Sgt. Lego inside the kitchen
of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory
examination. The turnover of the marijuana specimen to the PC Crime Laboratory
was by way of a letter-request, dated December 14, 1989 (Exh. "B"), which was
stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the same day.
340

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her three tests. All
submitted specimens she examined gave positive results for the presence of
marijuana. Mrs. Anderson reported the results of her examination in her
Chemistry Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-
3", "J-4" and "J-5"). Mrs. Anderson identified in court the two newspaper wrapped
marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight of each
specimen written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also
identified the one newspaper-wrapped marijuana bought at the test-buy on
December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson also
identified her Chemistry Report (Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through
his initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M."
(written on Exhs. "C" and "D"). Belarga also identified the receipt of the P20
marked money (with SN GA955883) (Exh. "L"), dated December 14, 1989, and his
signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed
to the PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and
the stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").
4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and
(2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his
house at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known
as Ara, his one-year old child, a woman manicurist, and a male cousin named
Abdul Musa. About 1:30 that afternoon, while he was being manicured at one
hand, his wife was inside the one room of their house, putting their child to sleep.
Three NARCOM agents, who introduced themselves as NARCOM agents, dressed
in civilian clothes, got inside Mari Musa's house whose door was open. The
NARCOM agents did not ask permission to enter the house but simply announced
that they were NARCOM agents. The NARCOM agents searched Mari Musa's
house and Mari Musa asked them if they had a search warrant. The NARCOM
agents were just silent. The NARCOM agents found a red plastic bag whose
contents, Mari Musa said, he did not know. He also did not know if the plastic bag
belonged to his brother, Faisal, who was living with him, or his father, who was
living in another house about ten arms-length away. Mari Musa, then, was
handcuffed and when Mari Musa asked why, the NARCOM agents told him for
clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office
at Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was
investigated by one NARCOM agent which investigation was reduced into writing.
The writing or document was interpreted to Mari Musa in Tagalog. The document
stated that the marijuana belonged to Mari Musa and Mari Musa was asked to
sign it. But Mari Musa refused to sign because the marijuana did not belong to
him. Mari Musa said he was not told that he was entitled to the assistance of
counsel, although he himself told the NARCOM agents he wanted to be assisted by
counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand
and his fingers were pressed which felt very painful. The NARCOM agents boxed
him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said
his wife was outside the NARCOM building. The very day he was arrested (on
341

cross-examination Mari Musa said it was on the next day), Mari Musa was
brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the
marijuana was owned by him and he said "not." After that single question, Mari
Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that
he had been maltreated by the NARCOM agents because he was afraid he might
be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had
given to his wife. He did not sell marijuana because he was afraid that was against
the law and that the person selling marijuana was caught by the authorities; and
he had a wife and a very small child to support. Mari Musa said he had not been
arrested for selling marijuana before.
5

After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable
doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he
is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter
imposed without subsidiary imprisonment.
6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt
and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1)
prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally
known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the
two wrappers of marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he
conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana
for P15.00 from the latter.
7
He reported the successful operation to T/Sgt. Belarga on the same
day.
8
Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for
the following day.
9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt.
Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's
house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of
T/Sgt. Belarga, whose other members were Sgts. Lego and Biong.
10
Sgt. Ani was given a marked
P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places.
11
Sgt.
Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt.
Ani asked him for some more marijuana.
12
Sgt. Ani gave him the marked P20.00 bill and the
appellant went inside the house and brought back two paper wrappers containing marijuana
which he handed to Sgt. Ani.
13
From his position, Sgt. Ani could see that there were other people
in the house.
14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged
signal of raising his right hand.
15
The NARCOM agents, accompanied by Sgt. Ani, went inside
the house and made the arrest. The agents searched the appellant and unable to find the
marked money, they asked him where it was. The appellant said that he gave it to his wife.
16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-
bust operation, which resulted in the apprehension, prosecution and subsequent conviction of
342

the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any
of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not
know each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the
appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during
the buy-bust operation. Moreover, the Court has held that what matters is not an existing
familiarity between the buyer and the seller, for quite often, the parties to the transaction may be
strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.
17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for
the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place
of the commission of the crime of selling prohibited drugs has been held to be not crucial
18
and
the presence of other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco,
19
these factors may
sometimes camouflage the commission of the crime. In the instant case, the fact that the other
people inside the appellant's house are known to the appellant may have given him some
assurance that these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt.
Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters
away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The
appellant invokes People v.
Ale
20
where the Court observed that from a distance of 10-15 meters, a policeman cannot
distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the
cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends
that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his
companion were certain that the appellant therein handed marijuana cigarettes to the poseur-
buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the prosecution witnesses
marked as they are with contradictions and tainted with inaccuracies.
Bian testified that they were able to tell that the four cigarettes were marijuana
cigarettes because according to him, the rolling of ordinary cigarettes are different
from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done
on those cigarettes from the distance where they were observing the alleged sale of
more or less 10 to 15 meters.
21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant
hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles
between the two. The relevant portion of T/Sgt. Belarga's testimony reads:
22

Q Now, do you remember whether Sgt. Ani was able to reach the
house of Mari Musa?
A Yes, ma'am.
343

Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego,
Sgt. Biong were boarded, I saw that Sgt. Ani proceeded to the house
near the road and he was met by one person and later known as
Mari Musa who was at the time wearing short pants and later on I
saw that Sgt. Ani handed something to him, thereafter received by
Mari Musa and went inside the house and came back later and
handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have
seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the
latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani
received from the appellant was marijuana because of the distance, his testimony, nevertheless,
corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by
Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a
surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December
13, 1989;
23
(2) later that same day, Sgt. Ani went back to their office and reported a successful
operation and turned over to T/Sgt. Belarga one wrapper of marijuana;
24
(3) T/Sgt. Belarga then
organized a team to conduct a buy-bust operation the following day;
25
(4) on December 14,
1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga
City;
26
(5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-
bust operation;
27
(6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt.
Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others
positioned themselves in strategic places;
28
the appellant met Sgt. Ani and an exchange of
articles took place.
29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani.
Additionally, the Court has ruled that the fact that the police officers who accompanied the
poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of
their distance or position will not be fatal to the prosecution's case
30
provided there exists other
evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to
prove the consummation of the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag containing
marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt.
Ani gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested
the appellant inside the house. They searched him to retrieve the marked money but didn't find
it. Upon being questioned, the appellant said that he gave the marked money to his
wife.
31
Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt.
Belarga described as a "cellophane colored white and stripe hanging at the corner of the
kitchen."
32
They asked the appellant about its contents but failing to get a response, they opened
it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the
plastic bag and the marijuana it contains but the trial court issued an Order ruling that these
are admissible in evidence.
33

Built into the Constitution are guarantees on the freedom of every individual against
unreasonable searches and seizures by providing in Article III, Section 2, the following:
344

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 witness he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v.
Diokno,
34
declares inadmissible, any evidence obtained in violation of the freedom from
unreasonable searches and seizures.
35

While a valid search warrant is generally necessary before a search and seizure may be effected,
exceptions to this rule are recognized. Thus, in Alvero v. Dizon,
36
the Court stated that. "[t]he
most important exception to the necessity for a search warrant is the right of search and seizure
as an incident to a lawful arrest."
37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure
incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the
arresting officer to make a search upon the person of the person arrested. As early as 1909, the
Court has ruled that "[a]n officer making an arrest may take from the person arrested any money
or property found upon his person which was used in the commission of the crime or was the
fruit of the crime or which might furnish the prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . . "
38
Hence,
in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may
seize the marked money found on the person
of the pusher immediately after the arrest even without arrest and search warrants.
39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him
in his house but found nothing. They then searched the entire house and, in the kitchen, found
and seized a plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend
beyond the person of the one arrested to include the premises or surroundings under his
immediate control.
40
Objects in the "plain view" of an officer who has the right to be in the
position to have that view are subject to seizure and may be presented as evidence.
41

In Ker v. California
42
police officers, without securing a search warrant but having information
that the defendant husband was selling marijuana from his apartment, obtained from the
building manager a passkey to defendants' apartment, and entered it. There they found the
defendant husband in the living room. The defendant wife emerged from the kitchen, and one of
the officers, after identifying himself, observed through the open doorway of the kitchen, a small
scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy
substance which he recognized as marijuana. The package of marijuana was used as evidence in
prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was
challenged before the U.S. Supreme Court, which held, after observing that it was not
unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the
defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute
a search, since the officer merely saw what was placed before him in full view.
43
The U.S.
345

Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the
"plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's
evidence.
44

The "plain view" doctrine may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of
defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not
searching for evidence against the accused, but nonetheless inadvertently comes across an
incriminating object.
45
Furthermore, the U.S. Supreme Court stated the following limitations on
the application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to supplement the prior justification
whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some
other legitimate reason for being present unconnected with a search directed against the accused
and permits the warrantless seizure. Of course, the extension of the original justification is
legitimate only where it is immediately apparent to the police that they have evidence before
them; the "plain view" doctrine may not be used to extend a general exploratory search from one
object to another until something incriminating at last emerges.
46

It has also been suggested that even if an object is observed in "plain view," the "plain view"
doctrine will not justify the seizure of the object where the incriminating nature of the object is
not apparent from the "plain view" of the object.
47
Stated differently, it must be immediately
apparent to the police that the items that they observe may be evidence of a crime, contraband,
or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living room.
Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the
whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within
their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents
had to move from one portion of the house to another before they sighted the plastic bag.
Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the
adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this
case went from room to room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen,
they had no clue as to its contents. They had to ask the appellant what the bag contained. When
the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v.
California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in
this case could not have discovered the inculpatory nature of the contents of the bag had they
not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across
the plastic bag because it was within their "plain view," what may be said to be the object in their
"plain view" was just the plastic bag and not the marijuana. The incriminating nature of the
contents of the plastic bag was not immediately apparent from the "plain view" of said object. It
cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transprarency, or otherwise, that its contents are obvious to an observer.
48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not
apply and the marijuana contained in the plastic bag was seized illegally and cannot be
presented in evidence pursuant to Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging
effect of the other pieces of evidence presented by the prosecution to prove that the appellant
sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold
346

that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of
marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the
appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court
AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.

# Footnotes
1 Penned by Judge Pelagio S. Mandi.
2 Original Record, p. 1.
3 Id., at 8.
4 RTC Decision, pp. 2-5.
5 RTC Decision, pp- 5-7.
6 Id., at 11.
7 TSN, pp. 18-19.
8 Id., at: 19.
9 Id., at 19-20.
10 Id., at 20.
11 Id., at 21.
12 Id., at 23.
13 TSN, p. 23.
14 Id., at 36.
15 Id., at 23.
16 Id., at 26.
17 People v. Jaymalin, G.R. No. 90452, October 19, 1992 citing People v.
Rodriguez, G.R. No. 81332, April 25, 1989, 172 SCRA 742. Contra People v.
Ventura, G.R. No. 88670, November 19, 1992.
18 People v. Simbulan, G.R. No. 100754, October 13, 1992.
347

19 G.R. No. 76893, February 27, 1989, 170 SCRA 681, 689.
20 G.R. No. 70998, October 14, 1986, 145 SCRA 50.
21 G.R. No. 70998, October 14, 1986, 145 SCRA 50 at 62.
22 TSN, pp. 55-56.
23 TSN, p. 52.
24 Id., at 52-53.
25 Id., at 53.
26 TSN, p. 53.
27 Id., at 54.
28 Id., at 55.
29 Supra, note 22.
30 People v. Santiago, G.R. No. 94472, March 3, 1992; See also People v.
Paco, supra, note 19.
31 TSN, p. 57.
32 Ibid.
33 Original Record, p. 26.
34 G.R. No. L-19550, June 19, 1967, 20 SCRA 383.
35 Article III, Section 3(2).
36 76 Phil. 637 (1946).
37 Id., at 645.
38 Moreno v. Ago Chi, 12 Phil. 439, 442 (1909). See also People v. Veloso, 48 Phil.
169 (1925).
39 People v. Paco, supra, note 19.
40 Marron v. United States, 275 U.S. 192, 72 L. ed. 231 (1927).
41 Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067(1968).
42 374 U.S. 23, 10 L. Ed. 2d 726 (1963).
43 Id., 10 L. Ed. 2d 744.
348

44 Another case where the seizure of marijuana was held valid under the "plain
view" doctrine is Washington v. Chrisman, 455 U.S. 1, 70 L. Ed. 2d 778 (1982).
45 Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 (1971).
46 Id., 29 L. Ed. 2d 583. See also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502
(1983).
47 See concurring opinion by Stewart, Brennan, and White, JJ., in Stanley v.
Georgia 394 U.S. 557, 22 L. Ed. 2d 542 (1969). See also Walter v. United States,
447 U.S. 649, 65 L. Ed. 2d 410 (1980).
48 Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744 (1981).


















349

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 80806 October 5, 1989
LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of
the Court of Appeals,
1
rejecting his appeal from the decision of the Regional Trial Court,
dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty against
unreasonable searches and seizures of the Constitution, as well as its prohibition against
deprivation of property without due process of law. There is no controversy as to the facts. We
quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the
Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-
Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and confiscated from dealers,
distributors, newsstand owners and peddlers along Manila sidewalks, magazines,
publications and other reading materials believed to be obscene, pornographic and
indecent and later burned the seized materials in public at the University belt
along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several
officers and members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance
of the writ of preliminary injunction against Mayor Bagatsing and Narcisco
Cabrera, as superintendent of Western Police District of the City of Manila,
seeking to enjoin and/or restrain said defendants and their agents from
confiscating plaintiffs magazines or from otherwise preventing the sale or
circulation thereof claiming that the magazine is a decent, artistic and educational
magazine which is not per seobscene, and that the publication is protected by the
Constitutional guarantees of freedom of speech and of the press.
By order dated December 8, 1 983 the Court set the hearing on the petition for
preliminary injunction on December 14,1983 and ordered the defendants to show
cause not later than December 13, 1983 why the writ prayed for should not be
granted.
350

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a
temporary restraining order. against indiscriminate seizure, confiscation and
burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition
for preliminary injunction in view of Mayor Bagatsing's pronouncement to
continue the Anti-Smut Campaign. The Court granted the temporary restraining
order on December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant Mayor
Bagatsing admitted the confiscation and burning of obscence reading materials on
December 1 and 3, 1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that the said
confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as
amended by P.D. No. 969, which amended Article 201 of the Revised Penal Code.
In opposing the plaintiffs application for a writ of preliminary injunction,
defendant pointed out that in that anti- smut campaign conducted on December 1
and 3, 1983, the materials confiscated belonged to the magazine stand owners
and peddlers who voluntarily surrendered their reading materials, and that the
plaintiffs establishment was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the issuance of
the writ of preliminary injunction, raising the issue as to "whether or not the
defendants and/or their agents can without a court order confiscate or seize
plaintiffs magazine before any judicial finding is made on whether said magazine
is obscene or not".
The restraining order issued on December 14,1983 having lapsed on January
3,1984, the plaintiff filed an urgent motion for issuance of another restraining
order, which was opposed by defendant on the ground that issuance of a second
restraining order would violate the Resolution of the Supreme Court dated
January 11, 1983, providing for the Interim Rules Relative to the Implementation
of Batas Pambansa Blg. 129, which provides that a temporary restraining order
shall be effective only for twenty days from date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum
in support of his opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing
on January 16, 1984 "for the parties to adduce evidence on the question of
whether the publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated
and/or burned by the defendants, are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be
given three days "to file a reply to defendants' opposition dated January 9, 1984,
serving a copy thereof to the counsel for the defendants, who may file a rejoinder
within the same period from receipt, after which the issue of Preliminary
Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant
filed his Comment on plaintiff s supplemental Memorandum on January 20, 1984,
and plaintiff filed his "Reply-Memorandum" to defendants' Comment on January
25, 1984.
351

On February 3, 1984, the trial court promulgated the Order appealed from
denying the motion for a writ of preliminary injunction, and dismissing the case
for lack of merit.
2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9,
Art. IV), and the protection afforded by the constitution against unreasonable
searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that
freedom of the press is not without restraint as the state has the right to protect
society from pornographic literature that is offensive to public morals, as indeed
we have laws punishing the author, publishers and sellers of obscene publications
(Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
969). Also well settled is the rule that the right against unreasonable searches and
seizures recognizes certain exceptions, as when there is consent to the search or
seizure, (People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest,
(People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in
a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857).
3

The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and, in
effect, holding that the police officers could without any court warrant or order
seize and confiscate petitioner's magazines on the basis simply of their
determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in
effect, holding that the trial court could dismiss the case on its merits without any
hearing thereon when what was submitted to it for resolution was merely the
application of petitioner for the writ of preliminary injunction.
4

The Court states at the outset that it is not the first time that it is being asked to pronounce
what "obscene" means or what makes for an obscene or pornographic literature. Early on,
in People vs. Kottinger,
5
the Court laid down the test, in determining the existence of obscenity,
as follows: "whether the tendency of the matter charged as obscene, is to deprave or corrupt
those whose minds are open to such immoral influences and into whose hands a publication or
other article charged as being obscene may fall."
6
"Another test," so Kottinger further declares,
"is that which shocks the ordinary and common sense of men as an indecency.
"
7
Kottinger hastened to say, however, that "[w]hether a picture is obscene or indecent must
depend upon the circumstances of the case,
8
and that ultimately, the question is to be decided
by the "judgment of the aggregate sense of the community reached by it."
9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a
problem that has grown increasingly complex over the years. Precisely, the question is: When
does a publication have a corrupting tendency, or when can it be said to be offensive to human
sensibilities? And obviously, it is to beg the question to say that a piece of literature has a
corrupting influence because it is obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would
leave the final say to a hypothetical "community standard" whatever that is and that the
question must supposedly be judged from case to case.
352

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under
Article 201 of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibit and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not exactly for art's
sake but rather for commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that the cause of art was of
secondary or minor importance. Gain and profit would appear to have been the
main, if not the exclusive consideration in their exhibition; and it would not be
surprising if the persons who went to see those pictures and paid entrance fees for
the privilege of doing so, were not exactly artists and persons interested in art and
who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and
taste, and lust, and for love for excitement, including the youth who because of
their immaturity are not in a position to resist and shield themselves from the ill
and perverting effects of these pictures.
11

xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have neither been
drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question
were used not exactly for art's sake but rather for commercial purposes,"
12
the pictures are not
entitled to any constitutional protection.
It was People v. Padan y Alova ,
13
however, that introduced to Philippine jurisprudence the
"redeeming" element that should accompany the work, to save it from a valid prosecution. We
quote:
...We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved
the element of art; that connoisseurs of the same, and painters and sculptors
might find inspiration in the showing of pictures in the nude, or the human body
exhibited in sheer nakedness, as models in tableaux vivants. But an actual
exhibition of the sexual act, preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art. One can see nothing in it but
clear and unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land. ...
14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the
exhibition was attended by "artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes,"
15
could the same
legitimately lay claim to "art"? For another, suppose that the exhibition was so presented that
"connoisseurs of [art], and painters and sculptors might find inspiration,"
16
in it, would it cease
to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has
permitted an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and
what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,
17
the Court, following trends in the United
States, adopted the test: "Whether to the average person, applying contemporary standards, the
353

dominant theme of the material taken as a whole appeals to prurient interest."
18
Kalaw-
Katigbak represented a marked departure from Kottingerin the sense that it measured obscenity
in terms of the "dominant theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community standards" are the
final arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a consequence, to temper the
wide discretionKottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to journey
from development to development, which, states one authoritative commentator (with ample
sarcasm), has been as "unstable as it is unintelligible."
19

Memoirs v. Massachusettes,
20
a 1966 decision, which characterized obscenity as one "utterly
without any redeeming social value,"
21
marked yet another development.
The latest word, however, is Miller v. California,
22
which expressly abandoned Massachusettes,
and established "basic guidelines,"
23
to wit: "(a) whether 'the average person, applying
contemporary standards' would find the work, taken as a whole, appeals to the prurient interest
. . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value."
24

(A year later, the American Supreme Court decided Hamling v. United States
25
which
repeated Miller, and Jenkins v. Georgia,
26
yet another reiteration of Miller. Jenkins, curiously,
acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals"
portrayed on screen, although the film highlighted contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been
attributed to the reluctance of the courts to recognize the constitutional dimension of the
problem .
27
Apparently, the courts have assumed that "obscenity" is not included in the
guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions
among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society.
And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or
that it will ever do so until the Court recognizes that obscene speech is speech nonetheless,
although it is subject as in all speech to regulation in the interests of [society as a whole]
but not in the interest of a uniform vision of how human sexuality should be regarded and
portrayed."
28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of
police power, to suppress smut provided it is smut. For obvious reasons, smut is not smut
simply because one insists it is smut. So is it equally evident that individual tastes develop,
adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What
shocked our forebears, say, five decades ago, is not necessarily repulsive to the present
generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are
considered important literature today.
29
Goya's La Maja desnuda was once banned from public
exhibition but now adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we
said earlier, it is the divergent perceptions of men and women that have probably compounded
the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not been,
an easy one to answer, as it is far from being a settled matter. We share Tribe's disappointment
over the discouraging trend in American decisional law on obscenity as well as his pessimism on
whether or not an "acceptable" solution is in sight.
354

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect"
definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced
with the problem, which, after all, is the plaint specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not
its protection. In free expression cases, this Court has consistently been on the side of the
exercise of the right, barring a "clear and present danger" that would warrant State interference
and action.
30
But, so we asserted in Reyes v. Bagatsing,
31
"the burden to show the existence of
grave and imminent danger that would justify adverse action ... lies on the. . . authorit[ies]."
32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of
such clear and present danger."
33
"It is essential for the validity of ... previous restraint or
censorship that the ... authority does not rely solely on his own appraisal of what the public
welfare, peace or safety may require."
34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the
clear and present danger test."
35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only
we may arrive at one-but rather as a serious attempt to put the question in its proper
perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate
the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify
State action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no
choice. However, if it acts notwithstanding that (absence of evidence of a clear and present
danger), it must come to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof to justify
a ban and to warrant confiscation of the literature for which mandatory injunction had been
sought below. First of all, they were not possessed of a lawful court order: (1) finding the said
materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way
of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the
state has the right to protect society from pornographic literature that is offensive to public
morals."
36
Neither do we. But it brings us back to square one: were the "literature" so
confiscated "pornographic"? That we have laws punishing the author, publisher and sellers of
obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and
P.D. No. 969),"
37
is also fine, but the question, again, is: Has the petitioner been found guilty
under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to
seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,
38
We
defined police power as "state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare ."
39
Presidential Decrees Nos. 960 and
969 are, arguably, police power measures, but they are not, by themselves, authorities for high-
handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin
presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to
355

due process of law and the right against unreasonable searches and seizures, specifically.
Significantly, the Decrees themselves lay down procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature,
films, prints, engravings, sculptures, paintings, or other materials involved in the
violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be
governed by the following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to be
destroyed.
(b) Where the criminal case against any violator of this decree results in an
acquittal, the obscene/immoral literature, films, prints, engravings, sculptures,
paintings or other materials and articles involved in the violation referred to in
Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of the
government to be destroyed, after forfeiture proceedings conducted by the Chief of
Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may,
within fifteen (15) days after his receipt of a copy of the decision, appeal the matter
to the Secretary of National Defense for review. The decision of the Secretary of
National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended
by PD No. 969.)
Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the
violations of Section I hereof, the penalty as provided herein shall be imposed in
the maximum period and, in addition, the accessory penalties provided for in the
Revised Penal Code, as amended, shall likewise be imposed .
40

Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise,
they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP,
43
We
counter-minded the orders of the Regional Trial Court authorizing the search of the premises
of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant.
We have greater reason here to reprobate the questioned raid, in the complete absence of a
warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no
different from Burgos, a political case, because, and as we have indicated, speech is speech,
whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules
then prevailing), provide:
356

SEC. 12. Search without warrant of personarrested. A person charged with an
offense may be searched for dangerous weapons or anything which may be used
as proof of the commission of the offense.
44

but as the provision itself suggests, the search must have been an incident to a lawful arrest,
and the arrest must be on account of a crime committed. Here, no party has been charged, nor
are such charges being readied against any party, under Article 201, as amended, of the Revised
Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision which would
free the accused of all criminal responsibility because there had been no warrant,"
45
and that
"violation of penal law [must] be punished."
46
For starters, there is no "accused" here to speak
of, who ought to be "punished". Second, to say that the respondent Mayor could have validly
ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because,
in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor
judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the
petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from a judge, if
in their opinion, an obscenity rap is in order;
2. The authorities must convince the court that the materials sought to be seized
are "obscene", and pose a clear and present danger of an evil substantive enough
to warrant State interference and action;
3. The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound
discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the search
warrant prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised
Penal Code;
6. Any conviction is subject to appeal. The appellate court may assess whether or
not the properties seized are indeed "obscene".
These do not foreclose, however, defenses under the Constitution or applicable statutes, or
remedies against abuse of official power under the Civil Code"
47
or the Revised Penal code .
48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and
SET ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been
destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and
academic.
SO ORDERED.
Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
Fernan (C.J.), Narvasa and Feliciano, JJ., concur in the result.
357

Gutierrez, Jr., J., is on leave.

Footnotes
1 Gonzaga-Reyes, Minerva, J., Javellana, Luis A. and Ramirez, Pedro A., JJ.,
Concurring.
2 Rollo. 30-31
3 Id., 41.
4 Id., 12-13.
5 45 Phil. 352 (1923), per Malcolm, J.
6 Supra, 356
7 Supra, 3511.
8 Supra.
9 Supra, 359.
10 97 Phil. 418 (1955), per Montemayor, J.
11 Supra, 419.
12 Supra.
13 101 Phil. 749 (1957).
14 Supra, 752.
15 Go Pin, supra.
16 Padan y Alova, supra.
17 No 69500, July 21, 1985. 137 SCRA 717, per Fernando, C.J.
18 Supra, 726, citing Roth v. United States, 354 US 476 (1957).
19 TRIBE, AMERICAN CONSTITUTIONAL LAW 656 (1978 ed.).
20 383 US 410 (1966).
21 See TRIBE, Id., 661.
22 413 US 15 (1973).
23 Supra, 24.
358

24 Supra.
25 418 US 87 (1974).
26 418 US 153 (1974).
27 TRIBE, Id. 281d.
28 Id., 661-662; emphasis in the original.
29 See Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved
the movie version in Lady Chatterley's Lover. See also United States v. One Book
called "Ulysses", 5 F. Supp. 182 (1934).
30 Gonzales vs. COMELEC, No. L-27833, April 18,1969,27 SCRA 835; Reyes v.
Bagatsing, No. 65366, November 9,1983,125 SCRA 553.
31 Supra.
32 Supra, 572 per Teehankee, J., Concurring, emphasis in the original.
33 Supra, emphasis in the original.
34 Supra, emphasis in the original.
35 Supra, emphasis in the original.
36 Rollo, Id., 41.
37 Id., The question whether or not Presidential Decrees Nos. 960 and 969 are
unconstitutional is another thing; we will deal with the problem in the proper hour
and in the appropriate case. Judicial restraint is a bar to a consideration of the
problem that does not exist, or if it exists, it exists but in the abstract.
38 G.R. No. 81958, June 30,1988
39 Supra, at 3.
40 Pres. Decree No. 960, Sec. 2 as amended by Pres. Decree No. 969
41 CONST. (1973), the Charter then in force.
42 Supra, art. IV, sec. 3.
43 No. 64266, December, 26,1 984. 133 SCRA 800.
44 RULES OF COURT (1964), Rule 126, sec. 12. As amended, the qqqpioision now
reads as follows: "SEC. 12. Search incident to lawful qqqarrestA person lawfully
arrested may be searched for dangerous weapons or anything which may be used
as proof of the commission of an offense, without a search warrant." [RULES ON
CRIMINAL PROCEDURE (1985 rev.), Rule 126, sec. 12.1 Rollo, Id., 51. Id.
45 Rollo, Id., 51.
359

46 Id.
47 CIVIL CODE, art, 32. The provision states:
ART. 32. Any public officer or employee, or any private individual who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of
the following rights and liberties of another person shall be liable to the latter for
damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical
publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of
law;
(7) The right to a just compensation when private property is taken
for public use
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become member of associations or societies for
purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the
Government for redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and consel, to
be informed of the nature and cause of the accusation against him,
to have a speedy and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of
witness in his behalf
(17) Freedom from bveing compelled to be a witness against one's
self, or from being forced to confess guilt, or from being induced by
360

a promise of immunity or reward to make such confession, except
when the person confessing becomes a State witness;
(18) Freedom from excessive fines,or cruel and unusual
punishment, unless the same is imposed or inflicted in accordance
with a statute which has not been judicially declared
unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages, and for other
relief. Such civil action shall proceed independently of any criminal prosecution (if
the latter be instituted), and may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages
may also be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act
or omission constitutes a violation of the Penal Code or other penal statute.
48 REV. PEN. CODE, arts. 129,130. The provisions state:
"ART. 129. Search warrants maliciously obtained and abuse in the service of those
legally obtained.-In addition to the liability attaching to the offender for
commission of any other offense, the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period and a fine not exceeding
Pl,000 pesos shall be imposed upon any public officer or employee who shall
procure a search warrant without just cause, or, having legally procured the
same, shall exceed his authority or use unnecessary severity in executing the
same.
The acts, committed by a public officer or employee, punishable by
the above article are:
(1) Procuring a search warrant without just cause;
(2) Exceeding one's authority or using unnecessary severity in the execution of a
legally procured search warrant."
"ART. 130. Searching comicile without witnesses.-The penalty of arresto mayor in
its medium and maximum periods shall be imposed upon a public officer or
employee who, in cases where a search is proper, shall search the domicile,
papers or other belongings of any person, in the absence of the latter, any member
of his family, or in their default, without the presence of two witnesses residing in
the same locality.



361

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 80508 January 30, 1990
EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN
BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA JOAQUIN, CRESTITA
LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA
RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO,
ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES,
BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO
MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA
LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO,
ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES, ROSARIO
SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners,
vs.
MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA, respondents.

GUTIERREZ, JR., J.:
This is a petition for prohibition with preliminary injunction to prohibit the military and police
officers represented by public respondents from conducting "Areal Target Zonings" or "Saturation
Drives" in Metro Manila.
The forty one (41) petitioners state that they are all of legal age, bona fide residents of Metro
Manila and taxpayers and leaders in their respective communities. They maintain that they have
a common or general interest in the preservation of the rule of law, protection of their human
rights and the reign of peace and order in their communities. They claim to represent "the
citizens of Metro Manila who have similar interests and are so numerous that it is impracticable
to bring them all before this Court."
The public respondents, represented by the Solicitor General, oppose the petition
contending inter alia that petitioners lack standing to file the instant petition for they are not the
proper parties to institute the action.
According to the petitioners, the following "saturation drives" were conducted in Metro Manila:
1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo,
Manila.
2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and San Sebastian
Street, Tondo, Manila.
3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.
4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to
Happy Land, Magsaysay Village, Tondo, Manila.
362

5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street, Tondo,
Manila.
6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro Manila.
7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.
8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.
9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.
10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City.
11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.
12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.
According to the petitioners, the "areal target zonings" or saturation drives" are in critical areas
pinpointed by the military and police as places where the subversives are hiding. The arrests
range from seven (7) persons during the July 20 saturation drive in Bangkusay, Tondo to one
thousand five hundred (1,500) allegedly apprehended on November 3 during the drive at Lower
Maricaban, Pasay City. The petitioners claim that the saturation drives follow a common pattern
of human rights abuses. In all these drives, it is alleged that the following were committed:
1. Having no specific target house in mind, in the dead of the night or early
morning hours, police and military units without any search warrant or warrant of
arrest cordon an area of more than one residence and sometimes whole barangay
or areas of barangay in Metro Manila. Most of them are in civilian clothes and
without nameplates or identification cards.
2. These raiders rudely rouse residents from their sleep by banging on the walls
and windows of their homes, shouting, kicking their doors open (destroying some
in the process), and then ordering the residents within to come out of their
respective residences.
3. The residents at the point of high-powered guns are herded like cows, the men
are ordered to strip down to their briefs and examined for tattoo marks and other
imagined marks.
4. While the examination of the bodies of the men are being conducted by the
raiders, some of the members of the raiding team force their way into each and
every house within the cordoned off area and then proceed to conduct search of
the said houses without civilian witnesses from the neighborhood.
5. In many instances, many residents have complained that the raiders ransack
their homes, tossing about the residents' belongings without total regard for their
value. In several instances, walls are destroyed, ceilings are damaged in the
raiders' illegal effort to 'fish' for incriminating evidence.
6. Some victims of these illegal operations have complained with increasing
frequency that their money and valuables have disappeared after the said
operations.
363

7. All men and some women who respond to these illegal and unwelcome
intrusions are arrested on the spot and hauled off to waiting vehicles that take
them to detention centers where they are interrogated and 'verified.' These arrests
are all conducted without any warrants of arrest duly issued by a judge, nor
under the conditions that will authorize warrantless arrest. Some hooded men are
used to fingerpoint suspected subversives.
8. In some instances, arrested persons are released after the expiration of the
period wherein they can be legally detained without any charge at all. In other
instances, some arrested persons are released without charge after a few days of
arbitrary detention.
9. The raiders almost always brandish their weapons and point them at the
residents during these illegal operations.
10. Many have also reported incidents of on-the-spotbeatings, maulings and
maltreatment.
11. Those who are detained for further 'verification' by the raiders are subjected to
mental and physical torture to extract confessions and tactical information. (Rollo,
pp. 2-4)
The public respondents stress two points in their Comment which was also adopted as their
Memorandum after the petition was given due course.
First, the respondents have legal authority to conduct saturation drives. And second, they allege
that the accusations of the petitioners about a deliberate disregard for human rights are total
lies.
Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII,
Section 17 of the Constitution which provides:
The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied )
They also cite Section 18 of the same Article which provides:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. ...
There can be no question that under ordinary circumstances, the police action of the nature
described by the petitioners would be illegal and blantantly violative of the express guarantees of
the Bill of Rights. If the military and the police must conduct concerted campaigns to flush out
and catch criminal elements, such drives must be consistent with the constitutional and
statutory rights of all the people affected by such actions.
There is, of course, nothing in the Constitution which denies the authority of the Chief Executive,
invoked by the Solicitor General, to order police actions to stop unabated criminality, rising
lawlessness, and alarming communist activities. The Constitution grants to Government the
power to seek and cripple subversive movements which would bring down constituted authority
and substitute a regime where individual liberties are suppressed as a matter of policy in the
name of security of the State. However, all police actions are governed by the limitations of the
Bill of Rights. The Government cannot adopt the same reprehensible methods of authoritarian
364

systems both of the right and of the left, the enlargement of whose spheres of influence it is
trying hard to suppress. Our democratic institutions may still be fragile but they are not in the
least bit strengthened through violations of the constitutional protections which are their
distinguishing features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated:
One of the most precious rights of the citizen in a free society is the right to be left
alone in the privacy of his own house. That right has ancient roots, dating back
through the mists of history to the mighty English kings in their fortresses of
power. Even then, the lowly subject had his own castle where he was monarch of
all he surveyed. This was his humble cottage from which he could bar his
sovereign lord and all the forces of the Crown.
That right has endured through the ages albeit only in a few libertarian regimes.
Their number, regrettably, continues to dwindle against the onslaughts of
authoritarianism. We are among the fortunate few, able again to enjoy this right
after the ordeal of the past despotism. We must cherish and protect it all the more
now because it is like a prodigal son returning.
That right is guaranteed in the following provisions of Article IV of the 1973
Constitution:
SEC. 3. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized.
xxx xxx xxx
Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v.
Court of Appeals (164 SCRA 655; 660- 661 [1988]):
This constitutional right protects a citizen against wanton and unreasonable
invasion of his privacy and liberty as to his person, papers and effects. We have
explained in the case of People vs. Burgos(144 SCRA 1) citing Villanueva v.
Querubin (48 SCRA 345) why the right is so important:
It is deference to one's personality that lies at the core of this right, but it could be
also looked upon as a recognition of a constitutionally protected area, primarily
one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385
US 293 [1966]) What is sought to be guarded is a man's prerogative to choose who
is allowed entry to his residence. In that haven of refuge, his individuality can
assert itself not only in the choice of who shall be welcome but likewise in the kind
of objects he wants around him. There the state, however powerful, does not as
such have access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is called upon to
refrain from any invasion of his dwelling and to respect the privacies of his life.
(Cf. Schmerber v. California, 384 US 757 [1966], Brennan J. and Boyd v. United
States, 11 6 630 [1886]). In the same vein, Landynski in his authoritative work
365

(Search and Seizure and the Supreme Court [1966]), could fitly characterize
constitutional right as the embodiment of a spiritual concept: the belief that to
value the privacy of home and person and to afford its constitutional protection
against the long reach of government is no less than to value human dignity, and
that his privacy must not be disturbed except in case of overriding social need,
and then only under stringent procedural safeguards. (ibid, p. 74.)
The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed.
183 [1952]) emphasizes clearly that police actions should not be characterized by methods that
offend a sense of justice. The court ruled:
Applying these general considerations to the circumstances of the present case,
we are compelled to conclude that the proceedings by which this conviction was
obtained do more than offend some fastidious squeamishness or private
sentimentalism about combatting crime too energetically. This is conduct that
shocks the conscience. Illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what was there, the forcible extraction of
his stomach's contents this course of proceeding by agents of government to
obtain evidence is bound to offend even hardened sensibilities. They are methods
too close to the rack and the screw to permit of constitutional differentiation.
It is significant that it is not the police action perse which is impermissible and which should be
prohibited. Rather, it is the procedure used or in the words of the court, methods which "offend
even hardened sensibilities." InBreithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]), the
same court validated the use of evidence, in this case blood samples involuntarily taken from the
petitioner, where there was nothing brutal or offensive in the taking. The Court stated:
Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive'
in the taking of a sample of blood when done, as in this case, under the protective
eye of a physician. To be sure, the driver here was unconscious when the blood
was taken, but the absence of conscious consent, without more, does not
necessarily render the taking a violation of a constitutional light; and certainly the
rest was administered here would not be considered offensive by even the most
delicate. Furthermore, due process is not measured by the yardstick of personal
reaction or the sphygmogram of the most sensitive person, but by that whole
community sense of 'decency and fairness that has been woven by common
experience into the fabric of acceptable conduct....
The individual's right to immunity from such invasion of his body was considered as "far
outweighed by the value of its deterrent effect" on the evil sought to be avoided by the police
action.
It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination
of the exact facts surrounding a particular case.
The violations of human rights alleged by the petitioners are serious. If an orderly procedure
ascertains their truth, not only a writ of prohibition but criminal prosecutions would immediately
issue as a matter of course. A persistent pattern of wholesale and gross abuse of civil liberties, as
alleged in the petition, has no place in civilized society.
On the other hand, according to the respondents, the statements made by the petitioners are a
complete lie.
The Solicitor General argues:
366

This a complete lie.
Just the contrary, they had been conducted with due regard to human rights. Not
only that, they were intelligently and carefully planned months ahead of the actual
operation. They were executed in coordination with barangay officials who pleaded
with their constituents to submit themselves voluntarily for character and
personal verification. Local and foreign correspondents, who had joined these
operations, witnessed and recorded the events that transpired relative thereto.
(After Operation Reports: November 5, 1987, Annex 12; November 20, 1987,
Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far
conducted, the alleged victims who numbered thousands had not themselves
complained.
In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo,
President Aquino branded all accusations of deliberate disregard for human rights
as 'total lies'. Here are excerpts from her strongest speech yet in support of the
military:
All accusations of a deliberate disregard for human rights have been shown- up to
be total lies.
...To our soldiers, let me say go out and fight, fight with every assurance that I will
stand by you through thick and thin to share the blame, defend your actions, mourn
the losses and enjoy with you the final victory that I am certain will be ours.
You and I will see this through together.
I've sworn to defend and uphold the Constitution.
We have wasted enough time answering their barkings for it is still a long way to
lasting peace. . . . The dangers and hardships to our men in the field are great
enough as it is without having them distracted by tills worthless carping at their
backs.
Our counter-insurgency policy remains the same: economic development to pull out
the roots-and military operations to slash the growth of the insurgency.
The answer to terror is force now.
Only feats of arms can buy us the time needed to make our economic and social
initiatives bear fruit. . . Now that the extreme Right has been defeated, I expect
greater vigor in the prosecution of the war against the communist insurgency, even
as we continue to watch our backs against attacks from the Right. (Philippine
Star, January 27, 1988, p. 1, Annex 15; emphasis supplied)
Viewed in the light of President Aquino's observation on the matter, it can be said
that petitioners misrepresent as human rights violations the military and police's
zealous vigilance over the people's right to live in peace and safety. (Rollo, pp. 36-
38)
Herein lies the problem of the Court. We can only guess the truth. Everything before us consists
of allegations. According to the petitioners, more than 3,407 persons were arrested in the
saturation drives covered by the petition. No estimates are given for the drives in Block 34,
Dagat-dagatan, Navotas; Apelo Cruz Compound, Pasig; and Sun Valley Drive near the Manila
367

International Airport area. Not one of the several thousand persons treated in the illegal and
inhuman manner described by the petitioners appears as a petitioner or has come before a trial
court to present the kind of evidence admissible in courts of justice. Moreover, there must have
been tens of thousands of nearby residents who were inconvenienced in addition to the several
thousand allegedly arrested. None of those arrested has apparently been charged and none of
those affected has apparently complained.
A particularly intriguing aspect of the Solicitor General's comments is the statement that local
and foreign co-respondents actually joined the saturation drives and witnessed and recorded the
events. In other words, the activities sought to be completely proscribed were in full view of
media. The sight of hooded men allegedly being used to fingerpoint suspected subversives would
have been good television copy. If true, this was probably effected away from the ubiquitous eye
of the TV cameras or, as the Solicitor General contends, the allegation is a "complete lie."
The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of
the Philippines sought to overthrow the present Government introduces another aspect of the
problem and illustrates quite clearly why those directly affected by human rights violations
should be the ones to institute court actions and why evidence of what actually transpired
should first be developed before petitions are filed with this Court.
Where there is large scale mutiny or actual rebellion, the police or military may go in force to the
combat areas, enter affected residences or buildings, round up suspected rebels and otherwise
quell the mutiny or rebellion without having to secure search warrants and without violating the
Bill of Rights. This is exactly what happened in the White Plains Subdivision and the commercial
center of Makati during the first week of December, 1989.
The areal target zonings in this petition were intended to flush out subversives and criminal
elements particularly because of the blatant assassinations of public officers and police officials
by elements supposedly coddled by the communities where the "drives" were conducted.
It is clear from the pleadings of both petitioners and respondents, however, that there was no
rebellion or criminal activity similar to that of the attempted coup d' etats. There appears to have
been no impediment to securing search warrants or warrants of arrest before any houses were
searched or individuals roused from sleep were arrested. There is no strong showing that the
objectives sought to be attained by the "areal zoning" could not be achieved even as the rights of
squatter and low income families are fully protected.
Where a violation of human rights specifically guaranteed by the Constitution is involved, it is
the duty of the court to stop the transgression and state where even the awesome power of the
state may not encroach upon the rights of the individual. It is the duty of the court to take
remedial action even in cases such as the present petition where the petitioners do not complain
that they were victims of the police actions, where no names of any of the thousands of alleged
victims are given, and where the prayer is a general one to stop all police "saturation drives," as
long as the Court is convinced that the event actually happened.
The Court believes it highly probable that some violations were actually committed. This is so
inspite of the alleged pleas of barangay officials for the thousands of residents "to submit
themselves voluntarily for character and personal verification." We cannot imagine police actions
of the magnitude described in the petitions and admitted by the respondents, being undertaken
without some undisciplined soldiers and policemen committing certain abuses. However, the
remedy is not to stop all police actions, including the essential and legitimate ones. We see
nothing wrong in police making their presence visibly felt in troubled areas. Police cannot
respond to riots or violent demonstrations if they do not move in sufficient numbers. A show of
force is sometimes necessary as long as the rights of people are protected and not violated. A
blanket prohibition such as that sought by the petitioners would limit all police actions to one on
368

one confrontations where search warrants and warrants of arrests against specific individuals
are easily procured. Anarchy may reign if the military and the police decide to sit down in their
offices because all concerted drives where a show of force is present are totally prohibited.
The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not
one victim complains and not one violator is properly charged, the problem is not initially for the
Supreme Court. It is basically one for the executive departments and for trial courts. Well meaning
citizens with only second hand knowledge of the events cannot keep on indiscriminately tossing
problems of the executive, the military, and the police to the Supreme Court as if we are the
repository of all remedies for all evils. The rules of constitutional litigation have been evolved for
an orderly procedure in the vindication of rights. They should be followed. If our policy makers
sustain the contention of the military and the police that occasional saturation drives are
essential to maintain the stability of government and to insure peace and order, clear policy
guidelines on the behavior of soldiers and policemen must not only be evolved, they should also
be enforced. A method of pinpointing human rights abuses and identifying violators is necessary.
The problem is appropriate for the Commission on Human Rights. A high level conference should
bring together the heads of the Department of Justice, Department of National Defense and the
operating heads of affected agencies and institutions to devise procedures for the prevention of
abuses.
Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we
can order prosecuted. In the absence of clear facts ascertained through an orderly procedure, no
permanent relief can be given at this time. Further investigation of the petitioners' charges and a
hard look by administration officials at the policy implications of the prayed for blanket
prohibition are also warranted.
In the meantime and in the face of a prima facie showing that some abuses were probably
committed and could be committed during future police actions, we have to temporarily restrain
the alleged banging on walls, the kicking in of doors, the herding of half-naked men to assembly
areas for examination of tattoo marks, the violation of residences even if these are humble
shanties of squatters, and the other alleged acts which are shocking to the conscience.
WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila,
Malabon, and Pasay City where the petitioners may present evidence supporting their allegations
and where specific erring parties may be pinpointed and prosecuted.
Copies of this decision are likewise forwarded to the Commission on Human Rights, the
Secretary of Justice, the Secretary of National Defense, and the Commanding General PC-INP for
the drawing up and enforcement of clear guidelines to govern police actions intended to abate
riots and civil disturbances, flush out criminal elements, and subdue terrorist activities.
In the meantime, the acts violative of human rights alleged by the petitioners as committed during
the police actions are ENJOINED until such time as permanent rules to govern such actions are
promulgated.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes, Medialdea and
Regalado, JJ., concur.
Grio-Aquino, J., I join JJ. Cruz, Padilla and Sarmiento's dissents.

369


Separate Opinions

CRUZ, J., dissenting:
Mr. Justice Gutierrez and I are kindred spirits and usually find ourselves together on the side of
liberty. It saddens me that in the case at bar he is on the side of authority.
This is not to say that liberty and authority are irreconcilable enemies. The two must in fact co-
exist, for only in a well-ordered society can rights be properly enjoyed. Implicit in that theory,
however, is the other imperative: that the highest function of authority is to insure liberty.
While acknowledging that the military is conducting the saturation drives, the majority
practically blinks them away on mere technicalities. First, there are no proper parties. Second,
there is no proof. Therefore, the petition is dismissed.
The approach is to me too much simplification. We do not choose to see the woods for the trees.
The brutal fact is staring us in the face but we look the other way in search of excuses.
The majority says it cannot act against the drives because no one directly affected has
complained. Such silence, if I understand the ponencia correctly, has in effect purged the drives
of all oppressiveness and washed them clean.
(The reason for the silence is fear. These raids are conducted not in the enclaves of the rich but
in the deprived communities, where the residents have no power or influence. The parties
directly aggrieved are afraid. They are the little people. They cannot protest lest they provoke
retaliation for their temerity. Their only hope is in this Court, and we should not deny them that
hope.)
The ruling that the petitioners are not proper parties is a specious pretext for inaction. We have
held that technical objections may be brushed aside where there are constitutional questions
that must be met. There are many decisions applying this doctrine. (Rodriguez v. Gella, 92 Phil.
603; Tolentino v. Commission on Elections, 41 SCRA 702; Philconsa v. Jimenez, 65 SCRA 479;
Edu v. Ericta, 35 SCRA 481; Gonzales v. Commission on Elections, 27 SCRA 835; Lagunsad v.
Court of Appeals; 154 SCRA 199; Demetria v. Alba, 148 SCRA 208). Lozada was in fact an
aberration.
I believe that where liberty is involved, every person is a proper party even if he may not be
directly injured. Each of us has a duty to protect liberty and that alone makes him a proper
party. It is not only the owner of the burning house who has the right to call the firemen. Every
one has the right and responsibility to prevent the fire from spreading even if he lives in the other
block.
The majority seems to be willing to just accept the Solicitor General's assertion that the claimed
abuses are "complete lies" and leave it at that. But a blanket denial is not enough. The evidence
is there on media, in the papers and on radio and television, That kind of evidence cannot be
cavalierly dismissed as "complete lies."
The saturation drive is not unfamiliar to us. It is like the "zona" of the Japanese Occupation. An
area was surrounded by soldiers and all residents were flushed out of their houses and lined up,
370

to be looked over by a person with a bag over his head. This man pointed to suspected guerrillas,
who were immediately arrested and eventually if not instantly executed.
To be sure, there are some variations now. The most important difference is that it is no longer
1943 and the belligerent occupation is over. There is no more war. It is now 1990, when we are
supposed to be under a free Republic and safeguarded by the Bill of Rights.
Article III, Section 2, clearly provides:
Sec. 2 The right of the people to be secure in their persons, houses, papers, and
effects againstunreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized. (Emphasis supplied.)
The provision is intended to protect the individual from official (and officious) intrusions, no
matter how humble his abode and however lowly his station in life. Against the mighty forces of
the government, the person's house is his castle, his inviolate refuge and exclusive domain where
he is the monarch of all he surveys.
Yet in the dead of night, armed soldiers may knock on one's door and command him at gunpoint
to come out so he and his neighbors, who have also been rounded up, can all be placed on public
examination, as in a slave market. This is followed by the arrest and detention of those
suspected of villainy, usually on the basis only of the tattoos on their bodies or the informer's
accusing finger.
Where is the search warrant or the warrant of arrest required by the Bill of Rights? Where is the
probable cause that must be determined personally by the judge, and by no other, to justify the
warrant? Where is the examination under oath or affirmation of the complainant and the
witnesses he may produce to establish the probable cause? Where is the particular description
that must be stated in the warrant, of the places to be searched and the persons or things to be
seized? And where, assuming all these may be dispensed with, is the admissible exception to the
rule?
Saturation drives are not among the accepted instances when a search or an arrest may be made
without warrant. They come under the concept of the fishing expeditions stigmatized by law and
doctrine. At any rate, if the majority is really introducing the "zona" as another exception to the
rule, it must not equivocate. It must state that intention in forthright language and not in vague
generalizations that concede the wrong but deny the right.
To justify the "zona" on the basis of the recent coup attempt is, in my view, to becloud the issue.
The "zonas" complained of happened before the failed coup and had nothing whatsoever to do
with that disturbance. There was no "large scale mutiny or actual rebellion' when the saturation
drives were conducted and there were no "combat areas" either in the places where the violations
were committed. The failed coup cannot validate the invalid "zonas' retroactively.
The ponencia says that "we cannot take judicial notice of the facts and figures given by the
petitioners regarding these saturation drives conducted by the military and police authorities."
Maybe so. But we can and should take judicial notice of the saturation drives themselves which
are not and cannot be denied by the government.
I urge my brethren to accept the fact that those drives are per se unconstitutional. I urge them to
accept that even without proof of the hooded figure and the personal indignities and the loss and
371

destruction of properties and the other excesses allegedly committed, the mere waging of the
saturation drives alone is enough to make this Court react with outraged concern.
Confronted with this clear case of oppression, we should not simply throw up our hands and
proclaim our helplessness. I submit that this Court should instead declare categorically and
emphatically that these saturation drives are violative of human rights and individual liberty and
so should be stopped immediately. While they may be allowed in the actual theater of military
operations against the insurgents, the Court should also make it clear that Metro Manila
is not such a battleground.
The danger to our free institutions lies not only in those who openly defy the authority of the
government and violate its laws. The greater menace is in those who, in the name of democracy,
destroy the very things it stands for as in this case and so undermine democracy itself.
Where liberty is debased into a cruel illusion, all of us are degraded and diminished. Liberty is
indivisible; it belongs to every one. We should realize that when the bell tolls the death of liberty
for one of us, "it tolls for thee" and for all of us.
PADILLA, J., separate opinion:
This case is another classic instance of state power colliding with individual rights. That the
State, acting through the government and its forces, has the authority to suppress lawless
violence in all its forms cannot be denied. The exercise of that authority is justified when viewed
from the standpoint of the general welfare, because the State has the elementary and
indispensable duty to insure a peaceful life and existence for its citizens. A government that loses
its capability to insure peace and order for its citizens loses the very right to remain in power.
But, in the exercise of such authority, i.e., in the choice of the means and methods to suppress
lawless violence, the right of the individual citizen to the dignity of his person and the sanctity of
his home cannot and should not be violated, unless there is, in a particular case, a clear and
present danger of a substantive evil that the State has a compelling duty to suppress or abate.
Petitioners' vivid description of the "areal target zoning" or "saturation drives" allegedly conducted
by police and military units in Metro Manila, obviously intended to ferret out criminals or
suspected criminals in certain cordoned areas, while vigorously denied by respondents, deserves
an effective and immediate response from this Court.
I submit that since this Court is not a trier of facts and this case involves certainty of facts
alleged by petitioners and denied by respondents this case should be referred to a proper trial
court where the petitioners can present evidence to support and prove the allegations they make
of such brutal and inhuman conduct on the part of military and police units.
More than the military and police checkpoints sustained by this Court as a general proposition
during abnormal times,** and which involve the right of military and police forces to check on
vehicles and pedestrians passing through certain fixed points for the purpose of apprehending
criminals and/or confiscating prohibited articles like unlicensed firearms, the "areal target
zoning" and "saturation drives", as described in petitioners' allegations, are actual raids on
private homes in selected areas, and are thus positive assaults against the individual person and
his dignity. The individual is, as described, yanked out of his home, without any arrest warrant,
to face investigation as to his connections with lawless elements. In short, the sanctity of the
home is pulverized by military and police action. Thus, while the checkpoint is a defensive
device, on the part of government, the "areal target zoning" or "saturation drive" is a direct
assault against, an intrusion into individual rights and liberties.
372

Respondents, fortunately, have branded petitioners' allegations of such brutality, as total lies. It
is indeed difficult to even contemplate that such methods reminiscent of a "police state" can exist
in a society built on a republican and constitutional system. Respondents Must be given a
chance to face their accusers and prove that they are indeed fabricating falsehoods. But the
stakes I submit, are too high for this Court, as the guardian of individual liberties, to avoid a
judicial confrontation with the issue.
I vote, therefore, to refer this case (dispensing with normal venue requirements) to the Executive
Judge, RTC of Manila, for him
1. to receive the evidences of all the parties, in support and in refutation of the petitioners'
allegations;
2. to decide the case expeditiously on the bases of the evidence, subject to review by this Court;
3. to report to this Court on action taken.
SARMIENTO, J., dissenting:
There is only one question here: Whether or not the police actions (saturation drives) complained
of constitute a valid exercise of police power.
The fact that on twelve occasions between March and November, 1987 the military conducted the
saturation drives in question is a fact open to no question. The Solicitor General admits that
they, the saturation drives, had been done, except that they had been done "with due regard to
human rights." "Not only that," so he states:
... they were intelligently and carefully planned months ahead of the actual
operation. They were executed in coordination with barangay officials who pleaded
with their constituents to submit themselves voluntarily for character and
personal verification. Local and foreign correspondents, who had joined these
operations, witnessed, and reported the events that transpired relative thereto.
(After Operation Reports: November 5, 1987, Annex 12; November 20, 1987,
Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far
conducted, the alleged victims who numbered thousands had not themselves
complained.
The question, then, is purely one of law: Are the saturation drives in question lawful and
legitimate? It is also a question that is nothing novel: No, because the arrests were not
accompanied by a judicial warrant.
1

Therefore, the fact that they had been carefully planned, executed in coordination with Tondo's
barangay officials, and undertaken with due courtesy and politeness (which I doubt), will not
validate them. The lack of a warrant makes them, per se illegal.
According to the majority, "the remedy is not to stop all police actions, including the essential and
legitimate ones . . . [w]e see nothing wrong in police making their presence visibly felt in troubled
areas . . . "
2
But the petitioners have not come to court to "stop all police actions" but rather, the
saturation drives, which are, undoubtedly, beyond police power.
That "[a] show of force is sometimes necessary as long as the rights of people are protected and
not violated
3
is a contradiction in terms. A "show of force" (by way of saturation drives) is a
violation of human rights because it is not covered by a judicial warrant.
373

In all candor, I can not swallow what I find is a complete exaggeration of the issues:
...A show of force is sometimes necessary as long as the rights of people are
protected and not violated. A blanket prohibition such as that sought by the
petitioners would limit all police actions to one on one confrontations where
search warrants and warrants of arrests against specific individuals are easily
procured. Anarchy may reign if the military and the police decide to sit down in
their offices because all concerted drives where a show of force is present are
totally prohibited.
4

As a general rule, a peace officer can not act unless he is possessed of the proper arrest or
search warrant. The exception is when a criminal offense is unfolding before him, in which case,
action is justified and necessary. The majority would have the exception to be simply, the general
rule.
The fact of the matter is that we are not here confronted by police officers on the beat or prowl
cars on patrol. What we have and I suppose that everybody is agreed on it- are lightning raids of
homes, arbitrary confiscation of effects, and summary arrests of persons, the very acts
proscribed by the Constitution. If this is a "show of force", it certainly has no place in a
constitutional democracy.
I find allusions to the last aborted coup d'etat inapt. In that case, our men in uniform had all the
right to act amidst crimes being committed in flagrante. The instant case is quite different. There
are no offenses being committed, but rather, police officers fishing for evidence of offenses
that may have been committed, As I said, in that event, a court warrant is indispensable.
That "the problem is not initially for the Supreme Court
5
is to me, an abdication of judicial duty.
As I indicated, the controversy is purely one of law the facts being undisputed. Law, needless to
say, is the problem of the Supreme Court, not the Executive.
Worse, it is passing the buck. The petitioners, precisely, have a grievance to raise, arising from
abuses they pinpoint to the lower offices of the Executive (which presumably has its imprimatur).
To make it an executive problem, so I hold, is to make the Executive judge and jury of its own
acts, and hardly, a neutral arbiter.
I am also taken aback by references to "[w]ell meaning citizens with only second hand knowledge
of the events ... keep[ing] on indiscriminately tossing problems -of the Executive, the military,
and the police to the Supreme Court as if we are the repository of all remedies for all
evils."
6
First, the facts are not "second-hand", they are undisputed: Ther had been saturation
drives. Second, the petitioners have trooped to the highest court with a legitimate grievance
against the Executive (and military).
The fact that the majority would "remand" the case to the lower courts and the various echelons
of the Executive for investigation is to admit that walls have indeed been banged, doors kicked
in, and half-naked men herded. I do not see therefore why we can not issue a writ of prohibition
as prayed for, in the midst of these facts.




374


Separate Opinions
CRUZ, J., dissenting:
Mr. Justice Gutierrez and I are kindred spirits and usually find ourselves together on the side of
liberty. It saddens me that in the case at bar he is on the side of authority.
This is not to say that liberty and authority are irreconcilable enemies. The two must in fact co-
exist, for only in a well-ordered society can rights be properly enjoyed. Implicit in that theory,
however, is the other imperative: that the highest function of authority is to insure liberty.
While acknowledging that the military is conducting the saturation drives, the majority
practically blinks them away on mere technicalities. First, there are no proper parties. Second,
there is no proof Therefore, the petition is dismissed.
The approach is to me too much simplification. We do not choose to see the woods for the trees.
The brutal fact is staring us in the face but we look the other way in search of excuses.
The majority says it cannot act against the drives because no one directly affected has
complained. Such silence, if I understand the ponencia correctly, has in effect purged the drives
of all oppressiveness and washed them clean.
(The reason for the silence is fear. These raids are conducted not in the enclaves of the rich but
in the deprived communities, where the residents have no power or influence. The parties
directly aggrieved are afraid. They are the little people. They cannot protest lest they provoke
retaliation for their temerity. Their only hope is in this Court, and we should not deny them that
hope.)
The ruling that the petitioners are not proper parties is a specious pretext for inaction. We have
held that technical objections may be brushed aside where there are constitutional questions
that must be met. There are many decisions applying this doctrine. (Rodriguez v. Gella, 92 Phil.
603; Tolentino v. Commission on Elections, 41 SCRA 702; Philconsa v. Jimenez, 65 SCRA 479;
Edu v. Ericta, 35 SCRA 481; Gonzales v. Commission on Elections, 27 SCRA 835; Lagunsad v.
Court of Appeals; 154 SCRA 199; Demetria v. Alba, 148 SCRA 208). Lozada was in fact an
aberration.
I believe that where liberty is involved, every person is a proper party even if he may not be
directly injured. Each of us has a duty to protect liberty and that alone makes him a proper
party. It is not only the owner of the burning house who has the right to call the firemen. Every
one has the right and responsibility to prevent the fire from spreading even if he lives in the other
block.
The majority seems to be willing to just accept the Solicitor General's assertion that the claimed
abuses are "complete lies" and leave it at that. But a blanket denial is not enough. The evidence
is there on media, in the papers and on radio and television, That kind of evidence cannot be
cavalierly dismissed as "complete lies."
The saturation drive is not unfamiliar to us. It is like the "zona" of the Japanese Occupation. An
area was surrounded by soldiers and all residents were flushed out of their houses and lined up,
to be looked over by a person with a bag over his head. This man pointed to suspected guerrillas,
who were immediately arrested and eventually if not instantly executed.
375

To be sure, there are some variations now. The most important difference is that it is no longer
1943 and the belligerent occupation is over. There is no more war. It is now 1990, when we are
supposed to be under a free Republic and safeguarded by the Bill of Rights.
Article III, Section 2, clearly provides:
Sec. 2 The right of the people to be secure in their persons, houses, papers, and
effects againstunreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized. (Emphasis supplied.)
The provision is intended to protect the individual from official (and officious) intrusions, no
matter how humble his abode and however lowly his station in life. Against the mighty forces of
the government, the person's house is his castle, his inviolate refuge and exclusive domain where
he is the monarch of all he surveys.
Yet in the dead of night, armed soldiers may knock on one's door and command him at gunpoint
to come out so he and his neighbors, who have also been rounded up, can all be placed on public
examination, as in a slave market. This is followed by the arrest and detention of those
suspected of villainy, usually on the basis only of the tattoos on their bodies or the informer's
accusing finger.
Where is the search warrant or the warrant of arrest required by the Bill of Rights? Where is the
probable cause that must be determined personally by the judge, and by no other, to justify the
warrant? Where is the examination under oath or affirmation of the complainant and the
witnesses he may produce to establish the probable cause? Where is the particular description
that must be stated in the warrant, of the places to be searched and the persons or things to be
seized? And where, assuming all these may be dispensed with, is the admissible exception to the
rule?
Saturation drives are not among the accepted instances when a search or an arrest may be made
without warrant. They come under the concept of the fishing expeditions stigmatized by law and
doctrine. At any rate, if the majority is really introducing the "zona' as another exception to the
rule, it must not equivocate. It must state that intention in forthright language and not in vague
generalizations that concede the wrong but deny the right.
To justify the "zona" on the basis of the recent coup attempt is, in my view, to becloud the issue.
The "zonas' complained of happened before the failed coup and had nothing whatsoever to do
with that disturbance. There was no "large scale mutiny or actual rebellion' when the saturation
drives were conducted and there were no "combat areas" either in the places where the violations
were committed. The failed coup cannot validate the invalid "zonas' retroactively.
The ponencia says that "we cannot take judicial notice of the facts and figures given by the
petitioners regarding these saturation drives conducted by the military and police authorities."
Maybe so. But we can and should take judicial notice of the saturation drives themselves which
are not and cannot be denied by the government.
I urge my brethren to accept the fact that those drives are per se unconstitutional. I urge them to
accept that even without proof of the hooded figure and the personal indignities and the loss and
destruction of properties and the other excesses allegedly committed, the mere waging of the
saturation drives alone is enough to make this Court react with outraged concern.
376

Confronted with this clear case of oppression, we should not simply throw up our hands and
proclaim our helplessness. I submit that this Court should instead declare categorically and
emphatically that these saturation drives are violative of human rights and individual liberty and
so should be stopped immediately. While they may be allowed in the actual theater of military
operations against the insurgents, the Court should also make it clear that Metro Manila
is not such a battleground.
The danger to our free institutions lies not only in those who openly defy the authority of the
government and violate its laws. The greater menace is in those who, in the name of democracy,
destroy the very things it stands for as in this case and so undermine democracy itself.
Where liberty is debased into a cruel illusion, all of us are degraded and diminished. Liberty is
indivisible; it belongs to every one. We should realize that when the bell tolls the death of liberty
for one of us, "it tolls for thee" and for all of us.
PADILLA, J., separate opinion:
This case is another classic instance of state power colliding with individual rights. That the
State, acting through the government and its forces, has the authority to suppress lawless
violence in all its forms cannot be denied. The exercise of that authority is justified when viewed
from the standpoint of the general welfare, because the State has the elementary and
indispensable duty to insure a peaceful life and existence for its citizens. A government that loses
its capability to insure peace and order for its citizens loses the very right to remain in power.
But, in the exercise of such authority, i.e., in the choice of the means and methods to suppress
lawless violence, the right of the individual citizen to the dignity of his person and the sanctity of
his home cannot and should not be violated, unless there is, in a particular case, a clear and
present danger of a substantive evil that the State has a compelling duty to suppress or abate.
Petitioners' vivid description of the "areal target zoning" or "saturation drives" allegedly conducted
by police and military units in Metro Manila, obviously intended to ferret out criminals or
suspected criminals in certain cordoned areas, while vigorously denied by respondents, deserves
an effective and immediate response from this Court.
I submit that since this Court is not a trier of facts and this case involves certainty of facts
alleged by petitioners and denied by respondents-this case should be referred to a proper trial
court where the petitioners can presentevidence to support and prove the allegations they make
of such brutal and inhuman conduct on the part of military and police units.
More than the military and police checkpoints sustained by this Court as a general proposition
during abnormal times,** and which involve the right of military and police forces to check on
vehicles and pedestrians passing through certain fixed points for the purpose of apprehending
criminals and/or confiscating prohibited articles like unlicensed firearms, the "areal target
zoning" and "saturation drives", as described in petitioners' allegations, are actual raids on
private homes in selected areas, and are thus positive assaults against the individual person and
his dignity. The individual is, as described, yanked out of his home, without any arrest warrant,
to face investigation as to his connections with lawless elements. In short, the sanctity of the
home is pulverized by military and police action. Thus, while the checkpoint is a defensive
device, on the part of government, the "areal target zoning" or "saturation drive" is a direct
assault against, an intrusion into individual rights and liberties.
Respondents, fortunately, have branded petitioners' allegations of such brutality, as total lies. It
is indeed difficult to even contemplate that such methods reminiscent of a "police state" can exist
in a society built on a republican and constitutional system. Respondents Must be given a
chance to face their accusers and prove that they are indeed fabricating falsehoods. But the
377

stakes I submit, are too high for this Court, as the guardian of individual liberties, to avoid a
judicial confrontation with the issue.
I vote, therefore, to refer this case (dispensing with normal venue requirements) to the Executive
Judge, RTC of Manila, for him-
1. to receive the evidences of all the parties, in support and in refutation of the petitioners'
allegations;
2. to decide the case expeditiously on the bases of the evidence, subject to review by this Court;
3. to report to this Court on action taken.
SARMIENTO, J., dissenting:
There is only one question here: Whether or not the police actions (saturation drives) complained
of constitute a valid exercise of police power.
The fact that on twelve occasions between March and November, 1987 the military conducted the
saturation drives in question is a fact open to no question. The Solicitor General admits that
they, the saturation drives, had been done, except that they had been done "with due regard to
human rights." "Not only that," so he states:
... they were intelligently and carefully planned months ahead of the actual
operation. They were executed in coordination with barangay officials who pleaded
with their constituents to submit themselves voluntarily for character and
personal verification. Local and foreign correspondents, who had joined these
operations, witnessed, and reported the events that transpired relative thereto.
(After Operation Reports: November 5, 1987, Annex 12; November 20, 1987,
Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far
conducted, the alleged victims who numbered thousands had not themselves
complained.
The question, then, is purely one of law: Are the saturation drives in question lawful and
legitimate? It is also a question that is nothing novel: No, because the arrests were not
accompanied by a judicial warrant.
1

Therefore, the fact that they had been carefully planned, executed in coordination with Tondo's
barangay officials, and undertaken with due courtesy and politeness (which I doubt), will not
validate them. The lack of a warrant makes them, per se illegal.
According to the majority, "the remedy is not to stop all police actions, including the essential and
legitimate ones . . . [w]e see nothing wrong in police making their presence visibly felt in troubled
areas . . . "
2
But the petitioners have not come to court to "stop all police actions" but rather, the
saturation drives, which are, undoubtedly, beyond police power.
That "[a] show of force is sometimes necessary as long as the rights of people are protected and
not violated
3
is a contradiction in terms. A "show of force" (by way of saturation drives) is a
violation of human rights because it is not covered by a judicial warrant.
In all candor, I can not swallow what I find is a complete exaggeration of the issues:
...A show of force is sometimes necessary as long as the rights of people are
protected and not violated. A blanket prohibition such as that sought by the
378

petitioners would limit all police actions to one on one confrontations where
search warrants and warrants of arrests against specific individuals are easily
procured. Anarchy may reign if the military and the police decide to sit down in
their offices because all concerted drives where a show of force is present are
totally prohibited.
4

As a general rule, a peace officer can not act unless he is possessed of the proper arrest or
search warrant. The exception is when a criminal offense is unfolding before him, in which case,
action is justified and necessary. The majority would have the exception to be simply, the general
rule.
The fact of the matter is that we are not here confronted by police officers on the beat or prowl
cars on patrol. What we have and I suppose that everybody is agreed on it- are lightning raids of
homes, arbitrary confiscation of effects, and summary arrests of persons, the very acts
proscribed by the Constitution. If this is a "show of force", it certainly has no place in a
constitutional democracy.
I find allusions to the last aborted coup d'etat inapt. In that case, our men in uniform had all the
right to act amidst crimes being committed in flagrante. The instant case is quite different. There
are no offenses being committed, but rather, police officers fishing for evidence of offenses
that may have been committed, As I said, in that event, a court warrant is indispensable.
That "the problem is not initially for the Supreme Court
5
is to me, an abdication of judicial duty.
As I indicated, the controversy is purely one of law the facts being undisputed. Law, needless to
say, is the problem of the Supreme Court, not the Executive.
Worse, it is passing the buck. The petitioners, precisely, have a grievance to raise, arising from
abuses they pinpoint to the lower offices of the Executive (which presumably has its imprimatur).
To make it an executive problem, so I hold, is to make the Executive judge and jury of its own
acts, and hardly, a neutral arbiter.
I am also taken aback by references to "[w]ell meaning citizens with only second hand knowledge
of the events ... keep[ing] on indiscriminately tossing problems -of the Executive, the military,
and the police to the Supreme Court as if we are the repository of all remedies for all
evils."
6
First, the facts are not "second-hand", they are undisputed: Ther had been saturation
drives. Second, the petitioners have trooped to the highest court with a legitimate grievance
against the Executive (and military).
The fact that the majority would "remand" the case to the lower courts and the various echelons
of the Executive for investigation is to admit that walls have indeed been banged, doors kicked
in, and half-naked men herded. I do not see therefore why we can not issue a writ of prohibition
as prayed for, in the midst of these facts.
Footnotes
Padilla, J.
** Valmonte vs. Gen. de Villa, et al., G.R. No. 83988, 29 September 1989.
Sarmiento, J.
1 CONST., art III, sec. 21; People v. Burgos, No. 68955, September 4, 1986, 144
SCRA 1.
2 Decision, 15; emphasis supplied.
3 Supra; emphasis supplied.
4 Supra.
5 Supra; emphasis supplied.
6 Supra.
379

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 75909 February 5, 1990
RAMON FRANCISCO and CRISTINA MANALO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, HON. BERNARDO P. PARDO, Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Branch XLIII, and SPS. BENJAMIN
BANGAYAN and EMILIANA BANGAYAN, respondents.
Manuel B. Dulay for petitioners.
Natalio M. Panganiban for private respondents.

FERNAN, C.J.:
Petitioners spouses Ramon Francisco and Cristina Manalo seek a review of the decision dated
August 29, 1986 of the then Intermediate Appellate Court (IAC), now Court of Appeals, in CA-
G.R. SP No. 06866, entitled "Ramon Francisco, et al., Petitioners vs. Hon. Bernardo Pardo, etc.,
et al., Respondents", denying due course to their petition, thereby affirming their ejectment from
the subject premises as decreed by both the Metropolitan Trial Court (MTC) and the Regional
Trial Court (RTC) of Manila.
The facts as found by the RTC and adopted by the IAC are as follows:
The premises in question located at 1512 Antipolo St., Sta. Cruz, Manila, consist
of a lot and a two-storey building owned by Antonio Chua. Defendant (herein
petitioner) Ramon Francisco leased the ground floor and a room in the second
floor of the said building since 1961, (and) used (the same) as an auto spare parts
store and residence. . . . (T)he latest rental as of June, 1982 was Pl,500.00 duly
paid to Antonio Chua.
In 1978, the plaintiffs (herein private respondents) acquired the ownership of the
premises by purchase from the former owner Antonio Chua but it was agreed
between the plaintiffs and the former owner that the tenant defendant Ramon
Francisco would continue to pay to the former owner the monthly rental of
P1,000.00 until the end of 1978 and that thereafter the rentals shall accrue to the
plaintiffs. Nonetheless, starting January, 1979, plaintiffs received the monthly
rentals not from defendants but from the former owner Antonio Chua who agreed
to assume responsibility in paying the rental on behalf of Ramon Francisco.
Because Antonio Chua failed to remit the rental to the plaintiffs, since September,
1979 and effective January, 1981 at the increased rate of Pl,500.00 a month, on
February 3, 1982, plaintiffs wrote former owner Antonio Chua to pay the unpaid
rentals then amounting to P35,000.00. Parenthetically on July 3, 1982, plaintiffs
counsel sent a letter of demand to the defendant Ramon Francisco by registered
mail but the latter was returned unclaimed.
380

Another letter dated January 24, 1983 was addressed to defendant Cristina
Manalo but was also returned unclaimed.
In fact, however, defendants were paid up to the month of June, 1982 and
defendants stopped paying rentals when they received a copy of the letter of
plaintiffs to the former owner Antonio Chua.
1

On March 7, 1983, private respondents Benjamin and Emiliana Bangayan filed before the MTC
of Manila a complaint for ejectment against the petitioners on the following grounds: a) non-
payment of the agreed monthly rental of P2,000.00; and b) subleasing of the premises in
violation of the condition of the lease.
Petitioners denied the existence of the grounds for ejectment. They asserted that Antonio Chua,
the previous owner of the leased property assumed the responsibility of paying the rentals. They
further stated that there was no existing sublease but only a change of name of their auto parts
business from Impala Auto Supply to Starlet Supply Center. They likewise denied knowledge of
the transfer of ownership of the property involved from Antonio Chua, the previous owner, to the
private respondents.
The MTC, after due hearing, rendered judgment declaring petitioners to have defaulted in the
payment of the rent. The dispositive portion of the decision reads:
Accordingly, judgment is hereby rendered ordering the defendants Ramon
Francisco and Cristina Manalo and all persons claiming rights under them to
immediately vacate the premises . . . and to restore possession thereof to
plaintiffs; and for the said defendants to pay jointly and severally the herein
plaintiffs the amount of Pl,500.00 as monthly rentals of the premises from August
1982 and every month thereafter (less any amount they have paid to the plaintiffs)
until they have actually vacated the premises and the costs of the suit.
2

On appeal to the RTC, the lower court's decision was affirmed with modification. The RTC
pronounced:
WHEREFORE, the court affirms the decision subject of the appeal with
modification so as to make the decision definite and certain because in the
appealed decision, the lower court authorized deduction of any amount they have
paid the plaintiffs which being undetermined, makes the decision uncertain and
void (Cf. del Rosario vs. Villegas, 49 Phil. 634). Defendants and all persons
claiming rights under them are ordered to immediately vacate the premises . . .
and to restore possession thereof to plaintiffs, to pay plaintiffs the sum of
Pl,500.00 a month as rental for the premises from July, 1982 and every month
thereafter until they actually vacate the premises, and costs.
SO ORDERED.
3

As earlier intimated, the Court of Appeals also denied due course to petitioners' petition for
review. Hence, this recourse, petitioners contending that the appellate court committed the
following errors in its decision:

I
381

PUBLIC RESPONDENT ERRED IN NOT HOLDING THAT THERE WAS NO
CONTRACT OF LEASE BETWEEN THE PARTIES;
II
RESPONDENT COURT ERRED IN HOLDING THAT PRIVATE RESPONDENTS
MERELY STEPPED INTO THE SHOES OF THE PREVIOUS OWNER;
III
RESPONDENT COURT ERRED IN HOLDING THAT THE NON-PAYMENT OF
RENTALS FROM JULY, 1982 UP TO JANUARY, 1983 WAS SUFFICIENT GROUND
TO EJECT PETITIONERS;
IV
RESPONDENT COURT ERRED IN HOLDING THAT THE DEMAND ALLEGEDLY
GIVEN BY THE PRIVATE RESPONDENTS PRODUCED THE EFFECT OF
NOTIFICATION
V
RESPONDENT COURT ERRED IN HOLDING THAT THE LOWER COURT DID NOT
EXERCISE ABUSE OF DISCRETION IN NOT FIXING A LONGER PERIOD OF
LEASE.
4

Petitioners allege that when private respondents finally disclosed to them in July, 1982 that they,
private respondents, were the new owners and lessors of the leased premises, a confrontation
occurred because of the disagreement regarding the rate of rental. Since no agreement as to the
rate of rental was arrived at, no contract of lease was created. This being the case, petitioners
aver that they could not have violated the lease contract as there was no contract to speak of in
the first place.
Such contention is clearly fallacious. The property subject of the controversy was sold by the
former owner Antonio Chua to private respondents while the lease was subsisting. Under Article
1676 of the New Civil Code,
The purchaser of a piece of land which is under a lease that is not recorded in the
Registry of Property may terminate the lease, save when there is a stipulation to
the contrary in the contract of sale, or when the purchaser knows of the existence
of the lease.
In the case at bar, private respondents chose to allow the lease to continue. Despite the change
of ownership then, the contract of lease subsisted. As aptly held by the appellate court:
As buyers of the premises, private respondents merely stepped into the shoes of
the previous owner. The change of ownership did not affect the contract of lease
between the petitioners and previous owner. Petitioners still had the same
obligations, including the payment of rentals, under the contract without the
necessity of entering into another agreement with the new owners.
5

Having shown the existence of the lease, all the other issues can be easily resolved.
382

No error was committed by the appellate court in ruling that the failure of petitioners to pay the
rentals from July, 1982 to January, 1983 was sufficient ground to eject them. It is a basic tenet
that if the lessor raises the rent at the expiration of the lease, the tenant has to leave if he does
not pay the new rental.
6

As held in the case of Vda. de Roxas vs. Court of Appeals, 63 SCRA 302, it is the owner's
prerogative to fix the rental for which he wishes to lease his property and the occupant has the
option of accepting the rent as fixed or negotiating with the owner and in the event of failure to
come to an agreement, to leave the property so as not to be liable for the rental fixed and
demanded by the owner.
The rent in this case was being paid monthly. The lease was therefore on a month-to-month
basis, which expires at the end of each month and at which time, either party may opt to
terminate or continue the lease under the same or under new terms and conditions.
Private respondents having opted to increase the rate of rentals, petitioners either have to accept
the new rate or leave the premises if no agreement is reached. But they cannot excuse
themselves from paying rentals altogether just because the negotiation as to such increase failed
to materialize. For the fact is that they still occupy the leased property. They derive benefit from
such occupation. NEMO CUM ALTERIUS DETRIMENTO LOCUPLETARI PROTEST. No one shall
enrich himself at the expense of another.
Petitioners' argument that no demand to vacate was given them deserves scant consideration. As
found by the Court of Appeals, private respondents' counsel sent petitioners two (2) letters of
demand, one addressed to Ramon Francisco and the other to Cristina Manalo. These letters were
returned unclaimed despite the fact that they were properly addressed to the petitioners and
despite notice given to the addressees of the letters. In the case of Gaspay vs. Hon. Sangco, et al.,
L-27826, December 18, 1967, we held that therein petitioners' claim that they were not served
with notice is belied by proof that they had refused to receive the same. No person is entitled to
profit from his wrong act of commission or omission.
As to the issue of whether the appellate court erred in not fixing a longer period of lease, we find no cogent
reason to depart from the aforesaid court ruling. Article 1687 of the New Civil Code empowers the courts to
fix the period of lease. Such prerogative is addressed to the court's sound judgment.
7
And such discretion
was certainly judiciously exercised in the case at bar for, again, as observed by the appellate court:
. . . Certainly, the default of petitioners in the payment of the rentals could not have
inspired the court to extend any further their stay in the premises as this would have
imposed more unjustifiable burden on the part of the owners.
8

WHEREFORE, the petition is DENIED. Costs against petitioners.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Corts, JJ., concur.
Footnotes
1 pp. 20-21, Rollo.
2 p. 25, Rollo.
3 pp. 21-22, Rollo.
4 p. 5, Petition, p. 7, Rollo.
5 p. 28, Rollo.
6 46 Phil. 184.
7 F.S. Divinagracia Agro Commercial, Inc. vs. Court of Appeals, 104 SCRA 180.
8 p. 29. Rollo

383

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 120915 April 3, 1998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSA ARUTA y MENGUIN, accused-appellant.

ROMERO, J.:
With the pervasive proliferation of illegal drugs and its pernicious effects on our society, our law
enforcers tend at times to overreach themselves in apprehending drug offenders to the extent of
failing to observe well-entrenched constitutional guarantees against illegal searches and arrests.
Consequently, drug offenders manage to evade the clutches of the law on mere technicalities.
Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating Section 4,
Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The information reads:
That on or about the fourteenth (14th) day of December, 1988, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without being lawfully authorized, did then and there willfully, unlawfully and
knowingly engage in transporting approximately eight (8) kilos and five hundred (500)
grams of dried marijuana packed in plastic bag marked "Cash Katutak" placed in a
traveling bag, which are prohibited drugs.
Upon arraignment, she pleaded "not guilty." After trial on the merits, the Regional Trial Court of
Olongapo City convicted and sentenced her to suffer the penalty of life imprisonment and to pay
a fine of twenty thousand (P20,000.00) pesos.
1

The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officer-in-Charge
of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on their
testimonies, the court a quofound the following:
On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that
a certain "Aling Rosa" would be arriving from Baguio City the following day, December 14, 1988,
with a large volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of
P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt.
Efren Quirubin.
Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the afternoon of
December 14, 1988 and deployed themselves near the Philippine National Bank (PNB) building
along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one
group, made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the
PNB building while the other group waited near the Caltex gasoline station.
384

While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on
its front and back bumpers stopped in front of the PNB building at around 6:30 in the evening of
the same day from where two females and a male got off. It was at this stage that the informant
pointed out to the team "Aling Rosa" who was then carrying a traveling bag.
Having ascertained that accused-appellant was "Aling Rosa," the team approached her and
introduced themselves as NARCOM agents. When P/Lt. Abello asked "Aling Rosa" about the
contents of her bag, the latter handed it to the former.
Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag
marked "Cash Katutak." The team confiscated the bag together with the Victory Liner bus ticket
to which Lt. Domingo affixed his signature. Accused-appellant was then brought to the NARCOM
office for investigation where a Receipt of Property Seized was prepared for the confiscated
marijuana leaves.
Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp
Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report
stating that said specimen yielded positive results for marijuana, a prohibited drug.
After the presentation of the testimonies of the arresting officers and of the above technical
report, the prosecution rested its case.
Instead of presenting its evidence, the defense filed a "Demurrer to Evidence" alleging the
illegality of the search and seizure of the items thereby violating accused-appellant's
constitutional right against unreasonable search and seizure as well as their inadmissibility in
evidence.
The said "Demurrer to Evidence" was, however, denied without the trial court ruling on the
alleged illegality of the search and seizure and the inadmissibility in evidence of the items seized
to avoid pre-judgment. Instead, the trial court continued to hear the case.
In view of said denial, accused-appellant testified on her behalf. As expected, her version of the
incident differed from that of the prosecution. She claimed that immediately prior to her arrest,
she had just come from Choice Theater where she watched the movie "Balweg." While about to
cross the road, an old woman asked her help in carrying a shoulder bag. In the middle of the
road, Lt. Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM
Office.
During investigation at said office, she disclaimed any knowledge as to the identity of the woman
and averred that the old woman was nowhere to be found after she was arrested. Moreover, she
added that no search warrant was shown to her by the arresting officers.
After the prosecution made a formal offer of evidence, the defense filed a "Comment and/or
Objection to Prosecution's Formal Offer of Evidence" contesting the admissibility of the items
seized as they were allegedly a product of an unreasonable search and seizure.
Not convinced with her version of the incident, the Regional Trial Court of Olongapo City
convicted accused-appellant of transporting eight (8) kilos and five hundred (500) grams of
marijuana from Baguio City to Olongapo City in violation of Section 4, Article 11 of R.A. No.
6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and sentenced her to
life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos without subsidiary
imprisonment in case of insolvency.
2

In this appeal, accused-appellant submits the following:
385

1. The trial court erred in holding that the NARCOM agents could not apply for a warrant
for the search of a bus or a passenger who boarded a bus because one of the
requirements for applying a search warrant is that the place to be searched must be
specifically designated and described.
2. The trial court erred in holding or assuming that if a search warrant was applied for by
the NARCOM agents, still no court would issue a search warrant for the reason that the
same would be considered a general search warrant which may be quashed.
3. The trial court erred in not finding that the warrantless search resulting to the arrest of
accused-appellant violated the latter's constitutional rights.
4. The trial court erred in not holding that although the defense of denial is weak yet the
evidence of the prosecution is even weaker.
These submissions are impressed with merit.
In People v. Ramos,
3
this Court held that a search may be conducted by law enforcers only on
the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of
the Constitution which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
This constitutional guarantee is not a blanket prohibition against all searches and seizures as it
operates only against "unreasonable" searches and seizures. The plain import of the language of
the Constitution, which in one sentence prohibits unreasonable searches and seizures and at the
same time prescribes the requisites for a valid warrant, is that searches and seizures are
normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest.
Thus, the fundamental protection accorded by the search and seizure clause is that between
person and police must stand the protective authority of a magistrate clothed with power to issue
or refuse to issue search warrants or warrants of arrest.
4

Further, articles which are the product of unreasonable searches and seizures are inadmissible
as evidence pursuant to the doctrine pronounced in Stonehill v. Diokno.
5
This exclusionary rule
was later enshrined in Article III, Section 3(2) of the Constitution, thus:
Sec. 3(2). Any evidence obtained in violation of this or the preceding section shall be
inadmissible in evidence for any purpose in any proceeding.
From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the
houses, papers, effects, and most importantly, on the person of an individual. The constitutional
provision guaranteed an impenetrable shield against unreasonable searches and seizures. As
such, it protects the privacy and sanctity of the person himself against unlawful arrests and
other forms of restraint.
6

Therewithal, the right of a person to be secured against any unreasonable seizure of his body
and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or
situation which allows exceptions to the requirement of a warrant of arrest or search warrant
must perforce be strictly construed and their application limited only to cases specifically
386

provided or allowed by law. To do otherwise is an infringement upon personal liberty and would
set back a right so basic and deserving of full protection and vindication yet often violated.
7

The following cases are specifically provided or allowed by law:
1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126
of the Rules of Court
8
and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which
the police are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the
right to be where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
9

6. Stop and Frisk;
10
and
7. Exigent and Emergency Circumstances.
11

The above exceptions, however, should not become unbridled licenses for law enforcement
officers to trample upon the constitutionally guaranteed and more fundamental right of persons
against unreasonable search and seizures. The essential requisite of probable cause must still be
satisfied before a warrantless search and seizure can be lawfully conducted.
Although probable cause eludes exact and concrete definition, it generally signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which he is charged.
It likewise refers to the existence of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the item(s),
article(s) or object(s) sought in connection with said offense or subject to seizure and destruction
by law is in the place to be searched.
12

It ought to be emphasized that in determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of our rules of evidence of which his
knowledge is technically nil. Rather, he relies on the calculus of common sense which all
reasonable men have in abundance. The same quantum of evidence is required in determining
probable cause relative to search. Before a search warrant can be issued, it must be shown by
substantial evidence that the items sought are in fact seizable by virtue of being connected with
criminal activity, and that the items will be found in the place to be searched.
13

387

In searches and seizures effected without a warrant, it is necessary for probable cause to be
present. Absent any probable cause, the article(s) seized could not be admitted and used as
evidence against the person arrested. Probable cause, in these cases, must only be based on
reasonable ground of suspicion or belief that a crime has been committed or is about to be
committed.
In our jurisprudence, there are instances where information has become a sufficient probable
cause to effect a warrantless search and seizure.
In People v. Tangliben,
14
acting on information supplied by informers, police officers conducted a
surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against
persons who may commit misdemeanors and also on those who may be engaging in the traffic of
dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red traveling
bag who was acting suspiciously. They confronted him and requested him to open his bag but
he refused. He acceded later on when the policemen identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of
Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their informant
regarding Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot
tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug
traffickers as their "business address". More significantly, Tangliben was acting suspiciously. His
actuations and surrounding circumstances led the policemen to reasonably suspect that
Tangliben is committing a crime. In instant case, there is no single indication that Aruta was
acting suspiciously.
In People v. Malmstedt,
15
the Narcom agents received reports that vehicles coming from Sagada
were transporting marijuana. They likewise received information that a Caucasian coming from
Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search
warrant, especially since the identity of the suspect could not be readily ascertained.
His actuations also aroused the suspicion of the officers conducting the operation. The Court held
that in light of such circumstances, to deprive the agents of the ability and facility to act
promptly, including a search without a warrant, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police
officers had reasonable time within which to secure a search warrant. Second, Aruta's identity
was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was
searched aboard a moving vehicle, a legally accepted exception to the warrant requirement.
Aruta, on the other hand, was searched while about to cross a street.
In People v. Bagista,
16
the NARCOM officers had probable cause to stop and search all vehicles
coming from the north to Acop, Tublay, Benguet in view of the confidential information they
received from their regular informant that a woman having the same appearance as that of
accused-appellant would be bringing marijuana from up north. They likewise had probable cause
to search accused-appellant's belongings since she fitted the description given by the NARCOM
informant. Since there was a valid warrantless search by the NARCOM agents, any evidence
obtained in the course of said search is admissible against accused-appellant. Again, this case
differs from Aruta as this involves a search of a moving vehicle plus the fact that the police
officers erected a checkpoint. Both are exceptions to the requirements of a search warrant.
In Manalili v. Court of Appeals and People,
17
the policemen conducted a surveillance in an area of
the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon
reaching the place, they chanced upon a man in front of the cemetery who appeared to be "high"
on drugs. He was observed to have reddish eyes and to be walking in a swaying manner.
388

Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he
was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana.
The Court held that the policemen had sufficient reason to accost accused-appellant to
determine if he was actually "high" on drugs due to his suspicious actuations, coupled with the
fact that based on information, this area was a haven for drug addicts.
In all the abovecited cases, there was information received which became the bases for
conducting the warrantless search. Furthermore, additional factors and circumstances were
present which, when taken together with the information, constituted probable causes which
justified the warrantless searches and seizures in each of the cases.
In the instant case, the determination of the absence or existence of probable cause necessitates
a reexamination of the facts. The following have been established: (1) In the morning of December
13, 1988, the law enforcement officers received information from an informant named "Benjie"
that a certain "Aling Rosa" would be leaving for Baguio City on December 14, 1988 and would be
back in the afternoon of the same day carrying with her a large volume of marijuana; (2) At 6:30
in the evening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus
carrying a traveling bag even as the informant pointed her out to the law enforcement officers; (3)
The law enforcement officers approached her and introduced themselves as NARCOM agents; (4)
When asked by Lt. Abello about the contents of her traveling bag, she gave the same to him; (5)
When they opened the same, they found dried marijuana leaves; (6) Accused-appellant was then
brought to the NARCOM office for investigation.
This case is similar to People v. Aminnudin where the police received information two days before
the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9.
His name was known, the vehicle was identified and the date of arrival was certain. From the
information they had received, the police could have persuaded a judge that there was probable
cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they
proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest
was held to be illegal; hence any item seized from Aminnudin could not be used against him.
Another recent case is People v. Encinada where the police likewise received confidential
information the day before at 4:00 in the afternoon from their informant that Encinada would be
bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the
following day. This intelligence information regarding the culprit's identity, the particular crime
he allegedly committed and his exact whereabouts could have been a basis of probable cause for
the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular
No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even
after court hours. The failure or neglect to secure one cannot serve as an excuse for violating
Encinada's constitutional right.
In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. To
legitimize the warrantless search and seizure of accused-appellant's bag, accused-appellant must
have been validly arrested under Section 5 of Rule 113 which provides inter alia:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
xxx xxx xxx
Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to
commit one nor had she just committed a crime. Accused-appellant was merely crossing the
389

street and was not acting in any manner that would engender a reasonable ground for the
NARCOM agents to suspect and conclude that she was committing a crime. It was only when the
informant pointed to accused-appellant and identified her to the agents as the carrier of the
marijuana that she was singled out as the suspect. The NARCOM agents would not have
apprehended accused-appellant were it not for the furtive finger of the informant because, as
clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect
that accused-appellant was committing a crime, except for the pointing finger of the informant.
This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional
guarantee against unreasonable search and seizure. Neither was there any semblance of any
compliance with the rigid requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of
accused-appellant's bag, there being no probable cause and the accused-appellant not having
been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows
that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The
constitutional guarantee against unreasonable search and seizure must perforce operate in favor
of accused-appellant. As such, the articles seized could not be used as evidence against accused-
appellant for these are "fruits of a poisoned tree" and, therefore, must be rejected, pursuant to
Article III, Sec. 3(2) of the Constitution.
Emphasis is to be laid on the fact that the law requires that the search be incidental to a lawful
arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond
cavil that a lawful arrest must precede the search of a person and his belongings. Where a
search is first undertaken, and an arrest effected based on evidence produced by the search,
both such search and arrest would be unlawful, for being contrary to law.
18

As previously discussed, the case in point is People v. Aminnudin
19
where, this Court observed
that:
. . . accused-appellant was not, at the moment of his arrest, committing a crime nor was
it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that
called for his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer pointed to him as
the carrier of the marijuana that he suddenly became suspect and so subject to
apprehension. It was the furtive finger that triggered his arrest. The identification by the
informer was the probable cause as determined by the officers (and not a judge) that
authorized them to pounce upon Aminnudin and immediately arrest him.
In the absence of probable cause to effect a valid and legal warrantless arrest, the search and
seizure of accused-appellant's bag would also not be justified as seizure of evidence in "plain
view" under the second exception. The marijuana was obviously not immediately apparent as
shown by the fact that the NARCOM agents still had to request accused-appellant to open the
bag to ascertain its contents.
Neither would the search and seizure of accused-appellant's bag be justified as a search of a
moving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellant
was apprehended several minutes after alighting from the Victory Liner bus. In fact, she was
accosted in the middle of the street and not while inside the vehicle.
People v. Solayao,
20
applied the stop and frisk principle which has been adopted in Posadas
v. Court of Appeals.
21
In said case, Solayao attempted to flee when he and his companions were
accosted by government agents. In the instant case, there was no observable manifestation that
could have aroused the suspicion of the NARCOM agents as to cause them to "stop and frisk"
accused-appellant. To reiterate, accused-appellant was merely crossing the street when
390

apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee
from the NARCOM agents when the latter identified themselves as such. Clearly, this is another
indication of the paucity of probable cause that would sufficiently provoke a suspicion that
accused-appellant was committing a crime.
The warrantless search and seizure could not likewise be categorized under exigent and
emergency circumstances, as applied in People v. De
Gracia.
22
In said case, there were intelligence reports that the building was being used as
headquarters by the RAM during a coup d' etat. A surveillance team was fired at by a group of
armed men coming out of the building and the occupants of said building refused to open the
door despite repeated requests. There were large quantities of explosives and ammunitions inside
the building. Nearby courts were closed and general chaos and disorder prevailed. The existing
circumstances sufficiently showed that a crime was being committed. In short, there was
probable cause to effect a warrantless search of the building. The same could not be said in the
instant case.
The only other exception that could possibly legitimize the warrantless search and seizure would
be consent given by the accused-appellant to the warrantless search as to amount to a waiver of
her constitutional right. The Solicitor General argues that accused-appellant voluntarily
submitted herself to search and inspection citing People v. Malasugui
23
where this Court ruled:
When one voluntarily submits to a search or consents to have it made on his person or
premises, he is precluded from complaining later thereof. (Cooley, Constitutional
Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search
may, like every right, be waived and such waiver may be made either expressly or
impliedly.
In support of said argument, the Solicitor General cited the testimony of Lt. Abello, thus:
Q When this informant by the name of alias Benjie pointed to Aling Rosa,
what happened after that?
A We followed her and introduced ourselves as NARCOM agents and
confronted her with our informant and asked her what she was carrying
and if we can see the bag she was carrying.
Q What was her reaction?
A She gave her bag to me.
Q So what happened after she gave the bag to you?
A I opened it and found out plastic bags of marijuana inside.
24

This Court cannot agree with the Solicitor General's contention for the Malasugui case is
inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest
thereby making the warrantless search effected immediately thereafter equally lawful.
25
On the
contrary, the most essential element of probable cause, as expounded above in detail, is wanting
in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search
which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the
articles seized from the accused-appellant could not be used as evidence against her.
Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in
handing over her bag to the NARCOM agents could not be construed as voluntary submission or
391

an implied acquiescence to the unreasonable search. The instant case is similar to People
v. Encinada,
26
where this Court held:
[T]he Republic's counsel avers that appellant voluntarily handed the chairs containing the
package of marijuana to the arresting officer and thus effectively waived his right against
the warrantless search. This he gleaned from Bolonia's testimony.
Q: After Roel Encinada alighted from the motor tricycle, what happened
next?
A: I requested to him to see his chairs that he carried.
Q: Are you referring to the two plastic chairs?
A: Yes, sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the two
chairs that he carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between
the two chairs.
We are not convinced. While in principle we agree that consent will validate an otherwise illegal
search, we believe that appellant based on the transcript quoted above did not voluntarily
consent to Bolonia's search of his belongings. Appellant's silence should not be lightly taken as
consent to such search. The implied acquiescence to the search, if there was any, could not have
been more than mere passive conformity given under intimidating or coercive circumstances and is
thus considered no consent at all within the purview of the constitutional guarantee. Furthermore,
considering that the search was conducted irregularly, i.e., without a warrant, we cannot
appreciate consent based merely on the presumption of regularity of the performance of duty."
(Emphasis supplied)
Thus, accused-appellant's lack of objection to the search is not tantamount to a waiver of her
constitutional rights or a voluntary submission to the warrantless search. As this Court held
in People v. Barros:
27

. . . [T]he accused is not to be presumed to have waived the unlawful search conducted on
the occasion of his warrantless arrest "simply because he failed to object"
. . . To constitute a waiver, it must appear first that the right exists;
secondly, that the person involved had knowledge, actual or constructive,
of the existence of such right; and lastly, that said person had an actual
intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil.
698). The fact that the accused failed to object to the entry into his house
does not amount to a permission to make a search therein (Magoncia v.
Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case
of Pasion Vda. de Garcia v. Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any affirmative
act of the citizen, the courts do not place the citizen in the position of
either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a
392

search or seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. (Citation omitted).
We apply the rule that: "courts indulge every reasonable presumption against waiver of
fundamental constitutional rights and that we do not presume acquiescence in the loss of
fundamental rights."
28
(Emphasis supplied)
To repeat, to constitute a waiver, there should be an actual intention to relinquish the right. As
clearly illustrated in People v.Omaweng,
29
where prosecution witness Joseph Layong testified
thus:
PROSECUTOR AYOCHOK:
Q When you and David Fomocod saw the travelling bag, what did you
do?
A When we saw that traveling bag, we asked the driver if we could see
the contents.
Q And what did or what was the reply of the driver, if there was any?
A He said "you can see the contents but those are only clothings" (sic).
Q When he said that, what did you do?
A We asked him if we could open and see it.
Q When you said that, what did he tell you?
A He said "you can see it".
Q And when he said "you can see and open it," what did you do?
A When I went inside and opened the bag, I saw that it was not
clothings (sic) that was contained in the bag.
Q And when you saw that it was not clothings (sic), what did you do?
A When I saw that the contents were not clothes, I took some of the
contents and showed it to my companion Fomocod and when Fomocod
smelled it, he said it was marijuana. (Emphasis supplied)
In the above-mentioned case, accused was not subjected to any search which may be stigmatized
as a violation of his Constitutional right against unreasonable searches and seizures. If one had
been made, this Court would be the first to condemn it "as the protection of the citizen and the
maintenance of his constitutional rights is one of the highest duties and privileges of the Court."
He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his
vehicle and traveling bag, which is not the case with Aruta.
In an attempt to further justify the warrantless search, the Solicitor General next argues that the
police officers would have encountered difficulty in securing a search warrant as it could be
secured only if accused-appellant's name was known, the vehicle identified and the date of its
393

arrival certain, as in the Aminnudin case where the arresting officers had forty-eight hours within
which to act.
This argument is untenable.
Article IV, Section 3 of the Constitution provides:
. . . [N]o search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things
to be seized. (Emphasis supplied)
Search warrants to be valid must particularly describe the place to be searched and the persons
or things to be seized. The purpose of this rule is to limit the things to be seized to those and
only those, particularly described in the warrant so as to leave the officers of the law with no
discretion regarding what articles they shall seize to the end that unreasonable searches and
seizures may not be made.
30

Had the NARCOM agents only applied for a search warrant, they could have secured one without
too much difficulty, contrary to the assertions of the Solicitor General. The person intended to be
searched has been particularized and the thing to be seized specified. The time was also
sufficiently ascertained to be in the afternoon of December 14, 1988. "Aling Rosa" turned out to
be accused-appellant and the thing to be seized was marijuana. The vehicle was identified to be a
Victory Liner bus. In fact, the NARCOM agents purposely positioned themselves near the spot
where Victory Liner buses normally unload their passengers. Assuming that the NARCOM agents
failed to particularize the vehicle, this would not in any way hinder them from securing a search
warrant. The above particulars would have already sufficed. In any case, this Court has held that
the police should particularly describe the place to be searched and the person or things to be
seized, wherever and whenever it is feasible.
31
(Emphasis supplied)
While it may be argued that by entering a plea during arraignment and by actively participating
in the trial, accused-appellant may be deemed to have waived objections to the illegality of the
warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not
apply in the instant case for the following reasons:
1. The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of
"not guilty" and participation in the trial are indications of her voluntary submission to the
court's jurisdiction.
32
The plea and active participation in the trial would not cure the illegality of
the search and transform the inadmissible evidence into objects of proof. The waiver simply does
not extend this far.
2. Granting that evidence obtained through a warrantless search becomes admissible upon
failure to object thereto during the trial of the case, records show that accused-appellant filed a
Demurrer to Evidence and objected and opposed the prosecution's Formal Offer of Evidence.
It is apropos to quote the case of People v. Barros,
33
which stated:
It might be supposed that the non-admissibility of evidence secured through an invalid
warrantless arrest or a warrantless search and seizure may be waived by an accused
person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or
an arrest effected with a defective warrant of arrest may be waived by applying for and
posting of bail for provisional liberty, so as to estop an accused from questioning the
legality or constitutionality of his detention or the failure to accord him a preliminary
investigation. We do not believe, however, that waiver of the latter necessarily constitutes,
394

or carries with it, waiver of the former an argument that the Solicitor General appears
to be making impliedly. Waiver of the non-admissibility of the "fruits" of an invalid
warrantless arrest and of a warrantless search and seizure is not casually to be presumed,
if the constitutional right against unlawful searches and seizures is to retain its vitality for
the protection of our people. In the case at bar, defense counsel had expressly objected on
constitutional grounds to the admission of the carton box and the four (4) kilos of
marijuana when these were formally offered in evidence by the prosecution. We consider
that appellant's objection to the admission of such evidence was made clearly and
seasonably and that, under the circumstances, no intent to waive his rights under the
premises can be reasonably inferred from his conduct before or during the trial. (Emphasis
supplied).
In fine, there was really no excuse for the NARCOM agents not to procure a search warrant
considering that they had more than twenty-four hours to do so. Obviously, this is again an
instance of seizure of the "fruit of the poisonous tree," hence illegal and inadmissible
subsequently in evidence.
The exclusion of such evidence is the only practical means of enforcing the constitutional
injunction against unreasonable searches and seizure. The non-exclusionary rule is contrary to
the letter and spirit of the prohibition against unreasonable searches and seizures.
34

While conceding that the officer making the unlawful search and seizure may be held criminally
and civilly liable, theStonehill case observed that most jurisdictions have realized that the
exclusionary rule is "the only practical means of enforcing the constitutional injunction" against
abuse. This approach is based on the justification made by Judge Learned Hand that "only in
case the prosecution which itself controls the seizing officials, knows that it cannot profit by their
wrong, will the wrong be repressed."
35

Unreasonable searches and seizures are the menace against which the constitutional guarantees
afford full protection. While the power to search and seize may at times be necessary to the
public welfare, still it may be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance
to justify indifference to the basic principles of government.
36

Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice
Holmes declared: "I think it is less evil that some criminals escape than that the government
should play an ignoble part." It is simply not allowed in free society to violate a law to enforce
another, especially if the law violated is the Constitution itself.
37

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 73,
Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to establish her guilt
beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN is hereby ACQUITTED
and ordered RELEASED from confinement unless she is being held for some other legal grounds.
No costs.
SO ORDERED.
Narvasa, C.J., Kapunan and Purisima, JJ., concur.
Footnotes
1 Decision penned by Judge Alicia L. Santos.
395

2 Decision, Rollo, p. 49.
3 222 SCRA 557 [1993].
4 Bernas, The Constitution of the Republic of the Philippines, A Commentary,
1987, First ed., pp. 85-86.
5 20 SCRA 383 [1967].
6 Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A
Commentary 1996 ed., pp. 147-148.
7 People v. Argawanon, 215 SCRA 652 [1992].
8 "Search incident to lawful arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may be used as proof of the commission
of an offense, without a search warrant."
9 Padilla v. CA and People, G.R. No. 121917, March 12, 1997.
10 People v. Solayao, 262 SCRA 255 [1996].
11 People v. De Gracia, 233 SCRA 716 [1994].
12 People v. Encinada, G.R. No. 116720, October 2, 1997.
13 Webb v. De Leon, 247 SCRA 652 [1995].
14 84 SCRA 220 [1990].
15 198 SCRA 401 [1991].
16 214 SCRA 63 [1992].
17 G.R. No. 113447, October 9, 1997.
18 People v. Cuizon, 256 SCRA 325 [1996].
19 163 SCRA 402 [1988].
20 262 SCRA 255 [1996].
21 188 SCRA 288 [1990].
22 233 SCRA 716 [1994].
23 63 Phil. 221 [1936].
24 TSN, June 14, 1989, p. 6.
25 Supra.
396

26 G.R. No. 116720, October 2, 1997.
27 231 SCRA 557 [1994].
28 Supra, citing Johnson v. Zerbst, 304 U.S. 458.
29 213 SCRA 462 [1992].
30 Herrera, Oscar, A Handbook on Arrest, Search and Seizure and Custodial
Investigation, 1994 ed., p. 60.
31 People v. Veloso, 48 Phil. 169 [1925).
32 People v. De Guzman, 224 SCRA 93 [1993], People v. De Guia, 227 SCRA 614
[1993], People v. De Guzman, 231 SCRA 737 [1994], People v. Correa, G.R. No.
119246, January 30, 1998.
33 Supra.
34 Stonehill v. Diokno, 20 SCRA 383 [1967].
35 Cruz I. A., Constitutional Law, 1991 ed., p. 148.
36 Pamaran, The 1985 Rules on Criminal Procedure, Annotated, 1995 ed., p.
526 citing Rodriguez v. Villamiel, 65 Phil. 230 and Alvarez v. CFI of Tayabas, 64
Phil. 33.
37 People v. Aminnudin, supra.