6. SOUTHERN HEMISPHERE V.

ANTI TERRORISM COUNCIL

DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the
constitutionality of Republic Act No. 9372 (RA 9372), An Act to Secure the
State and Protect our People from Terrorism, otherwise known as the Human
Security Act of 2007,[1] signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15,

2007,[2] petitioner Southern Hemisphere Engagement Network, Inc., a nongovernment organization, and Atty. Soliman Santos, Jr., a concerned citizen,
taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16,
2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo
Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLUKMU), and Center for Trade Union and Human Rights (CTUHR), represented by
their respective officers[3] who are also bringing the action in their capacity as
citizens, filed a petition for certiorari and prohibition docketed as G.R. No.
178554.
The following day, July 17, 2007, organizations Bagong
Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid
ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties

(MCCCL), Confederation for Unity,

Recognition and Advancement of

Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap

(KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students
(LFS),

Anakbayan,

Pambansang

Lakas

ng

Kilusang

Mamamalakaya

(PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health

Alliance for Democracy (HEAD), and Agham, represented by their respective
officers,[4] and joined by concerned citizens and taxpayers Teofisto Guingona, Jr.,
Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan,
OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan,
Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo
Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition
for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member

organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and
Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were
represented by their respective officers[5] who are also bringing action on their own
behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.
On August

29,

2007,

the

Integrated

Bar

of

the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),[6] Senator
Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada
filed a petition for certiorari and prohibition docketed as G.R. No. 179157.
Bagong

Alyansang

Makabayan-Southern

Tagalog

(BAYAN-ST), other regional chapters and organizations mostly based in the

Southern Tagalog Region, [7] and individuals[8] followed suit by filing on September

19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that
replicates the allegations raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the
Anti-Terrorism Council[9] composed of, at the time of the filing of the petitions,
Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul
Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo,
Acting Defense Secretary and National Security Adviser Norberto Gonzales,
Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the IBP, also
impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes
Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise
impleaded President Gloria Macapagal-Arroyo and the support agencies for the
Anti-Terrorism Council like the National Intelligence Coordinating Agency,
National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense,
Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center
on Transnational Crime, and the PNP intelligence and investigative elements.
The petitions fail.

Petitioners resort to certiorari is

improper

 Preliminarily, certiorari does not lie against respondents

who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of
the Rules of Court is clear:
Section 1. Petition for certiorari.When any tribunal, board
or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, nor any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and
underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity

how respondents acted without or in excess of their respective jurisdictions, or with
grave abuse of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the
petitions fail just the same.
In constitutional litigations, the power of judicial review is
limited by four exacting requisites, viz: (a) there must be an actual case or
controversy; (b) petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.[10]

 In the present case, the dismal absence of the first two

requisites, which are the most essential, renders the discussion of the last two
superfluous.
Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in

the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.[11]
Anak Mindanao Party-List Group v. The Executive
Secretary[12] summarized the rule on locus standi, thus:
Locus standi or legal standing has been
defined as a personal and substantial interest in a case such that the party
has sustained or will sustain direct injury as a result of the governmental
act that is being challenged. The gist of the question on standing is
whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of
difficult constitutional questions.
[A] party who assails the constitutionality of
a statute must have a direct and personal interest. It must show not
only that the law or any governmental act is invalid, but also that it
sustained or is in immediate danger of sustaining some direct injury
as a result of its enforcement, and not merely that it suffers thereby in
some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is
about to be subjected to some burdens or penalties by reason of the
statute or act complained of.
For a concerned party to be allowed to raise a
constitutional question, it must show that (1) it has personally suffered

some actual or threatened injury as a result of the allegedly illegal

conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a
favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of

being suspected communist fronts by the government, especially the military;
whereas

individual

petitioners

invariably

invoke

the

transcendental

importance doctrine and their status as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public
importance dispenses with the requirement that petitioner has experienced or is in
actual danger of suffering direct and personal injury, cases involving the
constitutionality of penal legislation belong to an altogether different genus of
constitutional litigation. Compelling State and societal interests in the
proscription of harmful conduct, as will later be elucidated, necessitate a
closer judicial scrutiny oflocus standi.
Petitioners have not presented any personal stake in the
outcome of the controversy. None of them faces any charge under RA 9372.
KARAPATAN,

Hustisya,

Desaparecidos,

SELDA,

EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been
subjected to close security surveillance by state security forces, their members
followed by suspicious persons and vehicles with dark windshields, and
their offices monitored by men with military build. They likewise claim that
they have been branded as enemies of the [S]tate.[14]

 Even conceding such gratuitous allegations, the Office of the

Solicitor General (OSG) correctly points out that petitioners have yet to show
anyconnection between the purported surveillance and the implementation
of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE,
KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante,
HEADand Agham, petitioner-organizations in G.R. No. 178581, would like the
Court to take judicial notice of respondents alleged action of tagging them as
militant organizations fronting for the Communist Party of the Philippines (CPP)
and its armed wing, the National Peoples Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription without
following the procedure under the law. [15] The petition of BAYAN-ST, et al. in
G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged
tagging of petitioners.
Generally speaking, matters of judicial notice
have three material requisites: (1) the matter must be one of common
and general knowledge; (2) it must be well and authoritatively
settled and not doubtful or uncertain; and (3) it must be known to be
within the limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is limited to facts
evidenced by public records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a reasonable dispute in
that it is either: (1) generally known within the territorial jurisdiction of
the trial court; or (2) capable of accurate and ready determination by
resorting to sources whose accuracy cannot reasonably be
questionable.

 Things of common knowledge, of which

courts take judicial matters coming to the knowledge of men generally in
the course of the ordinary experiences of life, or they may be matters
which are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias, dictionaries or other
publications, are judicially noticed, provided, they are of such universal
notoriety and so generally understood that they may be regarded as
forming part of the common knowledge of every person. As the
common knowledge of man ranges far and wide, a wide variety of
particular facts have been judicially noticed as being matters of common
knowledge. But a court cannot take judicial notice of any fact
which, in part, is dependent on the existence or non-existence of a
fact
of
which
the
court
has
no
constructive
[16]
knowledge. (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial

notice. Petitioners

apprehension

is

insufficient

to

substantiate

their

plea. That no specific charge or proscription under RA 9372 has been filed
against them, three years after its effectivity, belies any claim of imminence of
their perceived threat emanating from the so-called tagging.
The

same

is

true

with

petitioners KMU,

NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their
supposed link to the CPP and NPA. They fail to particularize how the
implementation of specific provisions of RA 9372 would result in direct injury to
their organization and members.
While in our jurisdiction there is still no judicially declared
terrorist organization, the United States of America [17] (US) and the European
Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement of

Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the
Arroyo Administration would adopt the US and EU classification of the CPP and
NPA as terrorist organizations.[19] Such statement notwithstanding, there is yet
to be filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under RA
9372. Again, RA 9372 has been in effect for three years now. From July
2007 up to the present, petitioner-organizations have conducted their activities
fully and freely without any threat of, much less an actual, prosecution or
proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution
initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casio, Rafael
Mariano and Luzviminda Ilagan,[20] urged the government to resume peace
negotiations with the NDF by removing the impediments thereto, one of which is
the adoption of designation of the CPP and NPA by the US and EU as foreign
terrorist organizations. Considering the policy statement of the Aquino
Administration[21] of resuming peace talks with the NDF, the government is not
imminently disposed to ask for the judicial proscription of the CPP-NPA
consortium and its allied organizations.
More important, there are other parties not before the Court
with direct and specific interests in the questions being raised.[22] Of recent
development is the filing of the first case for proscription under Section 17[23] of
RA 9372 by the Department of Justice before the Basilan Regional Trial Court
against the Abu Sayyaf Group.[24] Petitioner-organizations do not in the least
allege any link to the Abu Sayyaf Group.

 Some petitioners attempt, in vain though, to show the

imminence of a prosecution under RA 9372 by alluding to past rebellion charges
against them.
In Ladlad v. Velasco,[25] the Court ordered the dismissal of
rebellion charges filed in 2006 against then Party-List Representatives Crispin
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel
Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also
named in the dismissed rebellion charges were petitioners Rey Claro Casambre,
Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
Danilo Ramos; and accused of being front organizations for the Communist
movement

were

petitioner-organizations

KMU,

BAYAN,

GABRIELA,

PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. [26]

The dismissed rebellion charges, however, do not save the
day for petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372, and dismissed by this Court. For another, rebellion is
defined and punished under the Revised Penal Code. Prosecution for rebellion is
not made more imminent by the enactment of RA 9372, nor does the enactment
thereof make it easier to charge a person with rebellion, its elements not having
been altered.
Conversely, previously filed but dismissed rebellion charges
bear no relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372, none of
petitioners has been charged.

 Petitioners IBP and CODAL in G.R. No. 179157 base their

claim of locus standi on their sworn duty to uphold the Constitution. The IBP
zeroes in on Section 21 of RA 9372 directing it to render assistance to those
arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law
does not, however, suffice to clothe the IBP or any of its members with
standing.[27] The IBP failed to sufficiently demonstrate how its mandate under
the assailed statute revolts against its constitutional rights and duties. Moreover,
both the IBP and CODAL have not pointed to even a single arrest or detention
effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims

to have been the subject of political surveillance, also lacks locus
standi.Prescinding from the veracity, let alone legal basis, of the claim of
political surveillance, the Court finds that she has not shown even the slightest
threat of being charged

under

RA

9372. Similarly

lacking

in locus

standi are former Senator Wigberto Taada and Senator Sergio Osmea III,
who cite their being respectively a human rights advocate and an oppositor to the
passage of RA 9372. Outside these gratuitous statements, no concrete injury to
them has been pinpointed.
Petitioners Southern

Hemisphere

Engagement

Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently
state that the issues they raise are of transcendental importance, which must be
settled early and are of far-reaching implications, without mention of any
specific provision of RA 9372 under which they have been charged, or may be
charged. Mere invocation of human rights advocacy has nowhere been held

sufficient to clothe litigants with locus standi. Petitioners must show an actual,
or immediate danger of sustaining, direct injury as a result of the laws
enforcement. To rule otherwise would be to corrupt the settled doctrine of locus
standi, as every worthy cause is an interest shared by the general
public.
Neither can locus standi be conferred upon individual
petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is
an exercise of the spending or taxing power of Congress, [28] whereas citizen
standing must rest on direct and personal interest in the proceeding. [29]
RA 9372 is a penal statute and does not even provide for any
appropriation from Congress for its implementation, while none of the individual
petitioner-citizens has alleged any direct and personal interest in the
implementation of the law.
It

bears

to

stress

that generalized

interests,

albeit

accompanied by the assertion of a public right, do not establish locus

standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case
or controversy

By constitutional fiat, judicial power operates only when

there is an actual case or controversy.
Section 1. The judicial power shall be vested
in one Supreme Court and in such lower courts as may be established by
law.

 Judicial power includes the duty of the courts

of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government.[30] (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court

ruled that the power of judicial review is limited to actual cases or controversies to
be exercised after full opportunity of argument by the parties. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities.

An actual case or controversy means an existing case or

controversy that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory opinion.[32]

Information Technology Foundation of the Philippines v.

COMELEC[33] cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions
to
satisfy
scholarly
interest,
however
intellectually
challenging. The controversy must be justiciabledefinite and
concrete, touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a
denial thereof on the other hand; that is, it must concern a real
and not merely a theoretical question or issue.There ought to
be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a hypothetical state of
facts. (Emphasis and underscoring supplied)

Thus,

petition

to

declare

unconstitutional

law

converting

the Municipality of Makati into a Highly Urbanized City was held to be premature
as it was tacked on uncertain, contingent events. [34] Similarly, a petition that fails
to allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem. [35]
The Court dismissed the petition in Philippine Press
Institute v. Commission on Elections[36] for failure to cite any specific affirmative
action of the Commission on Elections to implement the assailed resolution. It
refused, in Abbas v. Commission on Elections,[37] to rule on the religious freedom
claim of the therein petitioners based merely on a perceived potential conflict
between the provisions of the Muslim Code and those of the national law, there
being no actual controversy between real litigants.
The list of cases denying claims resting on purely
hypothetical or anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the
occurrence

of

a perceived

threat to

any

constitutional

interest

suffices to provide a basis for mounting a constitutional challenge. This,

however, is qualified by the requirement that there must be sufficient facts to
enable the Court to intelligently adjudicate the issues. [38]

Very recently, the US Supreme Court, in Holder v.

Humanitarian Law Project,[39] allowed the pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since plaintiffs faced a credible threat
of prosecution and should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.[40] The plaintiffs therein filed
an action before a federal court to assail the constitutionality of the material
support statute, 18 U.S.C. 2339B (a) (1),[41] proscribing the provision of material
support to organizations declared by the Secretary of State as foreign terrorist
organizations. They claimed that they intended to provide support for the
humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication
on the merits when an anticipatory petition clearly shows that the challenged
prohibition forbids the conduct or activity that a petitioner seeks to do, as
there would then be a justiciable controversy.[42]
Unlike the plaintiffs in Holder, however, herein petitioners
have

failed

to

show

that

the

challenged

provisions

of

RA

9372

forbidconstitutionally protected conduct or activity that they seek to do. No

demonstrable threat has been established, much less a real and existing one.
Petitioners

obscure

allegations

of

sporadic

surveillance and supposedly being tagged as communist fronts in no

way approximate a credible threat of prosecution. From these allegations, the

Court is being lured to render an advisory opinion, which is not its function.[43]
Without any justiciable controversy, the petitions have
become pleas for declaratory relief, over which the Court has no original
jurisdiction.Then again, declaratory actions characterized by

double

contingency, where both the activity the petitioners intend to undertake and the
anticipated reaction to it of a public official are merely theorized, lie beyond
judicial review for lack of ripeness.[44]
The possibility of abuse in the implementation of RA 9372
does not avail to take the present petitions out of the realm of the surreal and
merely imagined. Such possibility is not peculiar to RA 9372 since the exercise
of any power granted by law may be abused. [45] Allegations of abuse must be
anchored on real events
controversies involving

before

rights

courts

which

may step
are

legally

in to settle actual
demandable

and

enforceable.

A facial invalidation of a statute is allowed

only in free speech cases, wherein certain rules
of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and

impermissibly broad the definition of the crime of terrorism[46] under RA 9372 in
that terms like widespread and extraordinary fear and panic among the
populace and coerce the government to give in to an unlawful demand are
nebulous, leaving law enforcement agencies with no standard to measure the
prohibited acts.

 Respondents, through the OSG, counter that the doctrines of

void-for-vagueness and overbreadth find no application in the present case since
these doctrines apply only to free speech cases; and that RA 9372 regulates
conduct, not speech.
For a jurisprudentially guided understanding of these
doctrines, it is imperative to outline the schools of thought on whether the void-forvagueness and overbreadth doctrines are equally applicable grounds to assail
a penal statute.
Respondents interpret recent jurisprudence as slanting
toward the idea of limiting the application of the two doctrines to free speech
cases.They particularly cite Romualdez v. Hon. Sandiganbayan [47] and Estrada v.
Sandiganbayan.[48]
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the
word intervene in Section 5[49] of the Anti-Graft and Corrupt Practices Act
was intrinsically vague and impermissibly broad. The Court stated that the
overbreadth and the vagueness doctrines have special application only to freespeech cases, and are not appropriate for testing the validity of penal
statutes.[50] It added that, at any rate, the challenged provision, under which
the therein petitioner was charged, is not vague.[51]
While in the subsequent case of Romualdez v. Commission
on Elections,[52] the Court stated that a facial invalidation of criminal statutes is not

appropriate, it nonetheless proceeded to conduct a vagueness analysis, and

concluded that the therein subject election offense [53] under the Voters
Registration Act of 1996, with which the therein petitioners were charged, is
couched in precise language.[54]
The two Romualdez cases rely heavily on the Separate
Opinion[55] of Justice Vicente V. Mendoza in the Estrada case, where the Court
found the Anti-Plunder Law (Republic Act No. 7080) clear and free from
ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates
these two doctrines to the concept of a facial invalidation as opposed to an
as-applied challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its validity. The
pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted
at length in the main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which

is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application

only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." InBroadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For
this reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily

results in a kind of case that is wholly unsatisfactory for deciding

constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case
must be examined in the light of the conduct with which the defendant is
charged.[56] (Underscoring supplied.)

The confusion apparently stems from the interlocking

relation of the overbreadth and vagueness doctrines as grounds for a facial or asappliedchallenge against a penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of abridgement of the freedom of
speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it
lacks comprehensible standards that men of common intelligence must necessarily
guess at its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and

becomes

an

arbitrary

flexing

of

the

Government

muscle.[57] The overbreadth doctrine, meanwhile, decrees 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. [58]

 As

distinguished

from the

vagueness

doctrine,

the

overbreadth doctrine assumes that individuals will understand what a statute

prohibits and will accordingly refrain from that behavior, even though some of it is
protected.[59]
A facial challenge is likewise different from an asapplied challenge.
Distinguished from an as-applied challenge which considers
only extant facts affecting real litigants, a facial invalidation is an examination of
the entire law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from constitutionally
protected speech or activities.[60]
Justice Mendoza accurately phrased the subtitle [61] in his
concurring opinion that the vagueness and overbreadth doctrines, as grounds for a
facial challenge, are not applicable to penal laws. A litigant cannot thus
successfully mount a facial challenge against a criminal statute on either
vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is
justified by the aim to avert the chilling effect on protected speech, the
exercise of which should not at all times be abridged.[62] As reflected
earlier, this rationale is inapplicable to plain penal statutes that generally bear an
in terrorem effect in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered innocent and

lawful, so long as it refrains from diminishing or dissuading the exercise of

constitutionally protected rights.[63]
The Court reiterated that there are critical limitations by
which a criminal statute may be challenged and underscored that an on-itsface invalidation of penal statutes x x x may not be allowed.[64]
[T]he rule established in our jurisdiction is,
only statutes on free speech, religious freedom, and other fundamental
rights may be facially challenged.Under no case may ordinary penal
statutes be subjected to a facial challenge. The rationale is obvious. If
a facial challenge to a penal statute is permitted, the prosecution of crimes
may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal statutes,
if the same is allowed, would effectively go against the grain of the
doctrinal requirement of an existing and concrete controversy before
judicial power may be appropriately exercised. A facial challenge
against a penal statute is, at best, amorphous and speculative. It would,
essentially, force the court to consider third parties who are not before
it. As I have said in my opposition to the allowance of a facial
challenge to attack penal statutes, such a test will impair the States
ability to deal with crime. If warranted, there would be nothing that can
hinder an accused from defeating the States power to prosecute on a
mere showing that, as applied to third parties, the penal statute is vague or
overbroad, notwithstanding that the law is clear as applied to
him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the

overbreadth doctrine is limited to a facial kind of challenge and, owing to the
given rationale of a facial challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily
apply a facial type of invalidation in order to plot areas of protected speech,

inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated,
a statute cannot be properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.
The most distinctive feature of the overbreadth
technique is that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a
statute is unconstitutional as applied to him or her; if the litigant prevails,
the courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties
and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute "on its face," not merely "as
applied for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes
that an overbroad laws "very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.[66] (Emphasis in the original
omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims,

the Court, in at least two cases, [67] observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the limited context of the First
Amendment,[68] and that claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only spoken
words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes

are justified by the transcendent value to all society of constitutionally protected

expression.[71]
Since a penal statute may only be assailed for
being vague as applied to petitioners, a limited
vagueness analysis of the definition of
terrorism in RA 9372 is legally impermissible
absent an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did

not preclude the operation of the vagueness test on the Anti-Plunder Law as
appliedto the therein petitioner, finding, however, that there was no basis to review
the law on its face and in its entirety.[72] It stressed that statutes found
vague as a matter of due process typically are invalidated only 'as applied' to a
particular defendant.[73]
American

jurisprudence[74] instructs

that

vagueness

challenges that do not involve the First Amendment must be examined in light of
thespecific facts of the case at hand and not with regard to the statute's facial
validity.
For more than 125 years, the US Supreme Court has
evaluated defendants claims that criminal statutes are unconstitutionally vague,
developing a doctrine hailed as among the most important guarantees of liberty
under law.[75]
In this jurisdiction, the void-for-vagueness doctrine asserted
under the due process clause has been utilized in examining the constitutionality of
criminal statutes. In at least three cases,[76] the Court brought the doctrine into

play in analyzing an ordinance penalizing the non-payment of municipal tax on

fishponds, the crime of illegal recruitment punishable under Article 132(b) of the
Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal
Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.
There is no merit in the claim that RA 9372
regulates speech so as to permit a facial
analysis of its validity

From the definition of the crime of terrorism in the earlier

cited Section 3 of RA 9372, the following elements may be culled: (1) the offender
commits an act punishable under any of the cited provisions of the Revised Penal
Code, or under any of the enumerated special penal laws; (2) the commission of
the predicate crime sows and creates a condition of widespread and extraordinary
fear and panic among the populace; and (3) the offender is actuated by the desire to
coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the
law penalizes speech, petitioners contend that the element of unlawful demand
in the definition of terrorism[77] must necessarily be transmitted through some form
of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to
penalize is conduct, not speech.

 Before a charge for terrorism may be filed under RA 9372,

there must first be a predicate crime actually committed to trigger the operation of
the key qualifying phrases in the other elements of the crime, including
the coercion of the government to accede to an unlawful demand. Given the
presence of the first element, any attempt at singling out or highlighting the
communicative component of the prohibition cannot recategorize the unprotected
conduct into a protected speech.
Petitioners notion on the transmission of message is
entirely inaccurate, as it unduly focuses on just one particle of an element of the
crime.Almost every commission of a crime entails some mincing of words on
the part of the offender like in declaring to launch overt criminal acts against a
victim, in haggling on the amount of ransom or conditions, or in negotiating a
deceitful transaction. An analogy in one U.S. case[78] illustrated that the fact that
the prohibition on discrimination in hiring on the basis of race will require an
employer to take down a sign reading White Applicants Only hardly means
that the law should be analyzed as one regulating speech rather than
conduct.

Utterances not elemental but inevitably incidental to the

doing of the criminal conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not
speech. This holds true a fortiori in the present case where the expression figures
only as an inevitable incident of making the element of coercion perceptible.
[I]t is true that the agreements and course of
conduct here were as in most instances brought about through speaking or
writing. But it has never been deemed an abridgement of freedom of
speech or press to make a course of conduct illegal merely because

the conduct was, in part, initiated, evidenced, or carried out by means of

language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would
make it practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies
deemed injurious to society.[79] (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected

conduct, because they merely evidence a prohibited conduct. [80] Since speech is
not involved here, the Court cannot heed the call for a facial analysis.
IN FINE, Estrada and the other cited authorities engaged in
a vagueness analysis of the therein subject penal statute as applied to the therein
petitioners inasmuch as they were actually charged with the pertinent crimes
challenged on vagueness grounds. The Court in said cases, however, found no
basis to review the assailed penal statute on its face and in its entirety.
In Holder, on

the

other

hand,

the

US

Supreme

Court allowed the pre-enforcement review of a criminal statute, challenged on

vagueness grounds, since the therein plaintiffs faced a credible threat of
prosecution and should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.
As earlier reflected, petitioners have established neither an
actual charge nor a credible threat of prosecution under RA 9372. Even a
limited vagueness analysis of the assailed definition of terrorism is thus
legally impermissible. The Court reminds litigants that judicial power neither
contemplates speculative counseling on a statutes future effect on hypothetical
scenarios nor allows the courts to be used as an extension of a failed legislative
lobbying in Congress.


WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

8. LINDA CADIAO-PALACIOS v
PEOPLE
.

DECISION

For review is the Decision[1] of the Sandiganbayan dated January 28, 2005 in
Criminal Case No. 27434, finding Victor S. Venturanza (Venturanza) and
petitioner Linda Cadiao-Palacios guilty beyond reasonable doubt of violation of
Section 3(b), Republic Act (R.A.) No. 3019. [2]
Petitioner

was

the

the Municipality of Culasi, Province of Antique from

mayor
July

1998

of
to

June

2001.[3] During her administration, there were infrastructure projects that were
initiated during the incumbency of her predecessor, then Mayor Aida Alpas, which
remained partially unpaid. These included the Janlagasi Diversion Dam, San
Luis Diversion Dam, Caridad-Bagacay Road, and San Juan-Tumao Road which
were contracted by L.S. Gamotin Construction (L.S. Gamotin) with a total project

cost of P2 million. For the said projects, the municipality owed the
contractor P791,047.00.[4]
Relative to the aforesaid projects, petitioner, together with Venturanza, then
the Municipal Security Officer, was indicted in an Information for violation of
Section 3(b), R.A. No. 3019, the accusatory portion of which reads:
That in or about the month of January, 1999, and for sometime
prior and subsequent thereto, at the Municipality of Culasi, Province of
Antique, Philippines, and within the jurisdiction of this Honorable Court,
above-named accused, LINDA CADIAO PALACIOS and VIC
VENTURANZA, public officers, being the Municipal Mayor and
Security Officer to the Mayor, respectively, of the Municipality of
Culasi, Antique, and as such, accused Mayor is the approving authority
of contracts involving the Municipality, in such capacity and committing
the offense in relation to office, conniving and confederating together
and mutually helping with each other, with deliberate intent, with intent
of (sic) gain, did then and there willfully, unlawfully and feloniously
demand money from Grace Superficial of L.S. Gamotin Construction,
which undertook the construction of the following government projects,
for the Municipality of Culasi, Province of Antique, to wit:
a) Rehabilitation of Tumao-San Juan Road;
b) Rehabilitation of Centro Norte-Buenavista Road; and
c) Rehabilitation of Bagacay-Buenavista Road
which projects amounted to TWO MILLION PESOS (P2,000,000.00),
Philippine Currency, which was sourced from the National Disaster
Coordinating Council and channeled to the Municipality of Culasi, under
condition that the final payments for said projects would not be released,
if said amounts would not be given, and consequently received the
amounts of FIFTEEN THOUSAND PESOS (P15,000.00) in cash and
ONE HUNDRED SIXTY-TWO THOUSAND FOUR HUNDRED
PESOS (P162,400.00) in LBP Check No. 3395274, thus accused Mayor
Linda Cadiao Palacios, directly or indirectly through her co-accused
Vic Venturanza, demanded or received money from a person, in
connection with contracts or transactions between the government,

wherein the public officer in her official capacity has to intervene under
the law.
CONTRARY TO LAW.[5]

On April 16, 2002, both accused voluntarily surrendered and, upon motion,
posted a reduced bail bond of P15,000.00 each.[6] They were subsequently
arraigned wherein they both pleaded Not Guilty.[7] Trial thereafter ensued.
During trial, the prosecution presented its sole witnessthe private
complainant herself, Grace M. Superficial (Superficial). Her testimony may be
summarized as follows:
For and on behalf of L.S. Gamotin, she (Superficial) took charge of the
collection of the unpaid billings of the municipality. [8] Prior to the full payment of
the municipalitys obligation, petitioner demanded money from her, under threat
that the final payment would not be released unless she complied. Acceding to
petitioners demand, she gave the formers husband P15,000.00.[9] Sometime in
January 1999, petitioner demanded from Superficial the full payment of her total
kickback which should be 10% of the project cost. Superficial thus
proposed that she would deliver a check in lieu of cash, to which petitioner
agreed.[10]
On January 25, 1999, petitioner gave to Neil Superficial, then an incumbent
councilor and the husband of private complainant, three checks [11] representing the
final payment for the construction projects. The following day, Venturanza picked
up the check promised by Superficial as payment for the 10% kickback. In
accordance with petitioners instruction, the check was made payable to
Venturanza in the amount of P162,400.00. The check was encashed by

Venturanza at the Land Bank of the Philippines (LBP), San Jose, Antique Branch,
which is about 90-100 kilometers away from Culasi; and the amount was received
by Venturanza.[12]It was Venturanza also who deposited the three checks,
representing the full payment of the project, to the account of Superficial. [13]
The prosecution likewise offered the following documentary evidence: 1)
Minutes of the Meeting of Pre-Qualification, [Bid] and Award Committee (PBAC)
held at the Municipality of Antique;[14] 2) Land Bank Check No. 3395274P dated
January 26,

1999

in the

amount

of P162,400.00;[15] 3) Complainants

Consolidated Sur-Reply;[16] and 4) Deposit Slip of the three LBP Checks

representing full payment of the project.[17]
The defense, on the other hand, presented the following witnesses: 1)
petitioner herself, 2) Venturanza, 3) Engr. Armand Cadigal, 4) petitioners
husband Emmanuel Palacios, 5) petitioners Executive Assistant Eugene de Los
Reyes, and 6) Atty. Rex Suiza Castillon. Their testimonies may be summarized
as follows:

Petitioner denied Superficials allegations. She insisted that she only dealt
with the owner of L.S. Gamotin, Engr. Leobardo S. Gamotin (Engr. Gamotin),
relative to the infrastructure projects; thus, she could have made the demand
directly from him and not from Superficial. Contrary to Superficials
contention, it was Engr. Gamotin himself who claimed payment through a demand
letter addressed to petitioner.[18] She added that she only met Superficial when
the latter received the checks representing the final payment. She further
testified that she never entrusted any highly sensitive matter to Venturanza since
her trusted employee was her chief of staff. She also averred that she was not the
only person responsible for the release of the checks since the vouchers also

required the signatures of the municipal treasurer, the municipal budget officer,
and the municipal accountant.[19] As far as Venturanza was concerned, she denied
knowledge of such transaction as he did not ask permission from her when he used
the vehicle of the municipality to go to San Jose.[20] Lastly, she claimed that the
filing of the case against her was politically motivated.[21]
Emmanuel Palacios likewise denied having received P15,000.00 from
Superficial. He claimed that he was financially stable, being a Forester; the
manager of a 200-hectare agricultural land and of a medium piggery establishment;
and the owner of a residential house valued at no less than P6 million, a parcel of
land and other properties.[22] He also claimed that the institution of the criminal
case was ill-motivated as Neil Superficial, in fact, initiated a complaint against him
for frustrated murder.[23]

Venturanza, for his part, admitted that he indeed received the check from
Superficial but denied that it was grease money. He claimed that the said
amount (P162,400.00) was received by him in the form of a loan. He explained
that he borrowed from Superficial P150,000.00 to finance his trip to Australia so
that he could attend the wedding of his nephew; and asked for an additional
amount for his expenses in processing his visa.[24] Venturanza, however, failed to
leave

forAustralia. Of

the

total

amount

of

his

loan,

he

allegedly

spent P15,000.00 in processing his visa. Venturanza stated that he was able to
repay the entire amount immediately because he obtained a loan from the Rural
Bank of Aklan, Pandan Branch, to pay the amount he used in applying for his visa.
He further testified that he was persuaded by the Superficials to campaign against
petitioner.[25]

On January 28, 2005, the Sandiganbayan rendered a decision convicting

both accused of the crime charged, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding accused
LINDA
CADIAO-PALACIOS
and
VICTOR
S.
VENTURANZA GUILTY beyond reasonable doubt of violation of
Section 3 (b) of Republic Act No. 3019, otherwise known as The AntiGraft and Corrupt Practices Act. Accordingly, in view of the attendant
mitigating circumstance of voluntary surrender of both accused, each of
them are hereby sentenced to (i) suffer an indeterminate sentence of
imprisonment for a period of six (6) years and one (1) month, as
minimum, to nine (9) years, as maximum; (ii) suffer all accessory
penalties consequent thereto; and (iii) pay the costs.
SO ORDERED.[26]

The Sandiganbayan concluded that the following circumstances established

the guilt of both petitioner and Venturanza: 1) that the municipality had
outstanding obligations with L.S. Gamotin for the construction of several public
works that were completed in 1998; 2) that petitioner was the person authorized to
effect the payment of said obligations which, in fact, she did; 3) that Venturanza
was a trusted employee of petitioner as he was in charge of the security of the
municipal buildings and personnel as well as the adjoining offices; 4) that
Venturanza received the three LBP checks representing the full payment to L.S.
Gamotin and the LBP check bearing the amount of P162,400.00; 5) that
Venturanza went to San Jose, Antique on January 26, 1999 to deposit the three
checks and encashed theP162,400.00 check; 6) that Venturanza did not receive the
above amount by virtue of a loan agreement with Superficial because there was no
evidence to prove it; 7) that Venturanza used the vehicle of the municipality to
encash the check in San Jose, Antique; and 8) that the amount of P15,000.00
initially given to Emmanuel Palacios and the P162,400.00 appearing on the check

corresponded to the 10% of the total project cost after deducting the 10% VAT
and P10,000.00 Engineering Supervision Fee.[27]
In arriving at this conclusion, the Sandiganbayan gave credence to the
testimony of the lone witness for the prosecution. It added that contrary to the
claim of the defense, no ill motive could be attributed to her in testifying against
petitioner and Venturanza. This is especially true in the case of the latter, as she
was related to him. In finding both accused guilty, the Sandiganbayan concluded
that, together, they conspired in committing the offense charged.
Aggrieved, petitioner and Venturanza separately appealed their conviction.
The latter petition was docketed as G.R. No. 168548 which was denied by this
Court in a Resolution dated September 26, 2005. The former, on the other hand, is
now before us, mainly challenging the legal and factual bases of the
Sandiganbayan decision.
The petition lacks merit.
Section 3 (b) of the Anti-Graft and Corrupt Practices Act

provides:
SEC. 3. Corrupt practices of public officers.
In addition to acts or omissions of public officers already penalized
by existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
x x x x
(b) Directly or indirectly requesting or
receiving any gift, present, share, percentage, or benefit, for himself or
for any other person, in connection with any contract or transaction

between the Government and any other party, wherein the public officer
in his official capacity has to intervene under the law.

To be convicted of violation of Section 3(b) of R.A. No. 3019, the

prosecution has the burden of proving the following elements: 1) the offender is a
public officer; 2) who requested or received a gift, a present, a share, a percentage,
or benefit; 3) on behalf of the offender or any other person; 4) in connection with a
contract or transaction with the government; 5) in which the public officer, in an
official capacity under the law, has the right to intervene. [28]
At the time material to the case, petitioner was the mayor of
the Municipality of Culasi, Antique. As mayor, her signature, both in the
vouchers and in the checks issued by the municipality, was necessary to effect
payment to contractors (for government projects). [29] Since the case involved the
collection by L.S. Gamotin of the municipalitys outstanding obligation to the
former, the right of petitioner to intervene in her official capacity is
undisputed. Therefore, elements 1, 4 and 5 of the offense are present. [30]
Petitioners refutation of her conviction focuses on the evidence
appreciated by the Sandiganbayan establishing that she demanded and received
grease money in connection with the transaction/contract.
Section 3(b) penalizes three distinct acts 1) demanding or requesting; 2)
receiving; or 3) demanding, requesting and receiving any gift, present, share,
percentage, or benefit for oneself or for any other person, in connection with any
contract or transaction between the government and any other party, wherein a
public officer in an official capacity has to intervene under the law. Each of
these modes of committing the offense is distinct and different from one another.
Proof of existence of any of them suffices to warrant conviction. [31]

The Sandiganbayan viewed the case as one, the resolution of which hinged
primarily on the matter of credibility. It found Superficial and her testimony
worthy of credence, that petitioner demanded grease money as a condition for
the release of the final payment to L.S. Gamotin. Aside from the demand made
by petitioner, the Sandiganbayan likewise concluded that, indeed, she received the
grease money through Venturanza. Therefore, petitioner was convicted both
for demanding and receiving grease money.
We find no cogent reason to disturb the aforesaid conclusions.
Well-settled is the rule that factual findings of the Sandiganbayan are
conclusive upon this Court[32] save in the following cases: 1) the conclusion is a
finding grounded entirely on speculation, surmise and conjecture; 2) the inference
made is manifestly an error or founded on a mistake; 3) there is grave abuse of
discretion; 4) the judgment is based on misapprehension of facts; 5) the findings of
fact are premised on a want of evidence and are contradicted by evidence on
record;[33] and 6) said findings of fact are conclusions without citation of specific
evidence on which they are based. [34] The instant case does not fall under any of
the foregoing exceptions.
The assessment of the credibility of a witness is primarily the function of a
trial court, which had the benefit of observing firsthand the demeanor or
deportment of the witness.[35] It is within the discretion of the Sandiganbayan to
weigh the evidence presented by the parties, as well as to accord full faith to those
it

regards

as

credible

and

reject

those

it

considers

perjurious

or

fabricated.[36] Between the Sandiganbayan and this Court, the former was

concededly in a better position to determine whether or not a witness was telling

the truth.[37]
Petitioner contends that it was improbable for her to have demanded the
grease money from Superficial, when she could have talked directly to the
contractor himself. She insists that Superficial was never a party to the
transaction and that Engr. Gamotin was the one who personally facilitated the full
payment of the municipalitys unpaid obligation.
This

contention

does

not

persuade. As

held

in Preclaro

v.

Sandiganbayan,[38] it is irrelevant from whom petitioner demanded her percentage

share of the project cost whether from the contractor himself or from the
latters representative. That petitioner made such a demand is all that is
required by Section 3(b) of R.A. No. 3019, and this element has been sufficiently
established by the testimony of Superficial. [39]
Notwithstanding her claim that the prosecution failed to present a special
power of attorney to show Superficials authority to represent L.S. Gamotin,
petitioner admitted that it was Superficial (or her husband) who received the three
checks representing full payment of the municipalitys obligation. Moreover,
although the checks were issued to L.S. Gamotin, the deposit slip showed that they
were deposited by Venturanza to the account of Superficial. Thus, contrary to
petitioners contention, the evidence clearly shows that Superficial was not a
stranger to the transaction between the municipality and L.S. Gamotin, for she, in
fact, played an important role in the receipt of the final payment of the
governments obligation. It was not, therefore, impossible for petitioner to have
demanded the grease money from Superficial, for after all, it was the latter
who received the proceeds of the final payment. This was bolstered by the fact

that theP162,400.00 check in the name of Venturanza was encashed by him on the
same day that he deposited the three checks. If indeed the amount given to
Venturanza was in the form of a loan to finance his trip to Australia, why was the
grant of the loan dependent on the receipt of the final payment to L.S.
Gamotin?[40] We cannot fathom how Superficial could lend money out of the
proceeds of the checks which admittedly were received by her not in her own
capacity but for and on behalf of another person (L.S. Gamotin). The only
plausible explanation is that the amount given to Venturanza was grease
money

taken

from

the

proceeds

of

the

checks

issued

by

the

municipality.
In holding that petitioner and Venturanza conspired in
committing the offense, we agree with the Sandiganbayan that the circumstances
enumerated above point to the culpability of the accused. Admittedly, there was
no direct evidence showing that petitioner demanded and received the money but
the testimony of Superficial, corroborated by the documentary evidence and the
admissions of the witnesses for the defense, sufficiently establishes that
Venturanza received the money upon orders of petitioner.
The sad reality in cases of this nature is that no witness can be called to
testify since no third party is ordinarily involved to witness the same. Normally,
the only persons present are the ones who made the demand and on whom the
demand was made.[41] In short, like bribery, the giver or briber is usually the only
one who can provide direct evidence of the commission of this crime. [42] While it is
true that entrapment has been a tried and tested method of trapping and capturing
felons in the act of committing clandestine crimes [43] like the instant case, we
cannot fault Superficial in not resorting to this method because of the position
occupied by petitioner during that time, as well as the power attached to her

office. This is especially true in the instant case as the person who made the
demand assigned another person to receive the grease money; and ordered that
the check be issued in the name of another person.
One final note. Proof beyond reasonable doubt does not mean evidence that
which produces absolute certainty; only moral certainty is required or that degree
of proof which produces conviction in an unprejudiced mind. [44] We find that
such requirement has been met in the instant case.
WHEREFORE, premises considered, the petition is hereby DENIED for
lack of merit. The Decision of the Sandiganbayan dated January 28, 2005 in
Criminal Case No. 27434 is AFFIRMED.
SO ORDERED.

13 PEOPLE V. HADJA JARMA LALLI y PURIH,

DECISION

CARPIO, J.:

The Case

This is a consolidated criminal case filed against the accused-appellants for the crimes
of Illegal Recruitment (Criminal Case No. 21930) and Trafficking in Persons
(Criminal Case No. 21908).

The Regional Trial Court (RTC) of Zamboanga City, in its Decision dated 29
November 2005 (RTC Decision),1 found accused-appellants guilty beyond reasonable
doubt of the crimes of Illegal Recruitment and Trafficking in Persons committed by a
syndicate, and sentenced each of the accused to suffer the penalty of life
imprisonment plus payment of fines and damages. On appeal, the Court of Appeals
(CA) in Cagayan de Oro, in its Decision dated 26 February 2010 (CA
Decision),2 affirmed in toto the RTC Decision. The accused-appellants appealed to
this Court by filing a Notice of Appeal3 in accordance with Section 3(c), Rule 122 of
the Rules of Court.

The Facts

The findings of fact of the RTC, which were affirmed in toto by the CA, are as
follows:

In the evening of June 3, 2005, while Lolita Sagadsad Plando, 23 years old,
single, was in Tumaga, Zamboanga City on her way to the house of her
grandfather, she met Ronnie MasionAringoy and Rachel Aringoy Caete.
Ronnie greeted Lolita, Oy, its good you are here
(oy, maayo kay dia ka). Rachel asked Lolita if she is interested to work in
Malaysia. xx x Lolita was interested so she gave her cellphone number to
Ronnie. After their conversation, Lolita proceeded to her grandfathers house.

xxx

On June 4, 2005, at about 7:00 oclock in the morning, Lolita received a text
message from Ronnie Aringoy inviting her to go to the latters house. At 7:30
in the morning, they met atTumaga on the road near the place where they had a
conversation the night before. Ronnie brought Lolita to the house of his sister
in Tumaga. Lolita inquired what job is available in Malaysia. Ronnie told her
that she will work as a restaurant entertainer. All that is needed is a passport.
She will be paid 500 Malaysian ringgits which is equivalent to P7,000.00 pesos
in Philippine currency. Lolita told Ronnie that she does not have a passport.
Ronnie said that they will look for a passport so she could leave immediately.
Lolita informed him that her younger sister, Marife Plando, has a passport.
Ronnie chided her for not telling him immediately. He told Lolita that she will
leave for Malaysia on June 6, 2005 and they will go to HadjaJarma Lalli who
will bring her to Malaysia. Ronnie sent a text message to Lalli but the latter
replied that she was not in her house. She was at the city proper.

On June 5, 2005, at about 6:00 oclock in the evening, Ronnie Aringoy and
Rachel Aringoy Caete arrived on board a tricycle driven by Ronnie at the
house where Lolita was staying at Southcom Village. Ronnie asked if Lolita
already had a passport. Lolita said that she will borrow her sisters passport.
Ronnie, Rachel and Lolita went to Buenavista where Lolitas other sister,
Gina Plando was staying. Her sister Marife Plando was there at that time. Lolita
asked Marife to let her use Marifes passport. Marife refused but Lolita got
the passport.Marife cried. Ronnie, Rachel and Lolita proceeded to Tumaga.
Ronnie, Rachel and Lolita went to the house of Hadja Jarma Lalli just two
hundred meters away from the house of Ronnie in Tumaga. Ronnie introduced
Lolita to Hadja Jarma, saying Ji, she is also interested in going to
Malaysia. Lolita handed a passport to Hadja Jarma telling her that it belongs
to her sister Marife Plando. Hadja Jarma told her it is not a problem because
they have a connection with the DFA (Department of Foreign Affairs)
and Marifes picture in the passport will be substituted with Lolitas picture.
Nestor Relampagos arrived driving an owner-type
jeep. Hadja Jarma introduced Nestor to Lolita as their financier who will
accompany them to Malaysia. x x x Lolita noticed three other women
in Hadja Jarmas house. They were Honey, about 20 years old; Michele, 19
years old, and another woman who is about 28 years old. The women said that
they are from Ipil, Sibugay Province. Ronnie told Lolita that she will have
many companions going to Malaysia to work. They will leave the next day,
June 6, and will meet at the wharf at 2:30 in the afternoon.

On June 6, 2005, Lolita went to Zamboanga City wharf at 2:00 oclock in the
afternoon bringing a bag containing her make-up and powder. She met at the
wharf Hadja Jarma Lalli, Ronnie Aringoy, Honey and Michele. Ronnie gave to
Lolita her boat ticket for the vessel M/V Mary Joy bound for Sandakan,
Malaysia; a passport in the name of Marife Plando but with Lolitas picture
on it, and P1,000.00 in cash. Hadja Jarma, Lolita, Honey, Michele and two
other women boarded the boat M/V Mary Joy bound for Sandakan.
Ronnie Aringoy did not go with them. He did not board the boat.
x x x After the boat sailed, Hadja Jarma Lalli and
Nestor Relampagos approached Lolita and her companions. Nestor told them
that they will have a good job in Malaysia as restaurant entertainers. They will
serve food to customers. They will not be harmed.

M/V Mary Joy arrived at the port of Sandakan, Malaysia at 10:00 oclock in
the morning of June 7, 2005. After passing through the immigration
office, Hadja Jarma Lalli, NestorRelampagos, Lolita, Honey, Michele and two
other women boarded a van for Kota Kinabalu. x x x At the hotel,
Nestor Relampagos introduced to Lolita and her companions a Chinese Malay
called Boss as their employer. After looking at the women, Boss
brought Lolita, Honey, Diane and Lorraine to a restaurant near the hotel. Diane
and Lorraine were also on baord M/V Mary Joy when it left the port
of Zamboanga for Sandakan on June 6, 2005. When they were already at the
restaurant, a Filipina woman working there said that the place is a prostitution
den and the women there are used as prostitutes. Lolita and her companions
went back to the hotel. They told Hadja Jarma and Nestor that they do not like
to work as prostitutes. x x x After about five minutes, another person called
boss arrived. x x x [T]hey were fetched by a van at about 7:00 oclock in
the evening and brought to Pipen Club owned by Boss Awa, a Malaysian.
At the club, they were told that they owe the club 2,000 ringgits each as
payment for the amount given by the club to Hadja Jarma Lalli and
NestorRelampagos. They will pay for the said amount by entertaining
customers. The customers will pay 300 ringgits for short time services of which
50 ringgits will go to the entertainer, and 500 ringgits for over night service of
which 100 ringgits will be given to the entertainer. Pipen Club is a big club in a
two-storey building. There were about 100 women working in the club, many
of them were Filipina women.

Lolita Plando was forced to work as entertainer at Pipen Club. She started
working at 8:30 in the evening of June 14, 2005. She was given the number 60
which was pinned on her. That night, she had her first customer who selected
her among the other women at the club. He was a very big man, about 32 years
old, a Chinese-Malay who looked like a wrestler. The man paid for short time
service at the counter. Lolita was given by the cashier a small pink paper. She
was instructed to keep it. A small yellow paper is given to the entertainer for
overnight services. The customer brought Lolita to a hotel. She did not like to
go with him but a boss at the club told her that she could not do anything.
At the hotel, the man poked a gun at Lolita and instructed her to undress. She
refused. The man boxed her on the side of her body. She could not bear the
pain. The man undressed her and had sexual intercourse with her. He had
sexual intercourse with her every fifteen minutes or four times in one hour.
When the customer went inside the comfort room, Lolita put on her clothes and
left. The customer followed her and wanted to bring her back to the hotel but
Lolita refused. At about 1:00 oclock in the morning of June 15, 2005, Lolita
was chosen by another customer, a tall dark man, about 40 years old. The
customer paid for an overnight service at the counter and brought Lolita to
Mariner Hotel which is far from Pipen Club. At the hotel, the man told Lolita to
undress. When she refused, the man brought her to the comfort room and
bumped her head on the wall. Lolita felt dizzy. The man opened the shower and
said that both of them will take a bath. Lolitas clothes got wet. She was
crying. The man undressed her and had sexual intercourse with her. They
stayed at the hotel until 11:00 oclock in the morning of June 15, 2005. The
customer used Lolita many times. He had sexual intercourse with her every
hour.

Lolita worked at Pipen Club from June 14 to July 8, 2005. Every night, a
customer used her. She had at least one customer or more a night, and at most,
she had around five customers a night. They all had sexual intercourse with her.
On July 9, 2005, Lolita was able to contact by cellphone at about 10:00
oclock in the morning her sister Janet Plando who is staying
atSipangkot Felda x x x. Janet is married to Said Abubakar, an Indonesian
national who is working as a driver in the factory. x x x Lolita told Janet that
she is in Labuan, Malaysia and beg Janet to save her because she was sold as a
prostitute. Janet told Lolita to wait because her husband will go to Pipen Club
to fetch Lolita at 9:00 oclock that evening of that day. x x xShe told Janet to

instruct her husband to ask for No. 60 at Pipen Club. x x x At 9:00 oclock in
the evening, Lolita was told by Daddy Richard, one of the bosses at the club,
that a customer requested for No. 60. The man was seated at one of the tables.
Lolita approached the man and said, good evening. The man asked
her is she is the sister of Janet Plando. Lolita replied that she is, and asked the
man if he is the husband of her sister. He said, yes. The man had already
paid at the counter. He stood up and left the place. Lolita got her wallet and
followed him. x x x Lolita told her sister about her ordeal. She stayed at her
sisters house until July 22, 2005. On July 21, 2005 at 7:00 oclock in the
evening, a policeman went to her sisters house and asked if there is a woman
staying in the house without a passport. Her sister told the policeman that she
will send Lolita home on July 22. At dawn on July 22, Lolita and her brotherin-law took a taxi from Sipangkot Felda to Mananamblas where Lolita will
board a speedboat to Sibuto, Tawi-Tawi. x x x

Upon arrival in Zamboanga City on July 24, 2005, Lolita went directly to the
house of her eldest sister Alejandra Plando Maywila at Sta.
Catalina, Zamboanga City. She left her things at her sisters house and
immediately went to the sister of Ronnie Aringoy in Tumaga. Ronnie was not
there. She asked Russel, niece of Ronnie, to call for the latter. Ronnie arrived
and said to her, so you are here, you arrived already. He said he is not
involved in what happened to her. Lolita asked Ronnie to accompany her to the
house of Nestor Relampagosbecause she has something to get from him.
Ronnie refused. He told Lolita not to let them know that she had already
arrived from Malaysia.

Lolita was advised to file a complaint with the police regarding her ordeal in
Malaysia. On August 2, 2005, at past 9:00 oclock in the morning,
Lolita Plando went to Zamboanga Police Office at Gov. Lim Avenue to file her
complaint. x x x

In her Counter-Affidavit (Exh. 1; 1-ALalli), Hadja Jarma Lalli admitted that she met Lolita Plando on June 6, 2005
on board M/V Mary Joy while the said vessel was at sea on its way to
Sandakan, Malaysia. The meeting was purely coincidental. By coincidence

also, Hadja Jarma, Nestor Relampagos and Lolita Plando boarded the same van
for Kota Kinabalu, Malaysia. Upon arrival, they parted ways. They did not see
each other anymore at Kota Kinabalu, Malaysia. She did not know what
happened to them. She went to Kota Kinabalu to visit his son-in-law. She
denied having recruited Lolita Plando for employment abroad (Exh. 1;
1-A). x x x

In his Counter-Affidavit (Exh. 1-Aringoy), Ronnie Aringoy affirmed that

he personally knows Lolita Plando since she was a teenager and he knows for a
fact that her name isCristine and not Marife as she purports it to appear.
Sometime in the first week of June 2005, Lolita borrowed P1,000.00 from
Ronnie because she wanted to go to Malaysia to work as a guest relation officer
(GRO). Ronnie lent her P1,000.00. He told her that he knows a
certain Hadja Jarma Lalli, distant neighbor, who frequents to Malaysia and with
whom she can ask pertinent information on job opportunities. The entries in
Philippine Passport No. MM401136 issued to Hadja Jarma Lalli on January 29,
2004 (Exh. 2; 2-A to 2-Q) showed that she traveled to Malaysia
no less than nine (9) times within the period from March 2004 to June 2005.

xxx

Nora Mae Adling, ticketing clerk of Aleson Shipping Lines, owner of the
vessel M/V Mary Joy 2 plying Zamboanga City to Sandakan, Malaysia route
and of M/V Kristel Jane 3, testified that Hadja Jarma Lalli bought passenger
tickets for her travel to Sandakan, not only for herself but also for other women
passengers.

xxx

Ronnie Aringoy submitted the Affidavit of his witness

Rachel Caete (Exh. 2) and the Joint Affidavits of
witnesses Mercedita Salazar and Estrella Galgan. Rachel Canete declared that
Lolita Plando whom she knows as Cristine Plando worked as a GRO (guest
relation officer) and massage attendant at Magic 2 Videoke and
Massage Parlor, that Lolita Plando has four children sired by different men; and
that she knows for a fact that Lolita Plando has been going to and from
Malaysia to work in bars. When she testified in court, Rachel did not present
other evidence to substantiate her allegations. Mercedita Salazar
and Estrella Galgan declared in their Joint Affidavit that Lolita Plando who is
known to them as Marife Plandowas their co-worker as massage attendant and
GRO (guest relation officer) at Magic 2 Massage Parlor and Karaoke bar where
she used the names Gina Plando and Cristine Plando. She worked in the said
establishment for nine months from February to October 2002. She has four
children from four different men. No other evidence was submitted in court to
prove their assertions.4

The Decision of the Trial Court

The Regional Trial Court rendered its Decision on 29 November 2005, with its
dispositive portion declaring:

WHEREFORE, the Court finds accused HADJA JARMA LALLI y PURIH

and RONNIE ARINGOY y MASION GUILTY beyond reasonable doubt in

Criminal Case No. 21908 of the Crime of Trafficking in Persons defined in

Section 3(a) and penalized under Section 10(c) in relation to Sections 4(a) and
6(c) of Republic Act No. 9208 known as the Anti-Trafficking in Persons Act
of 2003 and in Criminal Case No. 21930 of the crime of Illegal Recruitment
defined in Section 6 and penalized under Section 7(b) of Republic Act No.
8042 known as the Migrant Workers and Overseas Filipinos Act of 1995
and SENTENCES each of said accused:

1. In Criminal Case No. 21908, to suffer the penalty of LIFE IMPRISONMENT

and to pay a fine of P2,000,000.00 pesos;

2. In Criminal Case No. 21930, to suffer the penalty of LIFE IMPRISONMENT

and to pay a fine of P500,000.00 pesos;
3. To pay the offended party Lolita Plando y Sagadsad, jointly and severally, the
sum of P50,000.00 as moral damages, and P50,000.00 as exemplary damages;
and
4. To pay the costs.
SO ORDERED.5

The trial court did not find credible the denials of the accused-appellants over the
candid, positive and convincing testimony of complainant Lolita Plando (Lolita). The
accused, likewise, tried to prove that Lolita was a Guest Relations Officer (GRO) in
the Philippines with four children fathered by four different men. However, the trial
court found these allegations irrelevant and immaterial to the criminal prosecution.
These circumstances, even if true, would not exempt or mitigate the criminal liability
of the accused. The trial court found that the accused, without a POEA license,
conspired in recruiting Lolita and trafficking her as a prostitute, resulting in crimes
committed by a syndicate.6 The trial court did not pronounce the liability of accusedat-large Nestor Relampagos (Relampagos) because jurisdiction was not acquired over
his person.

The Decision of the Court of Appeals

On 26 February 2010, the Court of Appeals affirmed in toto the RTC Decision and
found accused-appellants guilty beyond reasonable doubt of the crimes of Illegal
Recruitment and Trafficking in Persons.
The Issue

The only issue in this case is whether the Court of Appeals committed a reversible
error in affirming in toto the RTC Decision.

The Ruling of this Court

We dismiss the appeal for lack of merit.

We modify and increase the payment of damages in the crime of Trafficking in

Persons from P50,000 to P500,000 for moral damages and P50,000 to P100,000 for
exemplary damages.

Grounds for Appeal

In his Appeal Brief,7 Ronnie Aringoy (Aringoy) admits that he referred Lolita to a
certain Hadja Jarma Lalli (Lalli), Aringoys neighbor who frequents Malaysia and
from whom Lolita could ask pertinent information on job
opportunities.8 Aringoy claims that he learned later that Lolita left for Malaysia. 9 He
denies knowing Relampagos to whom Lolita paid P28,000 as placement fee for
finding her work in Malaysia.10

Aringoy presented three witnesses: his niece

Rachel Aringoy Caete (Rachel), Mercedita Salazar (Mercedita),
and Estrella Galgan (Estrella). In her testimony, Rachel declared that: (1) Lolita is a
GRO and Massage Attendant at Magic 2 Videoke and Massage Parlor; (2) Lolita has
four children sired by different men; and (3) Lolita has been travelling to Malaysia to
work in bars. Mercedita and Estrella, on the other hand, declared in their testimonies
that Lolita was their co-worker as Massage Attendant and GRO in Magic 2
Massage Parlor and Karaoke Bar from February to October 2002.11
Aringoy assailed the credibility of Lolitas testimony because of inconsistencies
with regard to: (1) Lolitas grandfathers status and name; (2) the persons (Ronnie
and Rachel) who approached Lolita to talk about the job opportunity in Malaysia; (3)
certain statements in Lolitas testimony that were not alleged in her Sworn
Statement; (4) payment of placement fee of 28,000; and (5) names of the other
female recruits who were with Lolita in the boat going to Sandakan and Kota
Kinabalu.12 Aringoylikewise claims that he was never included in the initial complaint
filed by Lolita, and Lolitas statements about her meetings with
him, Lalli and Relampagos on 3, 4, 5 and 6 June 2005 were not corroborated by any
witness.13

On the other hand, in her Appeal Brief,14 Lalli claims that she simply met Lolita on 6
June 2005 on board the ship M/V Mary Joy bound for Sandakan,
Malaysia.15 Lallidenies having met Lolita prior to their meeting on board M/V Mary
Joy.16 Lalli claims she was going to Malaysia to visit her daughter and son-in-law who
was a Malaysian national.17 Lalli further claims that she only spoke to Lolita aboard
the ship for idle conversation to pass away the time.18 In this conversation, she learned
that Lolita was with a party of girls accompanied by Relampagos, and the latter was
bringing them to Malaysia to work as sales ladies.19 Lalli admits that
Lolita, Relampagos and the other girls rode in Lallis van in Sandakan, driven by a
friend of Lallis son-in-law.20 They all rode together because Relampagos talked to
the van driver, requesting if he and his party of girls could board the van and pay their
fare when they reach the city proper of Kota Kinabalu.21 Lalli boarded the van with
Lolita, Relampagos and their companions.22 Upon reaching her destination, Lalli got
off the van, leaving Lolita, Relampagos and their other companions to continue their
journey towards the city proper of Kota Kinabalu.23 After spending several days in
Malaysia with her daughter and son-in-law, Lalli went to Brunei to visit a cousin on
12 June 2005, and headed back to Malaysia on 14 June 2005.24

Lalli assails the credibility of Lolita due to inconsistencies in her testimony with
regard to: (1) Lolita not being in Southcom Village on 5 June 2005 at 6:00 p.m., as
she claimed, but in Buenavista Village; and (2) Lolitas claim
that Lalli and Relampagos on 12 June 2005 brought the girls to Labuan, when in
fact, Lalli was already in Brunei on 12 June 2005, as evidenced by the stamp in her
passport.25
Credibility of Testimonies

Both Aringoy and Lalli, in their respective Appeal Briefs, assail the testimony of
Lolita due to its alleged inconsistency on immaterial facts, such as the status of
Lolitas grandfather, the name of the village she was in, the date she was brought to
Labuan, Malaysia, and the like. In a long line of cases, the Court has ruled that
inconsistencies pointed out by the accused in the testimony of prosecution witnesses
relating to minor details do not destroy the credibility of witnesses. 26 On the contrary,
they indicate that the witnesses were telling the truth and not previously rehearsed. 27

The clear material inconsistency in this case, however, lies in the testimonies of
accused Aringoy and Lalli. Aringoy admitted that he referred Lolita to a
certain Hadja JarmaLalli, his neighbor who frequents Malaysia and with whom Lolita
could ask pertinent information on job opportunities.28 Lalli, on the other hand, denies
having met Lolita prior to their meeting on board M/V Mary Joy on 6 June
2005,29 and claims that her meeting with Lolita was purely coincidental. 30 Lalli admits
that, even if she metRelampagos, Lolita and their companions only on that day on
board M/V Mary Joy, she allowed these people to ride with her in Malaysia using the
van driven by the friend of Lallis son-in-law.31 Lastly, Lalli claims that she often
goes to Malaysia to visit her daughter and son-in-law.32 However, this does not
explain why Lalli purchased boat tickets, not only for herself, but for the other women
passengers going to Malaysia.33 From March 2004 to June 2005, Lalli traveled to
Malaysia no less than nine (9) times.34 Nora Mae Adling, ticketing clerk
of Aleson Shipping Lines, owner of the vessel M/V Mary Joy 2
plying Zamboanga City to Sandakan, Malaysia route and of M/VKristel Jane 3,
testified in open court that Hadja Jarma Lalli bought passenger tickets for her travel
to Sandakan, not only for herself but also for other women passengers.35 Clearly, it
is not Lolitas testimony that is materially inconsistent, but the testimonies
of Lalli and Aringoy.

Aringoy presented his witnesses Rachel, Mercedita and Estrella to impeach the
credibility of Lolita by alleging that Lolita was a Massage Attendant and GRO in a
massageparlor and videoke bar. His witness Rachel further declared that Lolita, at the
young age of 23 years, already had four children sired by four different men, and had
been previously travelling to Malaysia to work in bars. These bare allegations were
not supported by any other evidence. Assuming, for the sake of argument, that Lolita
previously worked in a Karaoke Bar and Massage Parlor and that she had four
children from different men, such facts cannot constitute exempting or mitigating
circumstances to relieve the accused from their criminal liabilities. It does not change
the fact that the accused recruited Lolita to work in Malaysia without the requisite
POEA license, thus constituting the crime of illegal recruitment. Worse, the accused
deceived her by saying that her work in Malaysia would be as restaurant entertainer,
when in fact, Lolita would be working as a prostitute, thus, constituting the crime of
trafficking.
The facts found by the trial court, as affirmed in toto by the Court of Appeals, are, as a
general rule, conclusive upon this Court, in the absence of any showing of grave abuse
of discretion.36 The Court, however, may determine the factual milieu of cases or
controversies under specific circumstances, such as:

(1) when the inference made is manifestly mistaken, absurd or

impossible;
(2) when there is a grave abuse of discretion;
(3) when the finding is grounded entirely on speculations, surmises or
conjectures;
(4) when the judgment of the Court of Appeals is based on
misapprehension of facts;
(5) when the findings of fact are conflicting;
(6) when the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee;
(7) when the findings of the Court of Appeals are contrary to those of
the trial court;
(8) when the findings of fact are conclusions without citation of specific
evidence on which they are based;
(9) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties and which, if properly considered,
would justify a different conclusion; and

(10) when the findings of fact of the Court of Appeals are premised on
the absence of evidence and are contradicted by the evidence on
record.37

In this case, none of these exceptions to the general rule on conclusiveness of facts are
applicable. The Court gives weight and respect to the trial courts findings in
criminal prosecution because the latter is in a better position to decide the question,
having heard the witnesses in person and observed their deportment and manner of
testifying during the trial.38 For this reason, the Court adopts the findings of fact of the
trial court, as affirmed in toto by the Court of Appeals, there being no grave abuse of
discretion on the part of the lower courts.

Criminal Case No. 21930 (Illegal Recruitment)

Section 6 of Republic Act No. 8042 (RA 8042) defines illegal recruitment, as follows:

[I]llegal recruitment shall mean any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring, or procuring workers and
includes referring, contact services, promising or advertising for employment
abroad, whether for profit or not, when undertaken by a non-licensee or
non-holder of authority contemplated under Article 13(f) of Presidential
Decree No. 442, as amended, otherwise known as the Labor Code of the
Philippines.

xxx

Illegal recruitment when committed by a syndicate or in large scale shall be

considered an offense involving economic sabotage.

xxx

Illegal recruitment is deemed committed by a syndicate if carried out by a

group of three (3) or more persons conspiring or confederating with one
another. (Emphasis supplied)
Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as
the Labor Code of the Philippines, defines authority as follows:

Authority means a document issued by the Department

of Labor authorizing a person or association to engage in recruitment and
placement activities as a private recruitment entity.

Section 7 of RA 8042 provides for the penalty of illegal recruitment committed by a

syndicate (which constitutes economic sabotage), as follows:

(b) The penalty of life imprisonment and a fine of not less than Five hundred
thousand pesos (P500,000.00) nor more than One million pesos
(P1,000,000.00) shall be imposed if illegal recruitment constitutes economic
sabotage as defined therein.

It is clear that a person or entity engaged in recruitment and placement activities

without the requisite authority from the Department of Labor and Employment
(DOLE), whether for profit or not, is engaged in illegal recruitment. 39 The Philippine
Overseas Employment Administration (POEA), an agency under DOLE created by
Executive Order No. 797 to take over the duties of the Overseas Employment
Development Board, issues the authority to recruit under the Labor Code. The
commission of illegal recruitment by three or more persons conspiring or
confederating with one another is deemed committed by a syndicate and constitutes
economic sabotage,40 for which the penalty of life imprisonment and a fine of not less
than 500,000 but not more than 1,000,000 shall be imposed.41

The penalties in Section 7 of RA 8042 have already been amended by Section 6 of

Republic Act No. 10022, and have been increased to a fine of not less than
2,000,000 but not more than 5,000,000. However, since the crime was committed
in 2005, we shall apply the penalties in the old law, RA 8042.

In People v. Gallo,42 the Court enumerated the elements of syndicated illegal

recruitment, to wit:

1. the offender undertakes either any activity within the meaning of recruitment
and placement defined under Article 13(b), or any of the prohibited practices
enumerated under Art. 34 of the Labor Code;
2. he has no valid license or authority required by law to enable one to lawfully
engage in recruitment and placement of workers; and

3. the illegal recruitment is committed by a group of three (3) or more persons

conspiring or confederating with one another.43
Article 13(b) of the Labor Code of the Philippines defines recruitment and placement
as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or
procuring workers, and includes referrals, contract services, promising or advertising
for employment, locally or abroad, whether for profit or not, provided, that any person
or entity which, in any manner, offers or promises for a fee, employment to two or
more persons shall be deemed engaged in recruitment and placement.
Clearly, given the broad definition of recruitment and placement, even the mere act of
referring someone for placement abroad can be considered recruitment. Such act of
referral, in connivance with someone without the requisite authority or POEA license,
constitutes illegal recruitment. In its simplest terms, illegal recruitment is committed
by persons who, without authority from the government, give the impression that they
have the power to send workers abroad for employment purposes. 44
In this case, the trial court, as affirmed by the appellate court,
found Lalli, Aringoy and Relampagos to have conspired and confederated with one

another to recruit and place Lolita for work in Malaysia, without a POEA license. The
three elements of syndicated illegal recruitment are present in this case, in particular:
(1) the accused have no valid license or authority required by law to enable them to
lawfully engage in the recruitment and placement of workers; (2) the accused engaged
in this activity of recruitment and placement by actually recruiting, deploying and
transporting Lolita to Malaysia; and (3) illegal recruitment was committed by three
persons (Aringoy, Lalliand Relampagos), conspiring and confederating with one
another.

Aringoy claims and admits that he only referred Lolita to Lalli for job opportunities to
Malaysia. Such act of referring, whether for profit or not, in connivance with someone
without a POEA license, is already considered illegal recruitment, given the broad
definition of recruitment and placement in the Labor Code.
Lalli, on the other hand, completely denies any involvement in the recruitment and
placement of Lolita to Malaysia, and claims she only met Lolita for the first time by
coincidence on board the ship M/V Mary Joy. Lallis denial does not deserve
credence because it completely conflicts with the testimony of Aringoy who claims he
referred Lolita to Lalli who had knowledge of the job opportunities in Malaysia.

The conflicting testimonies of Lalli and Aringoy on material facts give doubt to the
truth and veracity of their stories, and strengthens the credibility of the testimony of
Lolita, despite allegations of irrelevant inconsistencies.

No improper motive could be imputed to Lolita to show that she would falsely testify
against the accused. The absence of evidence as to an improper motive entitles
Lolitas testimony to full faith and credit.45
Aringoy claims that no conspiracy existed in illegal recruitment, as he denies even
knowing Relampagos, who is currently at-large. Lalli denies any involvement in the
illegal recruitment, and claims that she only met Relampagos through Lolita on board
the ship M/V Mary Joy on 6 June 2005, and learned that Relampagos was bringing
Lolita and their other girl companions to Malaysia to work as sales ladies.

Under Article 8 of the Revised Penal Code, there is conspiracy when two or more
persons come to an agreement concerning the commission of a felony and decide to
commit it.

In People v. Lago,46 the Court discussed conspiracy in this wise:

The elements of conspiracy are the following: (1) two or more persons came to
an agreement, (2) the agreement concerned the commission of a felony, and (3)
the execution of the felony was decided upon. Proof of the conspiracy need not
be based on direct evidence, because it may be inferred from the parties
conduct indicating a common understanding among themselves with respect to
the commission of the crime. Neither is it necessary to show that two or more
persons met together and entered into an explicit agreement setting out the
details of an unlawful scheme or objective to be carried out. The conspiracy
may be deduced from the mode or manner in which the crime was perpetrated;
it may also be inferred from the acts of the accused evincing a joint or common
purpose and design, concerted action and community of interest. 47

In this case, Lolita would not have been able to go to Malaysia if not for the concerted
efforts of Aringoy, Lalli and Relampagos. First, it was Aringoy who knew Lolita,
since Aringoy was a neighbor of Lolitas grandfather. It was Aringoy who referred
Lolita to Lalli, a fact clearly admitted by Aringoy. Second, Lolita would not have
been able to go to Malaysia if Lalli had not purchased Lolitas boat ticket to
Malaysia. This fact can be deduced from the testimony of Nora Mae Adling (Nora),
ticketing clerk of Aleson Shipping Lines, owner of the vessel M/V Mary Joy 2
plying Zamboanga City to Sandakan, Malaysia route and of M/V Kristel Jane 3. Nora
testified in open court that Hadja Jarma Lalli bought passenger tickets for her travel
to Sandakan, not only for herself but also for other women
passengers. Lallis claim that she only goes to Malaysia to visit her daughter and
son-in-law does not explain the fact why she bought the boat tickets of the other
women passengers going to Malaysia. In fact, it appears strange that Lalli visited
Malaysia nine (9) times in a span of one year and three months (March 2004 to June
2005) just to visit her daughter and son-in-law. In Malaysia, it was Relampagos who
introduced Lolita and her companions to a Chinese Malay called Boss as their
first employer. When Lolita and her companions went back to the hotel to

tell Relampagos and Lalli that they did not want to work as
prostitutes, Relampagos brought Lolita and the girls on board a van
to Sangawan China Labuan, where they stayed in a room for one night. The next day,
they were picked up by a van and brought to Pipen Club, where Lolita and her
companions worked as prostitutes. To date, accused Relampagos is at large and has
not been brought under the jurisdiction of the courts for his crimes.
Flight in criminal law is the evading of the course of justice by voluntarily
withdrawing oneself in order to avoid arrest or detention or the institution or
continuance of criminal proceedings.48 The unexplained flight of an accused person
may as a general rule be taken into consideration as evidence having a tendency to
establish his guilt.49Clearly, in this case, the flight of accused Relampagos, who is still
at-large, shows an indication of guilt in the crimes he has been charged.
It is clear that through the concerted efforts of Aringoy, Lalli and Relampagos, Lolita
was recruited and deployed to Malaysia to work as a prostitute. Such conspiracy
among Aringoy, Lalli and Relampagos could be deduced from the manner in which
the crime was perpetrated each of the accused played a pivotal role in perpetrating
the crime of illegal recruitment, and evinced a joint common purpose and design,
concerted action and community of interest.

For these reasons, this Court affirms the CA Decision, affirming the RTC Decision,
declaring accused Ronnie Aringoy y Masion and Hadja Jarma Lalli y Purih guilty
beyond reasonable doubt of the crime of illegal recruitment committed by a syndicate
in Criminal Case No. 21930, with a penalty of life imprisonment and a fine of
500,000 imposed on each of the accused.

Criminal Case No. 21908 (Trafficking in Persons)

Section 3(a) of Republic Act No. 9208 (RA 9208), otherwise known as the AntiTrafficking in Persons Act of 2003, defines Trafficking in Persons, as follows:

Trafficking in Persons refers to the recruitment, transportation, transfer

or harboring, or receipt of persons with or without the victims consent or

knowledge, within or across national borders by means of threat or use of

force, or other forms of coercion, abduction, fraud, deception, abuse of power
or of position, taking advantage of the vulnerability of the person, or, the giving
or receiving of payments or benefits to achieve the consent of a person having
control over another person for the purpose of exploitation which includes at a
minimum, the exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal or sale
of organs. x x x (Emphasis supplied)

Section 4 of RA 9208 enumerates the prohibited acts of Trafficking in Persons, one of

which is:

(a) To recruit, transport, transfer, harbor, provide, or receive a person by any

means, including those done under the pretext of domestic or overseas
employment or training or apprenticeship, for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery, involuntary servitude
or debt bondage.

The crime of Trafficking in Persons is qualified when committed by a syndicate, as

provided in Section 6(c) of RA 9208:

(c) When the crime is committed by a syndicate, or in large scale. Trafficking is

deemed committed by a syndicate if carried out by a group of three (3) or more
persons conspiring or confederating with one another. It is deemed committed
in large scale if committed against three (3) or more persons, individually or as
a group.
Section 10(c) of RA 9208 provides for the penalty of qualified trafficking:

(c) Any person found guilty of qualified trafficking under Section 6 shall suffer
the penalty of life imprisonment and a fine of not less than Two million pesos
(P2,000,000.00) but not more than Five million pesos (P5,000,000.00).

The Anti-Trafficking in Persons Act is a new law passed last 26 May 2003, designed
to criminalize the act of trafficking in persons for prostitution, sexual
exploitation,foced labor and slavery, among others.

In this case, Aringoy claims that he cannot be convicted of the crime of Trafficking in
Persons because he was not part of the group that transported Lolita from the
Philippines to Malaysia on board the ship M/V Mary Joy. In addition, he presented his
niece, Rachel, as witness to testify that Lolita had been travelling to Malaysia to work
in bars. On the other hand, Lalli denies any involvement in the recruitment and
trafficking of Lolita, claiming she only met Lolita for the first time on board M/V
Mary Joy going to Malaysia.

The testimony of Aringoys niece, Rachel, that Lolita had been travelling to
Malaysia to work in bars cannot be given credence. Lolita did not even have a
passport to go to Malaysia and had to use her sisters passport
when Aringoy, Lalli and Relampagos first recruited her. It is questionable how she
could have been travelling to Malaysia previously without a passport, as Rachel
claims. Moreover, even if it is true that Lolita had been travelling to Malaysia to work
in bars, the crime of Trafficking in Persons can exist even with the victims consent
or knowledge under Section 3(a) of RA 9208.

Trafficking in Persons under Sections 3(a) and 4 of RA 9208 is not only limited to
transportation of victims, but also includes the act of recruitment of victims for
trafficking. In this case, since it has been sufficiently proven beyond reasonable doubt,
as discussed in Criminal Case No. 21930, that all the three accused
(Aringoy, Lalliand Relampagos) conspired and confederated with one another to

illegally recruit Lolita to become a prostitute in Malaysia, it follows that they are also
guilty beyond reasonable doubt of the crime of Qualified Trafficking in Persons
committed by a syndicate under RA 9208 because the crime of recruitment for
prostitution also constitutes trafficking.

When an act or acts violate two or more different laws and constitute two different
offenses, a prosecution under one will not bar a prosecution under the other. 50 The
constitutional right against double jeopardy only applies to risk of punishment twice
for the same offense, or for an act punished by a law and an ordinance.51 The
prohibition on double jeopardy does not apply to an act or series of acts constituting
different offenses.

DAMAGES

Lolita claimed actual damages of 28,000, which she allegedly paid to the accused as
placement fee for the work of restaurant entertainer in Malaysia. The trial court did
not award this amount to Lolita. We agree and affirm the trial courts non-award due
to Lolitas inconsistent statements on the payment of placement fee. In her sworn
statement, Lolita alleged that she paid 28,000 as placement fee to Lalli. 52 On crossexamination, however, she admitted that she never paid 28,000 to the accused. 53

We, however, modify and increase the payment of damages in the crime of
Trafficking in Persons from 50,000 to 500,000 as moral damages and 50,000 to
100,000 as exemplary damages.

The Civil Code describes moral damages in Article 2217:

Art. 2217. Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary computation,

moral damages may be recovered if they are the proximate result of the
defendants wrongful act for omission.

Exemplary damages, on the other hand, are awarded in addition to the payment of
moral damages, by way of example or correction for the public good, as stated in the
Civil Code:

Art. 2229. Exemplary or corrective damages are imposed, by way of example

or correction for the public good, in addition to the moral, temperate, liquidated
or compensatory damages.

Art. 2230. In criminal offenses, exemplary damages as a part of the civil

liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines
and shall be paid to the offended party.

The payment of 500,000 as moral damages and 100,000 as exemplary damages for
the crime of Trafficking in Persons as a Prostitute finds basis in Article 2219 of the
Civil Code, which states:

Art. 2219. Moral damages may be recovered in the following and analogous
cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and
35.
The parents of the female seduced, abducted, raped, or abused, referred to in
No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the
action mentioned in No. 9 of this article, in the order named.

The criminal case of Trafficking in Persons as a Prostitute is an analogous case to the

crimes of seduction, abduction, rape, or other lascivious acts. In fact, it is worse. To
be trafficked as a prostitute without ones consent and to be sexually violated four to
five times a day by different strangers is horrendous and atrocious. There is no doubt
that Lolita experienced physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, and social humiliation when
she was trafficked as a prostitute in Malaysia. Since the crime of Trafficking in
Persons was aggravated, being committed by a syndicate, the award of exemplary
damages is likewise justified.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals dated 26
February 2010, affirming the Decision of the Regional Trial Court of Zamboanga City
dated 29 November 2005, finding accused Lalli and Aringoy guilty beyond reasonable
doubt of the crimes of Illegal Recruitment and Trafficking in Persons committed by a
syndicate, with the following MODIFICATIONS:

1. In Criminal Case No. 21908, each of the accused is sentenced to suffer the
penalty of LIFE IMPRISONMENT and to pay a fine of 2,000,000;

2. In Criminal Case No. 21930, each of the accused is sentenced to suffer the
penalty of LIFE IMPRISONMENT and to pay a fine of 500,000;

3. Each of the accused is ordered to pay the offended party

Lolita Plando y Sagadsad, jointly and severally, the sum of 500,000 as moral
damages, and 100,000 as exemplary damages for the crime of Trafficking in
Persons; and to pay the costs.

The Court cannot pronounce the liability of accused-at-large Nestor Relampagos as

jurisdiction over his person has not been acquired.

DISINI V SECRETARY OF JUSTICE

G.R. No. 203335

February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,

JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, Respondents.
x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN
MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI
Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO
P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon
Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENESCASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and
GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICEDEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE

PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE

NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alterego of President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity
as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M.
REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of
Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of
Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN,
Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ,
and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF
THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department
of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR
R. ROJAS, Director of the National Bureau of Investigation, D/GEN.
NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government,Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA.
MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN
JEREMIAH D. QUAN (all of the Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,

HONORABLE MANUEL ROXAS in his capacity as Secretary of the

Department of Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National Bureau of Investigation (all
of the Executive Department of Government),Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),
PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND
RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE
JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-tora10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL
OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING
UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO
THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175,Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR
AND LOCAL GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A.
ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P.
MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;

BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.

REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH
S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA,
JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO
E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of
the Republic of the Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary
of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as
Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National
Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his
capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as
President of the Republic of the Philippines; HON. PAQUITO N. OCHOA,
JR., in his official capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive Director, Information and
Communications Technology Office; NONNATUS CAESAR R. ROJAS, in
his official capacity as Director of the National Bureau of Investigation; and
DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official capacity as
Chief of the Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by
BENNY D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN
THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILAPHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA ORALES,
JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA
A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO
VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS,
KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY
OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE,
THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER
MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act

(R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using
his laptop or computer, a person can connect to the internet, a system that links
him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information
that he needs for research, study, amusement, upliftment, or pure
curiosity;
2. Post billboard-like notices or messages, including pictures and videos,
for the general public or for special audiences like associates, classmates,
or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and
payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail
address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since
it could not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them can, for instance,
avail himself of the system to unjustly ruin the reputation of another or bully the
latter by posting defamatory statements against him that people can read.
And because linking with the internet opens up a user to communications from
others, the ill-motivated can use the cyberspace for committing theft by hacking
into or surreptitiously accessing his bank account or credit card or defrauding him
through false representations. The wicked can use the cyberspace, too, for illicit
trafficking in sex or for exposing to pornography guileless children who have
access to the internet. For this reason, the government has a legitimate right to
regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause
havoc to the computer systems and networks of indispensable or highly useful
institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or virtual
dynamites that destroy those computer systems, networks, programs, and
memories. The government certainly has the duty and the right to prevent these
tomfooleries from happening and punish their perpetrators, hence the
Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order
into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary restraining
order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for their
commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of

Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC)
and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC);
and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361,
and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data
and systems:

(1) Illegal Access. The access to the whole or any part of a computer system
without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and
should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to prove
that the classification is necessary to achieve a compelling state interest and that
it is the least restrictive means to protect such interest.2 Later, the strict scrutiny
standard was used to assess the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights, as expansion from
its earlier applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a condemnable act
accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target systems security and report back to the
owners the vulnerabilities they found in it and give instructions for how these can
be remedied. Ethical hackers are the equivalent of independent auditors who
come into an organization to verify its bookkeeping records.5
Besides, a clients engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and the
systems to be tested. This is referred to as the "get out of jail free card."6Since
the ethical hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data
and systems:
xxxx
(3) Data Interference. The intentional or reckless alteration, damaging, deletion
or deterioration of computer data, electronic document, or electronic data
message, without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally
subject to state regulation, may not be achieved by means that unnecessarily
sweep its subject broadly, thereby invading the area of protected freedoms.7 But
Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes
what essentially is a form of vandalism,8 the act of willfully destroying without right
the things that belong to others, in this case their computer data, electronic
document, or electronic data message. Such act has no connection to
guaranteed freedoms. There is no freedom to destroy other peoples computer
systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect,
an in terrorem effect9 or the fear of possible prosecution that hangs on the heads
of citizens who are minded to step beyond the boundaries of what is proper. But
to prevent the State from legislating criminal laws because they instill such kind
of fear is to render the state powerless in addressing and penalizing socially
harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion
since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates
no tendency to intimidate the free exercise of ones constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data
and systems:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad
faith to profit, mislead, destroy the reputation, and deprive others from registering
the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the
domain name registration;
(ii) Identical or in any way similar with the name of a person other than the
registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
protection clause12 in that, not being narrowly tailored, it will cause a user using
his real name to suffer the same fate as those who use aliases or take the name
of another in satire, parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name
because he claims it to be his pseudo-name and another who registers the name
because it happens to be his real name. Petitioners claim that, considering the
substantial distinction between the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens
to be his real name or use it as a pseudo-name for it is the evil purpose for which
he uses the name that the law condemns. The law is reasonable in penalizing
him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful opportunity
of registering the same. The challenge to the constitutionality of Section 4(a)(6)
on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse,
transfer, possession, alteration, or deletion of identifying information belonging to
another, whether natural or juridical, without right: Provided: that if no damage
has yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom of
the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its existence
as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance
of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones,
any form of intrusion is impermissible unless excused by law and in accordance
with customary legal process. The meticulous regard we accord to these zones
arises not only from our conviction that the right to privacy is a "constitutional
right" and "the right most valued by civilized men," but also from our adherence
to the Universal Declaration of Human Rights which mandates that, "no one shall
be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches16 and seizures, which is the basis of the right to be let
alone, and (b) the right to privacy of communication and correspondence.17 In
assessing the challenge that the State has impermissibly intruded into these

zones of privacy, a court must determine whether a person has exhibited a

reasonable expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The law
punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government effort
to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine
will not hold water since the specific conducts proscribed do not intrude into
guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in
that journalists would be hindered from accessing the unrestricted user account
of a person in the news to secure information about him that could be published.
But this is not the essence of identity theft that the law seeks to prohibit and
punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made
public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established
through the overt acts of the offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear
since a special circumstance is present to negate intent to gain which is required
by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx

(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the
Constitution.21 They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as
crimes under the penal code, would now be regarded as crimes when done "for
favor" in cyberspace. In common usage, the term "favor" includes "gracious
kindness," "a special privilege or right granted or conceded," or "a token of love
(as a ribbon) usually worn conspicuously."22 This meaning given to the term
"favor" embraces socially tolerated trysts. The law as written would invite law
enforcement agencies into the bedrooms of married couples or consenting
individuals.
But the deliberations of the Bicameral Committee of Congress on this section of
the Cybercrime Prevention Act give a proper perspective on the issue. These
deliberations show a lack of intent to penalize a "private showing x x x between
and among two private persons x x x although that may be a form of obscenity to
some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade,
and pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual
activityis not novel. Article 201 of the RPC punishes "obscene publications and
exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003
penalizes those who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act, transaction, scheme, or
design involving the use of a person by another, for sexual intercourse or
lascivious conduct in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise, engaging in sexual acts
privately through internet connection, perceived by some as a right, has to be
balanced with the mandate of the State to eradicate white slavery and the
exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence

delineating the bounds of obscenity.30 The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating, directly
or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. The unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed
through a computer system: Provided, That the penalty to be imposed shall be
(1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography
Act of 200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing
prevents the government from invoking the ACPA when prosecuting persons
who commit child pornography using a computer system. Actually, ACPAs
definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has
questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or duration
of penalty is a legislative prerogative and there is rational basis for such higher
penalty.32 The potential for uncontrolled proliferation of a particular piece of child
pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any
person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and abet the
core offenses that ACPA seeks to punish.34 Petitioners are wary that a person

who merely doodles on paper and imagines a sexual abuse of a 16-year-old is

not criminally liable for producing child pornography but one who formulates the
idea on his laptop would be. Further, if the author bounces off his ideas on
Twitter, anyone who replies to the tweet could be considered aiding and abetting
a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will
be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. The transmission of commercial
electronic communication with the use of computer system which seeks to
advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple,
valid, and reliable way for the recipient to reject receipt of further
commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely
disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely

include misleading information in any part of the message in order to
induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the same
sentence or comment was said to be making a "spam." The term referred to a
Monty Pythons Flying Circus scene in which actors would keep saying "Spam,
Spam, Spam, and Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage
and network capacities of internet service providers, reduces the efficiency of
commerce and technology, and interferes with the owners peaceful enjoyment of
his property. Transmitting spams amounts to trespass to ones privacy since the
person sending out spams enters the recipients domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before the
arrival of the age of computers, have already been receiving such unsolicited ads
by mail. These have never been outlawed as nuisance since people might have
interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients
always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to
read his emails, even unsolicited commercial ads addressed to him. Commercial
speech is a separate category of speech which is not accorded the same level of
protection as that given to other constitutionally guaranteed forms of expression
but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression.
Unsolicited advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel
as well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:

Art. 353. Definition of libel. A libel is public and malicious imputation of a

crime, or of a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed
to be malicious, even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are
not of confidential nature, or of any statement, report or speech delivered
in said proceedings, or of any other act performed by public officers in the
exercise of their functions.
Art. 355. Libel means by writings or similar means. A libel committed by
means of writing, printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may
be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates
to form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any
other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of "presumed
malice" even when the latest jurisprudence already replaces it with the higher

standard of "actual malice" as a basis for conviction.38 Petitioners argue that

inferring "presumed malice" from the accuseds defamatory statement by virtue
of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard used
here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained
serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to convict
the author of a defamatory statement where the offended party is a public figure.
Societys interest and the maintenance of good government demand a full
discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case.
Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part.

Verily, not only was there malice in law, the article being malicious in itself, but
there was also malice in fact, as there was motive to talk ill against complainants
during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances
against public figures in the above case, cinema and television personalities,
when it modified the penalty of imprisonment to just a fine ofP6,000.00.
But, where the offended party is a private individual, the prosecution need not
prove the presence of malice. The law explicitly presumes its existence (malice in
law) from the defamatory character of the assailed statement.45For his defense,
the accused must show that he has a justifiable reason for the defamatory
statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the countrys obligations under the International Covenant
of Civil and Political Rights (ICCPR). They point out that in Adonis v. Republic of
the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its
General Comment 34 to the effect that penal defamation laws should include the
defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361
recognizes truth as a defense but under the condition that the accused has been
prompted in making the statement by good motives and for justifiable ends.
Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may
be given in evidence to the court and if it appears that the matter charged as
libelous is true, and, moreover, that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime
shall not be admitted, unless the imputation shall have been made against
Government employees with respect to facts related to the discharge of their
official duties.
In such cases if the defendant proves the truth of the imputation made by him, he
shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge,
to decriminalize libel. It simply suggested that defamation laws be crafted with
care to ensure that they do not stifle freedom of expression.48Indeed, the ICCPR

states that although everyone should enjoy freedom of expression, its exercise
carries with it special duties and responsibilities. Free speech is not absolute. It is
subject to certain restrictions, as may be necessary and as may be provided by
law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In
effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes
the author of the libelous statement or article. Cyberlibel brings with it certain
intricacies, unheard of when the penal code provisions on libel were enacted.
The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of the
readers reaction to defamatory statements posted in cyberspace, facilitated by
one-click reply options offered by the networking site as well as by the speed with
which such reactions are disseminated down the line to other internet users.
Whether these reactions to defamatory statement posted on the internet
constitute aiding and abetting libel, acts that Section 5 of the cybercrime law
punishes, is another matter that the Court will deal with next in relation to Section
5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who
willfully abets or aids in the commission of any of the offenses enumerated
in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully
attempts to commit any of the offenses enumerated in this Act shall be
held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable
any person who willfully abets or aids in the commission or attempts to commit

any of the offenses enumerated as cybercrimes. It suffers from overbreadth,

creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence
and laws on aiding and abetting sufficiently protects the freedom of expression of
"netizens," the multitude that avail themselves of the services of the internet. He
points out that existing laws and jurisprudence sufficiently delineate the meaning
of "aiding or abetting" a crime as to protect the innocent. The Solicitor General
argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to
define every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing
laws. When a person aids or abets another in destroying a forest,52 smuggling
merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of
sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings online
threatens the heretofore popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos
have accessed the internet within a year, translating to about 31 million
users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social
relations among people who, for example, share interests, activities,
backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book of
who they are, add other users as friends, and exchange messages, including
automatic notifications when they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which can be made visible to
anyone, depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to
his friends, anyone on Facebook can react to the posting, clicking any of several
buttons of preferences on the programs screen such as "Like," "Comment," or
"Share." "Like" signifies that the reader likes the posting while "Comment"
enables him to post online his feelings or views about the same, such as "This is

great!" When a Facebook user "Shares" a posting, the original "posting" will
appear on his own Facebook profile, consequently making it visible to his downline Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of up
to 140 characters. These are known as "Tweets." Microblogging is the practice of
posting small pieces of digital contentwhich could be in the form of text,
pictures, links, short videos, or other mediaon the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular users posts,
enabling them to read the same, and "Following," those whom this particular user
is subscribed to, enabling him to read their posts. Like Facebook, a Twitter user
can make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet" a given posting.
Retweeting is just reposting or republishing another persons tweet without the
need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that may
have provided the computer used for posting the blog; e) the person who makes
a favorable comment on the blog; and f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog
service provider). She needs the internet to access her blog so she subscribes to
Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of Marias
friends who sees this post, comments online, "Yes, this is so true! They are so
immoral." Marias original post is then multiplied by her friends and the latters
friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and
so shares the link to this apparently defamatory blog on her Twitter account.
Nenas "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas
original tweet and posts this on her Facebook account. Immediately, Pamelas
Facebook Friends start Liking and making Comments on the assailed posting. A
lot of them even press the Share button, resulting in the further spread of the
original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as

"aiding or abetting?" In libel in the physical world, if Nestor places on the office
bulletin board a small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could
not be libel since he did not author the poster. If Arthur, passing by and noticing
the poster, writes on it, "Correct!," would that be libel? No, for he merely
expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking
site. Would a reader and his Friends or Followers, availing themselves of any of
the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting libel?
And, in the complex world of cyberspace expressions of thoughts, when will one
be liable for aiding or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or
"Followers" in the criminal charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square
peg in a round hole when applied to cyberspace libel. Unless the legislature
crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this
new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age;
and (2) the knowing use of an interactive computer service to send to a specific
person or persons under 18 years of age or to display in a manner available to a
person under 18 years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendments
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court
agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S.
223, is a matter of special concern for two reasons. First, the CDA is a contentbased regulation of speech. The vagueness of such a regulation raises special
U.S. Const. amend. I concerns because of its obvious chilling effect on free
speech. Second, the CDA is a criminal statute. In addition to the opprobrium and
stigma of a criminal conviction, the CDA threatens violators with penalties
including up to two years in prison for each act of violation. The severity of
criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. As a practical
matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns
than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a
great threat of censoring speech that, in fact, falls outside the statute's scope.
Given the vague contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not
be overly broad. The CDAs burden on protected speech cannot be justified if it
could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of
the mouse. Scurrilous statements can spread and travel fast across the globe
like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying
that oppresses the victim, his relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose, which seeks to regulate the
use of this cyberspace communication technology to protect a persons
reputation and peace of mind, cannot adopt means that will unnecessarily and
broadly sweep, invading the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and with it, all liberties. Penal laws
should provide reasonably clear guidelines for law enforcement officials and
triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms
"aiding or abetting" constitute broad sweep that generates chilling effect on those
who express themselves through cyberspace posts, comments, and other

messages.64Hence, Section 5 of the cybercrime law that punishes "aiding or

abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of
the doctrine must be carefully delineated. As Justice Antonio T. Carpio explained
in his dissent in Romualdez v. Commission on Elections,65 "we must view these
statements of the Court on the inapplicability of the overbreadth and vagueness
doctrines to penal statutes as appropriate only insofar as these doctrines are
used to mount facial challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground absence of due process,
lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness.
Here, one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from assailing the constitutionality of
the statute based solely on the violation of the rights of third persons not before
the court. This rule is also known as the prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his
own rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does not
know whether his speech constitutes a crime under an overbroad or vague law
may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites
would give law enforcers such latitude that they could arbitrarily or selectively
enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting
on the internet by liking it? Netizens are not given "fair notice" or warning as to
what is criminal conduct and what is lawful conduct. When a case is filed, how
will the court ascertain whether or not one netizens comment aided and abetted
a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats his
wife and children," then that should be considered an original posting published
on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations
that society values. Allowed to cascade in the internet, it will destroy relationships
and, under certain circumstances, will generate enmity and tension between
social or economic groups, races, or religions, exacerbating existing tension in
their relationships.
In regard to the crime that targets child pornography, when "Google procures,
stores, and indexes child pornography and facilitates the completion of
transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child pornography
crimes?68 Byars highlights a feature in the American law on child pornography
that the Cybercrimes law lacksthe exemption of a provider or notably a plain
user of interactive computer service from civil liability for child pornography as
follows:
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
provider and cannot be held civilly liable for any action voluntarily taken in good
faith to restrict access to or availability of material that the provider or user
considers to be obscene...whether or not such material is constitutionally
protected.69
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography? When a user downloads the
Facebook mobile application, the user may give consent to Facebook to access
his contact details. In this way, certain information is forwarded to third parties
and unsolicited commercial communication could be disseminated on the basis
of this information.70 As the source of this information, is the user aiding the
distribution of this communication? The legislature needs to address this clearly
to relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect
on the freedom of expression, especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as
the petitioners point out, formal crimes such as libel are not punishable unless
consummated.71 In the absence of legislation tracing the interaction of netizens
and their level of responsibility such as in other countries, Section 5, in relation to

Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial

Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section
5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section
4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section
4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the
exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same
reason not objectionable. A hacker may for instance have done all that is
necessary to illegally access another partys computer system but the security
employed by the systems lawful owner could frustrate his effort. Another hacker
may have gained access to usernames and passwords of others but fail to use
these because the system supervisor is alerted.72 If Section 5 that punishes any
person who willfully attempts to commit this specific offense is not upheld, the
owner of the username and password could not file a complaint against him for
attempted hacking. But this is not right. The hacker should not be freed from
liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent.73 While this may be true with respect to cybercrimes that tend to sneak
past the area of free expression, any attempt to commit the other acts specified
in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section
4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and
Section 4(c)(1) as well as the actors aiding and abetting the commission of such
acts can be identified with some reasonable certainty through adroit tracking of
their works. Absent concrete proof of the same, the innocent will of course be
spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1)

degree higher than that provided for by the Revised Penal Code, as amended,
and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of information
and communications technology and similar crimes committed using other
means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be
without prejudice to any liability for violation of any provision of the Revised Penal
Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the same fact, if each
crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material
on print, said to be libelous, is again posted online or vice versa, that identical
material cannot be the subject of two separate libels. The two offenses, one a
violation of Article 353 of the Revised Penal Code and the other a violation of
Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel
under Section 4(c)(4) is not a new crime but is one already punished under
Article 353. Section 4(c)(4) merely establishes the computer system as another
means of publication.75 Charging the offender under both laws would be a blatant
violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPAs scope so as to include identical activities in cyberspace. As
previously discussed, ACPAs definition of child pornography in fact already

covers the use of "electronic, mechanical, digital, optical, magnetic or any other
means." Thus, charging the offender under both Section 4(c)(2) and ACPA would
likewise be tantamount to a violation of the constitutional prohibition against
double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage
incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount commensurate to the damage incurred
or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine
of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One
million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic
Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the
penalty to be imposed shall be one (1) degree higher than that provided for in
Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least
Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty
thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5
shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand

pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos

(PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer Data
and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices;
when the crime punishable under 4(a) is committed against critical infrastructure;
4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt
in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine penalties
for offenses is not diluted or improperly wielded simply because at some prior
time the act or omission was but an element of another offense or might just
have been connected with another crime.77 Judges and magistrates can only
interpret and apply them and have no authority to modify or revise their range as
determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities,
with due cause, shall be authorized to collect or record by technical or electronic
means traffic data in real-time associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there are

reasonable grounds to believe that any of the crimes enumerated hereinabove

has been committed, or is being committed, or is about to be committed; (2) that
there are reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or
record traffic data in real time as tending to curtail civil liberties or provide
opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not
be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from
government snooping into the messages or information that they send to one
another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally considered
private but then only upon showing that such requirement has a rational relation
to the purpose of the law,79 that there is a compelling State interest behind the
law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the
State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law
for there is a need to put order to the tremendous activities in cyberspace for
public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of
cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic
data is a part, aims to provide law enforcement authorities with the power they
need for spotting, preventing, and investigating crimes committed in cyberspace.
Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out,
the Budapest Convention on Cybercrimes requires signatory countries to adopt
legislative measures to empower state authorities to collect or record "traffic data,
in real time, associated with specified communications."83 And this is precisely
what Section 12 does. It empowers law enforcement agencies in this country to
collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it
has been committed, adequate for fighting cybercrimes and, therefore, real-time
data is superfluous for that purpose? Evidently, it is not. Those who commit the

crimes of accessing a computer system without right,84 transmitting

viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection
and prosecution by simply moving the physical location of their computers or
laptops from day to day. In this digital age, the wicked can commit cybercrimes
from virtually anywhere: from internet cafs, from kindred places that provide free
internet services, and from unregistered mobile internet connectors. Criminals
using cellphones under pre-paid arrangements and with unregistered SIM cards
do not have listed addresses and can neither be located nor identified. There are
many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement
authorities regarding their places of operations. Evidently, it is only real-time
traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and
do not provide ample safeguards against crossing legal boundaries and invading
the peoples right to privacy. The concern is understandable. Indeed, the Court
recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work
together to create zones of privacy wherein governmental powers may not
intrude, and that there exists an independent constitutional right of privacy. Such
right to be left alone has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme
Court classified privacy into two categories: decisional privacy and informational
privacy. Decisional privacy involves the right to independence in making certain
important decisions, while informational privacy refers to the interest in avoiding
disclosure of personal matters. It is the latter rightthe right to informational
privacythat those who oppose government collection or recording of traffic data
in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to the right to privacy, this Court
has laid down a two-fold test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy
must be one society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners challenge to Section 12
applies to all information and communications technology (ICT) users, meaning
the large segment of the population who use all sorts of electronic devices to

communicate with one another. Consequently, the expectation of privacy is to be

measured from the general publics point of view. Without reasonable
expectation of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the recipient
ICT user. For example, an ICT user who writes a text message intended for
another ICT user must furnish his service provider with his cellphone number and
the cellphone number of his recipient, accompanying the message sent. It is this
information that creates the traffic data. Transmitting communications is akin to
putting a letter in an envelope properly addressed, sealing it closed, and sending
it through the postal service. Those who post letters have no expectations that no
one will read the information appearing outside the envelope.
Computer datamessages of all kindstravel across the internet in packets and
in a way that may be likened to parcels of letters or things that are sent through
the posts. When data is sent from any one source, the content is broken up into
packets and around each of these packets is a wrapper or header. This header
contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet chat
messages, email, online browsing data, etc.), where the packet is going, and how
the packet fits together with other packets.93 The difference is that traffic data sent
through the internet at times across the ocean do not disclose the actual names
and addresses (residential or office) of the sender and the recipient, only their
coded internet protocol (IP) addresses. The packets travel from one computer
system to another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents
of the messages and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the
service providers communications system will put his voice message into
packets and send them to the other persons cellphone where they are refitted
together and heard. The latters spoken reply is sent to the caller in the same
way. To be connected by the service provider, the sender reveals his cellphone
number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating
electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme
Court reasoned that telephone users in the 70s must realize that they
necessarily convey phone numbers to the telephone company in order to

complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that
society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them
out of the private sphere, making the expectation to privacy in regard to them an
expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly
random bits of traffic data are gathered in bulk, pooled together, and analyzed,
they reveal patterns of activities which can then be used to create profiles of the
persons under surveillance. With enough traffic data, analysts may be able to
determine a persons close associations, religious views, political affiliations,
even sexual preferences. Such information is likely beyond what the public may
expect to be disclosed, and clearly falls within matters protected by the right to
privacy. But has the procedure that Section 12 of the law provides been drawn
narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or
record by technical or electronic means traffic data in real-time. Petitioners point
out that the phrase "due cause" has no precedent in law or jurisprudence and
that whether there is due cause or not is left to the discretion of the police.
Replying to this, the Solicitor General asserts that Congress is not required to
define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to hint at
the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence
to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission
of a particular crime. It just says, "with due cause," thus justifying a general
gathering of data. It is akin to the use of a general search warrant that the
Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be
used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?

The authority that Section 12 gives law enforcement agencies is too sweeping
and lacks restraint. While it says that traffic data collection should not disclose
identities or content data, such restraint is but an illusion. Admittedly, nothing can
prevent law enforcement agencies holding these data in their hands from looking
into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion
from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with
specified communications." But this supposed limitation is no limitation at all
since, evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement
authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to
privacy.
The Solicitor General points out that Section 12 needs to authorize collection of
traffic data "in real time" because it is not possible to get a court warrant that
would authorize the search of what is akin to a "moving vehicle." But warrantless
search is associated with a police officers determination of probable cause that a
crime has been committed, that there is no opportunity for getting a warrant, and
that unless the search is immediately carried out, the thing to be searched stands
to be removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could
be better served by providing for more robust safeguards. His bare assurance
that law enforcement authorities will not abuse the provisions of Section 12 is of
course not enough. The grant of the power to track cyberspace communications
in real time and determine their sources and destinations must be narrowly
drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of
the void-for-vagueness doctrine and the overbreadth doctrine. These doctrines
however, have been consistently held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates nor punishes any type of
speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance in
ways that have previously been impractical or even impossible. "All the forces of
a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this

enclave of private life marks the difference between a democratic and a

totalitarian society."96 The Court must ensure that laws seeking to take advantage
of these technologies be written with specificity and definiteness as to ensure
respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data and
subscriber information relating to communication services provided by a service
provider shall be preserved for a minimum period of six (6) months from the date
of the transaction. Content data shall be similarly preserved for six (6) months
from the date of receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by
a service provider is used as evidence in a case, the mere furnishing to such
service provider of the transmittal document to the Office of the Prosecutor shall
be deemed a notification to preserve the computer data until the termination of
the case.
The service provider ordered to preserve computer data shall keep confidential
the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order that
law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong
to their authors or recipients and are to be considered private communications.
But it is not clear that a service provider has an obligation to indefinitely keep a
copy of the same as they pass its system for the benefit of users. By virtue of
Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six
months from the date of the transaction and those relating to content data for at
least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the
same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscribers information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt of
the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being likened to the issuance of a
subpoena. Petitioners objection is that the issuance of subpoenas is a judicial
function. But it is well-settled that the power to issue subpoenas is not exclusively
a judicial function. Executive agencies have the power to issue subpoena as an
adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued
court warrant, a function usually lodged in the hands of law enforcers to enable
them to carry out their executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search or seizure nor would it violate
the privacy of communications and correspondence. Disclosure can be made
only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search
and seizure warrant is properly issued, the law enforcement authorities shall
likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as

defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the accessed
computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who has
knowledge about the functioning of the computer system and the measures to
protect and preserve the computer data therein to provide, as is reasonable, the
necessary information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time to complete
the examination of the computer data storage medium and to make a return
thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would ensure
the proper collection, preservation, and use of computer system or data that have
been seized by virtue of a court warrant. The exercise of these duties do not
pose any threat on the rights of the person from whom they were taken. Section
15 does not appear to supersede existing search and seizure rules but merely
supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or

examination, destroyed or deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up the service providers
storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the users right against deprivation of
property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of
the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the
data or received it. He could also request the service provider for a copy before it
is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ
shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates
the right against unreasonable searches and seizures. The Solicitor General
concedes that this provision may be unconstitutional. But since laws enjoy a
presumption of constitutionality, the Court must satisfy itself that Section 19
indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware,
as well as files that contain texts, images, audio, or video recordings. Without
having to go into a lengthy discussion of property rights in the digital space, it is
indisputable that computer data, produced or created by their writers or authors
may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal
computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure
in ones papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable. Further, it states that no
search warrant shall issue except upon probable cause to be determined
personally by the judge. Here, the Government, in effect, seizes and places the

computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But for
an executive officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all
rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on
speech. Restraints on free speech are generally evaluated on one of or a
combination of three tests: the dangerous tendency doctrine, the balancing of
interest test, and the clear and present danger rule.101 Section 19, however,
merely requires that the data to be blocked be found prima facie in violation of
any provision of the cybercrime law. Taking Section 6 into consideration, this can
actually be made to apply in relation to any penal provision. It does not take into
consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of
the constitutional guarantees to freedom of expression and against unreasonable
searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV
hereof specifically the orders from law enforcement authorities shall be punished
as a violation of Presidential Decree No. 1829 with imprisonment of prision
correctional in its maximum period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential

Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the
offense which are defined therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had to make reference to
any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person
who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases
by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt, during
which, as the Solicitor General assumes, defense and justifications for noncompliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and
functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance
of real time commission of cybercrime offenses through a computer emergency
response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it
gave the Cybercrime Investigation and Coordinating Center (CICC) the power to

formulate a national cybersecurity plan without any sufficient standards or

parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the
Court has adopted two tests: the completeness test and the sufficient standard
test. Under the first test, the law must be complete in all its terms and conditions
when it leaves the legislature such that when it reaches the delegate, the only
thing he will have to do is to enforce it. The second test mandates adequate
guidelines or limitations in the law to determine the boundaries of the delegates
authority and prevent the delegation from running riot.103
1avvp hi1

Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to follow
when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies that
can be used to protect cyber environment and organization and users
assets.104 This definition serves as the parameters within which CICC should work
in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of
the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order,
which has been considered as sufficient standard.106 Hence, Sections 24 and
26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic
data in real-time; and
c. Section 19 of the same Act that authorizes the Department of
Justice to restrict or block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system
without right;
b. Section 4(a)(3) that penalizes data interference, including
transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain
name over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition
of sexual organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes
defined under the Revised Penal Code are committed with the use
of information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require
service providers to preserve traffic data and subscriber information
as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a
court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of
computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to
cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and
Coordinating Center (CICC);

o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post; but
VOID and UNCONSTITUTIONAL with respect to others who simply
receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only in
relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on
System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cybersquatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel.
1wphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct

application of Section 7 that authorizes prosecution of the offender under both
the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against double jeopardy; as well
as
2. Child pornography committed online as to which, charging the offender
under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or
the Anti-Child Pornography Act of 2009 also constitutes a violation of the
same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.

20. RESTERIO V PEOPLE

DECISION
BERSAMIN, J.:
The notice of dishonor required by Batas Pambansa Blg. 22 to be given to the
drawer, maker or issuer of a check should be written. If the service of the written
notice of dishonor on the maker, drawer or issuer of the dishonored check is by
registered mail, the proof of service consists not only in the presentation as
evidence of the registry return receipt but also of the registry receipt together with
the authenticating affidavit of the person mailing the notice of dishonor. Without
the authenticating affidavit, the proof of giving the notice of dishonor is insufficient
unless the mailer personally testifies in court on the sending by registered mail.
Antecedents
The petitioner was charged with a violation of Batas Pambansa Blg. 22 in the
Municipal Trial Court in Cities (MTCC) in Mandaue City through the information
that alleged as follows:
That on May, 2002, or thereabouts, in the City of Mandaue, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent of gain, did there and then willfully, unlawfully and feloniously
make, draw and issue ChinaBank Check bearing No. AO141332, dated June 3,
2002, in the amount of P 50,000.00 payable to the order of Bernardo T. Villadolid
to apply on account or for value, the accused fully knowing well that at the time of
the issuance of said check that she does not have sufficient funds in or credit
with the drawee bank for the payment of such check in full upon its presentment;
or the accused having sufficient funds in or credit with the drawee bank when she
make/s or draw/s and issue/s a check but she failed to keep sufficient funds or
maintain a credit to cover the full amount of the check, which check when
presented for encashment was dishonored by the drawee bank for the reason
"ACCT. CLOSED" or would have been dishonored for the same reason had not
the drawer, without any valid reason ordered the bank to stop payment, and
despite notice of dishonor and demands for payment, said accused failed and
refused and still fails and refuses to redeem the check or to make arrangement
for payment in full by the drawee of such check within five (5) banking days after
receiving the notice of dishonor, to the damage and prejudice of the aforenamed

private complainant, in the aforestated amount and other claims and charges
allowed by civil law.
CONTRARY TO LAW.1
After trial, the MTCC found the petitioner guilty as charged, disposing as follows:
WHEREFORE, decision is hereby rendered finding the accused, AMADA Y.
RESTERIO, GUILTY beyond reasonable doubt for Violation of Batas Pambansa
Bilang 22 and sentences her to pay a fine of FIFTY THOUSAND PESOS
(P 50,000.00) and to pay her civil liabilities to the private complainant in the sum
of FIFTY THOUSAND PESOS (P 50,000.00), TEN THOUSAND PESOS
(P 10,000.00) as attorneys fees and FIVE HUNDRED SEVENTY-FIVE PESOS
(P 575.00) as eimbursement of the filing fees.
SO ORDERED.2
The petitioner appealed, but the RTC affirmed the conviction.3
By petition for review, the petitioner appealed to the CA, stating that: (a) the RTC
erred in affirming the conviction and in not finding instead that the Prosecution
did not establish her guilt beyond reasonable doubt; and (b) the conviction was
contrary to existing laws and jurisprudence, particularly Yu Oh v. Court of
Appeals.4
On December 4, 2006, the CA found the petition to be without merit, and denied
the petition for review.5
Issues
The petitioner assails the affirmance of her conviction by the CA based on the
following grounds, to wit:
THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS
AND REVERSIBLE ERROR AND WITH GRAVE ABUSE OF
DISCRETION IN IGNORING THE APPLICABILITY IN THE PRESENT
CASE THE DECISION OF THE SUPREME COURT IN THE CASE OF
ELVIRA YU OH VS. COURT OF APPEALS, G.R. NO. 125297, JUNE 26,
2003.
THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS
AND REVERSIBLE ERROR AND WITH GRAVE ABUSE OF
DISCRETION IN NOT FINDING THAT THE PROSECUTION FAILED TO

PROVE ALL THE ESSENTIAL ELEMENTS OF THE CRIME OF

VIOLATION OF BATAS PAMBANSA BILANG 22.
THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS
AND REVERSIBLE ERROR AND WITH GRAVE ABUSE OF
DISCRETION IN NOT FINDING THAT NO NOTICE OF DISHONOR WAS
ACTUALLY SENT TO THE PETITIONER.
THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS
AND REVERSIBLE ERROR AND WITH GRAVE ABUSE OF
DISCRETION IN NOT FINDING THAT THE PROSECUTION FAILED TO
ESTABLISH THE GUILT OF THE PETITIONER BEYOND REASONABLE
DOUBT.6
The appeal hinges on whether or not all the elements of a violation of Batas
Pambansa Blg. 22 were established beyond reasonable doubt.
Ruling
The petition is meritorious.
For a violation of Batas Pambansa Blg. 22, the Prosecution must prove the
following essential elements, namely:
(1) The making, drawing, and issuance of any check to apply for account
or for value;
(2) The knowledge of the maker, drawer, or issuer that at the time of issue
there were no sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment; and
(3) The dishonor of the check by the drawee bank for insufficiency of funds
or credit or the dishonor for the same reason had not the drawer, without
any valid cause, ordered the drawee bank to stop payment. 7
The existence of the first element of the violation is not disputed. According to the
petitioner, she was "required to issue a check as a collateral for the obligation,"
and that "she was left with no alternative but to borrow the check of her friend xxx
and used the said check as a collateral of her loan."8 During her crossexamination, she stated that she did not own the check that she drew and issued
to complainant Bernardo Villadolid.9
Yet, to avoid criminal liability, the petitioner contends that Batas Pambansa Blg.
22 was applicable only if the dishonored check was actually owned by her; and

that she could not be held liable because the check was issued as a mere
collateral of the loan and not intended to be deposited.
The petitioners contentions do not persuade.
What Batas Pambansa Blg. 22 punished was the mere act of issuing a worthless
check. The law did not look either at the actual ownership of the check or of the
account against which it was made, drawn, or issued, or at the intention of the
drawee, maker or issuer. Also, that the check was not intended to be deposited
was really of no consequence to her incurring criminal liability under Batas
Pambansa Blg. 22. In Ruiz v. People,10 the Court debunked her contentions and
cogently observed:
In Lozano v. Martinez, this Court ruled that the gravamen of the offense is the act
of making and issuing a worthless check or any check that is dishonored upon its
presentment for payment and putting them in circulation. The law includes all
checks drawn against banks. The law was designed to prohibit and altogether
eliminate the deleterious and pernicious practice of issuing checks with
insufficient or no credit or funds therefor. Such practice is deemed a public
nuisance, a crime against public order to be abated. The mere act of issuing a
worthless check, either as a deposit, as a guarantee, or even as an evidence of a
pre-existing debt or as a mode of payment is covered by B.P. 22. It is a crime
classified as malum prohibitum. The law is broad enough to include, within its
coverage, the making and issuing of a check by one who has no account with a
bank, or where such account was already closed when the check was presented
for payment. As the Court in Lozano explained:
The effects of the issuance of a worthless check transcends the private interests
of the parties directly involved in the transaction and touches the interests of the
community at large. The mischief it creates is not only a wrong to the payee or
holder, but also an injury to the public. The harmful practice of putting valueless
commercial papers in circulation, multiplied a thousandfold, can very well pollute
the channels of trade and commerce, injure the banking system and eventually
hurt the welfare of society and the public interest. As aptly stated
The "check flasher" does a great deal more than contract a debt; he shakes the
pillars of business; and to my mind, it is a mistaken charity of judgment to place
him in the same category with the honest man who is unable to pay his debts,
and for whom the constitutional inhibition against "imprisonment for debt, except
in cases of fraud" was intended as a shield and not a sword.
Considering that the law imposes a penal sanction on one who draws and issues
a worthless check against insufficient funds or a closed account in the drawee

bank, there is, likewise, every reason to penalize a person who indulges in the
making and issuing of a check on an account belonging to another with the
latters consent, which account has been closed or has no funds or credit with the
drawee bank.11 (Bold emphases supplied)
The State likewise proved the existence of the third element. On direct
examination, Villadolid declared that the check had been dishonored upon its
presentment to the drawee bank through the Bank of the Philippine Islands (BPI)
as the collecting bank. The return check memorandum issued by BPI indicated
that the account had already been closed.12 The petitioner did not deny or
contradict the fact of dishonor.
The remaining issue is whether or not the second element, that is, the knowledge
of the petitioner as the issuer of the check that at the time of issue there were no
sufficient funds in or credit with the drawee bank for the payment of such check
in full upon its presentment, was existent.
To establish the existence of the second element, the State should present the
giving of a written notice of the dishonor to the drawer, maker or issuer of the
dishonored check. The rationale for this requirement is rendered in Dico v. Court
of Appeals,13 to wit:
To hold a person liable under B.P. Blg. 22, the prosecution must not only
establish that a check was issued and that the same was subsequently
dishonored, it must further be shown that accused knew at the time of the
issuance of the check that he did not have sufficient funds or credit with the
drawee bank for the payment of such check in full upon its presentment.
This knowledge of insufficiency of funds or credit at the time of the issuance of
the check is the second element of the offense. Inasmuch as this element
involves a state of mind of the person making, drawing or issuing the check
which is difficult to prove, Section 2 of B.P. Blg. 22 creates a prima facie
presumption of such knowledge. Said section reads:
SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and
issuance of a check payment of which is refused by the drawee because of
insufficient funds in or credit with such bank, when presented within ninety (90)
days from the date of the check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit unless such maker or drawer
pays the holder thereof the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the drawee.

For this presumption to arise, the prosecution must prove the following: (a) the
check is presented within ninety (90) days from the date of the check; (b) the
drawer or maker of the check receives notice that such check has not been paid
by the drawee; and (c) the drawer or maker of the check fails to pay the holder of
the check the amount due thereon, or make arrangements for payment in full
within five (5) banking days after receiving notice that such check has not been
paid by the drawee. In other words, the presumption is brought into existence
only after it is proved that the issuer had received a notice of dishonor and that
within five days from receipt thereof, he failed to pay the amount of the check or
to make arrangements for its payment. The presumption or prima facie evidence
as provided in this section cannot arise, if such notice of nonpayment by the
drawee bank is not sent to the maker or drawer, or if there is no proof as to when
such notice was received by the drawer, since there would simply be no way of
reckoning the crucial 5-day period.
A notice of dishonor received by the maker or drawer of the check is thus
indispensable before a conviction can ensue. The notice of dishonor may be sent
by the offended party or the drawee bank. The notice must be in writing. A mere
oral notice to pay a dishonored check will not suffice. The lack of a written notice
is fatal for the prosecution.14 (Bold emphases supplied)
The giving of the written notice of dishonor does not only supply the proof for the
second element arising from the presumption of knowledge the law puts up but
also affords the offender due process. The law thereby allows the offender to
avoid prosecution if she pays the holder of the check the amount due thereon, or
makes arrangements for the payment in full of the check by the drawee within
five banking days from receipt of the written notice that the check had not been
paid.15 The Court cannot permit a deprivation of the offender of this statutory right
by not giving the proper notice of dishonor. The nature of this opportunity for the
accused to avoid criminal prosecution has been expounded in Lao v. Court of
Appeals:16
It has been observed that the State, under this statute, actually offers the violator
a compromise by allowing him to perform some act which operates to preempt
the criminal action, and if he opts to perform it the action is abated xxx In this
light, the full payment of the amount appearing in the check within five banking
days from notice of dishonor is a complete defense. The absence of a notice of
dishonor necessarily deprives an accused an opportunity to preclude a criminal
prosecution. Accordingly, procedural due process clearly enjoins that a notice of
dishonor be actually served on petitioner. Petitioner has a right to demand and
the basic postulate of fairness require that the notice of dishonor be actually
sent to and received by her to afford her the opportunity to avert prosecution
under B.P. 22."17 (Bold emphases supplied)

To prove that he had sent the written notice of dishonor to the petitioner by
registered mail, Villadolid presented the registry return receipt for the first notice
of dishonor dated June 17, 2002 and the registry return receipt for the second
notice of dishonor dated July 16, 2002. However, the petitioner denied receiving
the written notices of dishonor.
The mere presentment of the two registry return receipts was not sufficient to
establish the fact that written notices of dishonor had been sent to or served on
the petitioner as the issuer of the check. Considering that the sending of the
written notices of dishonor had been done by registered mail, the registry return
receipts by themselves were not proof of the service on the petitioner without
being accompanied by the authenticating affidavit of the person or persons who
had actually mailed the written notices of dishonor, or without the testimony in
court of the mailer or mailers on the fact of mailing. The authentication by
affidavit of the mailer or mailers was necessary in order for the giving of the
notices of dishonor by registered mail to be regarded as clear proof of the giving
of the notices of dishonor to predicate the existence of the second element of the
offense. No less would fulfill the quantum of proof beyond reasonable doubt, for,
as the Court said in Ting v. Court of Appeals:18
Aside from the above testimony, no other reference was made to the demand
letter by the prosecution. As can be noticed from the above exchange, the
prosecution alleged that the demand letter had been sent by mail. To prove
mailing, it presented a copy of the demand letter as well as the registry return
receipt. However, no attempt was made to show that the demand letter was
indeed sent through registered mail nor was the signature on the registry return
receipt authenticated or identified. It cannot even be gleaned from the testimony
of private complainant as to who sent the demand letter and when the same was
sent. In fact, the prosecution seems to have presumed that the registry return
receipt was proof enough that the demand letter was sent through registered mail
and that the same was actually received by petitioners or their agents.
As adverted to earlier, it is necessary in cases for violation of Batas Pambansa
Blg. 22, that the prosecution prove that the issuer had received a notice of
dishonor. It is a general rule that when service of notice is an issue, the person
alleging that the notice was served must prove the fact of service (58 Am Jur 2d,
Notice, 45). The burden of proving notice rests upon the party asserting its
existence. Now, ordinarily, preponderance of evidence is sufficient to prove
notice. In criminal cases, however, the quantum of proof required is proof beyond
reasonable doubt. Hence, for Batas Pambansa Blg. 22 cases, there should be
clear proof of notice. Moreover, it is a general rule that, when service of a notice
is sought to be made by mail, it should appear that the conditions on which the
validity of such service depends had existence, otherwise the evidence is

insufficient to establish the fact of service (C.J.S., Notice, 18). In the instant
case, the prosecution did not present proof that the demand letter was sent
through registered mail, relying as it did only on the registry return receipt. In civil
cases, service made through registered mail is proved by the registry receipt
issued by the mailing office and an affidavit of the person mailing of facts
showing compliance with Section 7 of Rule 13 (See Section 13, Rule 13, 1997
Rules of Civil Procedure). If, in addition to the registry receipt, it is required in civil
cases that an affidavit of mailing as proof of service be presented, then with more
reason should we hold in criminal cases that a registry receipt alone is
insufficient as proof of mailing. In the instant case, the prosecution failed to
present the testimony, or at least the affidavit, of the person mailing that, indeed,
the demand letter was sent. xxx
Moreover, petitioners, during the pre-trial, denied having received the demand
letter (p. 135, Rollo). Given petitioners denial of receipt of the demand letter, it
behooved the prosecution to present proof that the demand letter was indeed
sent through registered mail and that the same was received by petitioners. This,
the prosecution miserably failed to do. Instead, it merely presented the demand
letter and registry return receipt as if mere presentation of the same was
equivalent to proof that some sort of mail matter was received by petitioners.
Receipts for registered letters and return receipts do not prove themselves; they
must be properly authenticated in order to serve as proof of receipt of the letters
(Central Trust Co. v. City of Des Moines, 218 NW 580).
Likewise, for notice by mail, it must appear that the same was served on the
addressee or a duly authorized agent of the addressee. In fact, the registry return
receipt itself provides that "[a] registered article must not be delivered to anyone
but the addressee, or upon the addressees written order, in which case the
authorized agent must write the addressees name on the proper space and then
affix legibly his own signature below it." In the case at bar, no effort was made to
show that the demand letter was received by petitioners or their agent. All that
we have on record is an illegible signature on the registry receipt as evidence
that someone received the letter. As to whether this signature is that of one of the
petitioners or of their authorized agent remains a mystery. From the registry
receipt alone, it is possible that petitioners or their authorized agent did receive
the demand letter. Possibilities, however, cannot replace proof beyond
reasonable doubt. There being insufficient proof that petitioners received notice
that their checks had been dishonored, the presumption that they knew of the
insufficiency of the funds therefor cannot arise.
As we stated in Savage v. Taypin (G.R. No. 134217, May 11, 2000, 311 SCRA
397), "penal statutes must be strictly construed against the State and liberally in
favor of the accused." Likewise, the prosecution may not rely on the weakness of

the evidence for the defense to make up for its own blunders in prosecuting an
offense. Having failed to prove all the elements of the offense, petitioners may
not thus be convicted for violation of Batas Pambansa Blg. 22. (Bold emphases
supplied)
1wphi1

Also, that the wife of Villadolid verbally informed the petitioner that the check had
bounced did not satisfy the requirement of showing that written notices of
dishonor had been made to and received by the petitioner. The verbal notices of
dishonor were not effective because it is already settled that a notice of dishonor
must be in writing.19 The Court definitively ruled on the specific form of the notice
of dishonor in Domagsang v. Court of Appeals:20
Petitioner counters that the lack of a written notice of dishonor is fatal. The Court
agrees.
While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor
be in writing, taken in conjunction, however, with Section 3 of the law, i.e., "that
where there are no sufficient funds in or credit with such drawee bank, such fact
shall always be explicitly stated in the notice of dishonor or refusal," a mere oral
notice or demand to pay would appear to be insufficient for conviction under the
law. The Court is convinced that both the spirit and letter of the Bouncing Checks
Law would require for the act to be punished thereunder not only that the
accused issued a check that is dishonored, but that likewise the accused has
actually been notified in writing of the fact of dishonor. The consistent rule is that
penal statutes have to be construed strictly against the State and liberally in favor
of the accused. (Bold emphases supplied; italics in the original text)
In light of the foregoing, the proof of the guilt of the petitioner for a violation of
Batas Pambansa Blg. 22 for issuing to Villadolid the unfunded Chinabank Check
No. LPU-A0141332 in the amount of P 50,000.00 did not satisfy the quantum of
proof beyond reasonable doubt. According to Section 2 of Rule 133, Rules of
Court, the accused is entitled to an acquittal, unless his guilt is shown beyond
reasonable doubt, which does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty; only a moral certainty is required,
or that degree of proof that produces conviction in an unprejudiced mind. This is
the required quantum, firstly, because the accused is presumed to be innocent
until the contrary is proved, and, secondly, because of the inequality of the
position in which the accused finds herself, with the State being arrayed against
her with its unlimited command of means, with counsel usually of authority and
capacity, who are regarded as public officers, "and with an attitude of tranquil
majesty often in striking contrast to that of (the accused) engaged in a perturbed
and distracting struggle for liberty if not for life."21

Nonetheless, the civil liability of the petitioner in the principal sum of P 50,000.00,
being admitted, was established. She was further liable for legal interest of 6%
per annum on that principal sum, reckoned from the filing of the information in the
trial court. That rate of interest will increase to 12% per annum upon the finality of
this decision.
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the
Court of Appeals promulgated on December 4, 2006, and ACQUITS petitioner
AMADA RESTERIO of the violation of Batas Pambansa Blg. 22 as charged for
failure to establish her guilt beyond reasonable doubt.
The Court ORDERS the petitioner to pay to BERNARDO VILLADOLID the
amount of P 50,000.00, representing the face value of Chinabank Check No.
LPU-A0141332, with legal interest of 6% per annum from the filing of the
information until the finality of this decision, and thereafter 12% per annum until
the principal amount ofP50,000.00 is paid.
No pronouncement on costs of suit.