Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President,
HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the
President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang
Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the
principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of implementation and administrative
orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184,
197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358,
359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491,
503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718,
731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 10601061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644,
1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141,
150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205,

209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261,

263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309,
312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386,
396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561,
576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665,
702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,11491178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 13191526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 15901595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 16971701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 18121814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 18431844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,
1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 19862028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549,
551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647,
649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59,
76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436439.
The respondents, through the Solicitor General, would have this case dismissed outright
on the ground that petitioners have no legal personality or standing to bring the instant
petition. The view is submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged non-publication of the
presidential issuances in question 2 said petitioners are without the requisite legal personality to
institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section
3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or

person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or

unlawfully excludes another from the use a rd enjoyment of a right or

office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the act
required to be done to Protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the
defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns
a public right and its object is to compel the performance of a public duty, they need not
show any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino
vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would
be granted to a private individual only in those cases where he has some private or particular interest to
be subserved, or some particular right to be protected, independent of that which he holds with the public
at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right
and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded
as the real party in interest and the relator at whose instigation the proceedings are instituted need not
show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen
and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec.
431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual,
as a proper party to the mandamus proceedings brought to compel the Governor
General to call a special election for the position of municipal president in the town of
Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this
character when a public right is sought to be enforced. If the general rule
in America were otherwise, we think that it would not be applicable to the
case at bar for the reason 'that it is always dangerous to apply a general
rule to a particular case without keeping in mind the reason for the rule,
because, if under the particular circumstances the reason for the rule does
not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'
No reason exists in the case at bar for applying the general rule insisted
upon by counsel for the respondent. The circumstances which surround

this case are different from those in the United States, inasmuch as if the
relator is not a proper party to these proceedings no other person could
be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to
be enforced by petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other person to initiate the same,
considering that the Solicitor General, the government officer generally empowered to
represent the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua
non requirement for the effectivity of laws where the laws themselves provide for their
own effectivity dates. It is thus submitted that since the presidential issuances in
question contain special provisions as to the date they are to take effect, publication in
the Official Gazette is not indispensable for their effectivity. The point stressed is
anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said
article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is
necessary in those cases where the legislation itself does not provide for its effectivity date-for then the
date of publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the

effectivity of laws with the fact of publication. Considered in the light of other statutes
applicable to the issue at hand, the conclusion is easily reached that said Article 2 does
not preclude the requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638
provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations,
except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so published; [4]

such documents or classes of documents as may be required so to be

published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have
general applicability and legal effect, or which he may authorize so to be
published. ...
The clear object of the above-quoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as citizens.
Without such notice and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the debates and deliberations
in the Batasan Pambansaand for the diligent ones, ready access to the legislative
recordsno such publicity accompanies the law-making process of the President.
Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the Supreme Court of
Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be
published in the Official Gazette ... ." The word "shall" used therein imposes upon
respondent officials an imperative duty. That duty must be enforced if the Constitutional
right of the people to be informed on matters of public concern is to be given substance
and reality. The law itself makes a list of what should be published in the Official
Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as
to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose a burden or. the people,
such as tax and revenue measures, fall within this category. Other presidential
issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they
have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or
"of general applicability" is a requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and specifically informed of its
contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which
all form part of the law of the land, the requirement of due process and the
Rule of Law demand that the Official Gazette as the official government
repository promulgate and publish the texts of all such decrees, orders
and instructions so that the people may know where to obtain their official
and specific contents.
The Court therefore declares that presidential issuances of general application, which
have not been published, shall have no force and effect. Some members of the Court,
quite apprehensive about the possible unsettling effect this decision might have on acts
done in reliance of the validity of those presidential decrees which were published only
during the pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or implemented prior to
their publication. The answer is all too familiar. In similar situations in the past this Court
had taken the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is
quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The
actual existence of a statute, prior to such a determination, is an operative
fact and may have consequences which cannot justly be ignored. The
past cannot always be erased by a new judicial declaration. The effect of
the subsequent ruling as to invalidity may have to be considered in various
aspects-with respect to particular conduct, private and official. Questions
of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the
light of the nature both of the statute and of its previous application,
demand examination. These questions are among the most difficult of
those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right
of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was
declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their

publication in the Official Gazette is "an operative fact which may have consequences
which cannot be justly ignored. The past cannot always be erased by a new judicial
declaration ... that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. 10 Neither the subject matters nor the texts of these PDs can be
ascertained since no copies thereof are available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever been implemented or enforced by the
government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication
is necessary to apprise the public of the contents of [penal] regulations and make the said penalties
binding on the persons affected thereby. " The cogency of this holding is apparently recognized by
respondent officials considering the manifestation in their comment that "the government, as a matter of
policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the
Official Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette
all unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would
unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question
would arise if made to apply adversely to a party who is not even aware of the existence
of any legislative or executive act having the force and effect of law. My point is that
such publication required need not be confined to the Official Gazette. From the
pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That
is too be admitted. It does not follow, however, that failure to do so would in all cases
and under all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and effect. To so
hold would, for me, raise a constitutional question. Such a pronouncement would lend
itself to the interpretation that such a legislative or presidential act is bereft of the
attribute of effectivity unless published in the Official Gazette. There is no such
requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what
is decided now applies only to past "presidential issuances". Nonetheless, this
clarification is, to my mind, needed to avoid any possible misconception as to what is
required for any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana.
Its first paragraph sets forth what to me is the constitutional doctrine applicable to this
case. Thus: "The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said
though that the guarantee of due process requires notice of laws to affected Parties
before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement
with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all. 3 It would
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the

doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the
question of what is the jural effect of past presidential decrees or executive acts not so published. For
prior thereto, it could be that parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could attach due to lack of publication in the
Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential
Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not
prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character
becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process
aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential
decree or executive act was issued under the police power, the non-impairment clause of the Constitution
may not always be successfully invoked. There must still be that process of balancing to determine
whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise
then a question of unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm
that publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the
Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as
to laws taking effect after fifteen days following the completion of their publication in the
Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover,
the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not
and cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different
rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin
that presidential decrees and executive acts not thus previously published in the Official
Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
Justice Herrera. The Rule of Law connotes a body of norms and laws published and

ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently
stressed that "it is an elementary rule of fair play and justice that a reasonable
opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation, 1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions,
a law, regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil
Code and the Revised Administrative Code, there would be no basis nor justification for
the corollary rule of Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official repository where they
are duly published) that "Ignorance of the law excuses no one from compliance
therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only
laws which are silent as to their effectivity [date] need be published in the Official
Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the
Civil Code is that "laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different
effectivity date is provided by the law itself. This proviso perforce refers to a law that has
been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise
that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain
respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason,
publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render
nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official
Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the
law itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will
not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute
as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise
provided " Two things may be said of this provision: Firstly, it obviously does not apply to
a law with a built-in provision as to when it will take effect. Secondly, it clearly
recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall
be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for
their effectivity, laws must be published in the Official Gazette. The said law is simply
"An Act to Provide for the Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official Gazette, determines
its frequency, provides for its sale and distribution, and defines the authority of the
Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders
and proclamations, except such as have no general applicability." It is noteworthy that
not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that
publication in the Official Gazette is essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on the same footing. A law, especially an
earlier one of general application such as Commonwealth Act No. 638, cannot nullify or
restrict the operation of a subsequent statute that has a provision of its own as to when
and how it will take effect. Only a higher law, which is the Constitution, can assume that
role.
In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of
such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a
public nature or general applicability ineffective, until due publication thereof.

Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would
unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question
would arise if made to apply adversely to a party who is not even aware of the existence
of any legislative or executive act having the force and effect of law. My point is that
such publication required need not be confined to the Official Gazette. From the
pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That
is too be admitted. It does not follow, however, that failure to do so would in all cases
and under all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and effect. To so
hold would, for me, raise a constitutional question. Such a pronouncement would lend
itself to the interpretation that such a legislative or presidential act is bereft of the
attribute of effectivity unless published in the Official Gazette. There is no such

requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what
is decided now applies only to past "presidential issuances". Nonetheless, this
clarification is, to my mind, needed to avoid any possible misconception as to what is
required for any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana.
Its first paragraph sets forth what to me is the constitutional doctrine applicable to this
case. Thus: "The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said
though that the guarantee of due process requires notice of laws to affected Parties
before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement
with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all. 3 It would
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the
question of what is the jural effect of past presidential decrees or executive acts not so published. For
prior thereto, it could be that parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could attach due to lack of publication in the
Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential
Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not
prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character
becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process
aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential
decree or executive act was issued under the police power, the non-impairment clause of the Constitution
may not always be successfully invoked. There must still be that process of balancing to determine
whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise
then a question of unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm
that publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the
Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as
to laws taking effect after fifteen days following the completion of their publication in the
Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover,

the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not
and cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different
rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin
that presidential decrees and executive acts not thus previously published in the Official
Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
Justice Herrera. The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently
stressed that "it is an elementary rule of fair play and justice that a reasonable
opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation, 1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions,
a law, regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil
Code and the Revised Administrative Code, there would be no basis nor justification for
the corollary rule of Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official repository where they
are duly published) that "Ignorance of the law excuses no one from compliance
therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only
laws which are silent as to their effectivity [date] need be published in the Official
Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the
Civil Code is that "laws shall take effect after fifteen days following the completion of

their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different
effectivity date is provided by the law itself. This proviso perforce refers to a law that has
been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise
that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain
respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason,
publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render
nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official
Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the
law itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will
not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute
as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise
provided " Two things may be said of this provision: Firstly, it obviously does not apply to
a law with a built-in provision as to when it will take effect. Secondly, it clearly
recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall
be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for
their effectivity, laws must be published in the Official Gazette. The said law is simply

"An Act to Provide for the Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official Gazette, determines
its frequency, provides for its sale and distribution, and defines the authority of the
Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders
and proclamations, except such as have no general applicability." It is noteworthy that
not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that
publication in the Official Gazette is essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on the same footing. A law, especially an
earlier one of general application such as Commonwealth Act No. 638, cannot nullify or
restrict the operation of a subsequent statute that has a provision of its own as to when
and how it will take effect. Only a higher law, which is the Constitution, can assume that
role.
In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of
such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a
public nature or general applicability ineffective, until due publication thereof.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 159747

April 13, 2004

GREGORIO B. HONASAN II, petitioner,

vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF
JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND
SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO
MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

On August 4, 2003, an affidavit-complaint was filed with the Department of Justice

(DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part:

2. After a thorough investigation, I found that a crime of coup d'etat was indeed
committed by military personnel who occupied Oakwood on the 27 th day of July
2003 and Senator Gregorio "Gringo"Honasan, II
3.
4. The said crime was committed as follows:
4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan,
Metro Manila, a meeting was held and presided by Senator Honasan. Attached
as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of
this complaint.

4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and
in behalf of the military rebels occupying Oakwood, made a public
statement aired on nation television, stating their withdrawal of support to
the chain of command of the AFP and the Government of President Gloria
Macapagal Arroyo and they are willing to risk their lives in order to achieve
the National Recovery Agenda of Sen. Honasan, which they believe is the
only program that would solve the ills of society. . . . (Emphasis supplied).
The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director
Matillano is quoted verbatim, to wit:
1. That I am a member of the Communication Electronics and Information
Systems Services, Armed Forces of the Philippines with the rank of Major;
2. That I met a certain Captain Gary Alejano of the Presidential Security Guard
(PSG) during our Very Important Person (VIP) Protection Course sometime in
last week of March 2003;
3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet
of the National Recovery Program (NRP) and told me that: "Kailangan ng Bansa
ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito
(referring to NRP) pamphlet. I took the pamphlet but never had the time to read
it;

4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to

join him in a meeting where the NRP would be discussed and that there would be
a special guest;
5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening
of June 4, 2003 in a house located somewhere in San Juan, Metro Manila;
6. That upon arrival we were given a document consisting of about 3-4 pages
containing discussion of issues and concerns within the framework of NRP and
we were likewise served with dinner;
7. That while we were still having dinner at about past 11 o'clock in the evening,
Sen. Gregorio "Gringo" Honasan arrived together with another fellow who was
later introduced as Capt. Turingan;
8. That after Sen. Honasan had taken his dinner, the meeting proper started
presided by Sen. Honasan;
9. That Sen. Honasan discussed the NRP, the graft and corruption in the
government including the military institution, the judiciary, the executive branch
and the like;
10. That the discussion concluded that we must use force, violence and armed
struggle to achieve the vision of NRP. At this point, I raised the argument that it is
my belief that reforms will be achieved through the democratic processes and not
thru force and violence and/or armed struggle. Sen. Honasan countered that "we
will never achieve reforms through the democratic processes because the people
who are in power will not give up their positions as they have their vested
interests to protect." After a few more exchanges of views, Sen. Honasan
appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then
asked whether all those present numbering 30 people, more or less, are really
committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga
kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided
not to pursue further questions;
11. That in the course of the meeting, he presented the plan of action to achieve
the goals of NRP, i.e., overthrow of the government under the present leadership
thru armed revolution and after which, a junta will be constituted and that junta
will run the new government. He further said that some of us will resign from the
military service and occupy civilian positions in the new government. He also said
that there is urgency that we implement this plan and that we would be notified of
the next activities.
12. That after the discussion and his presentation, he explained the rites that we
were to undergo-some sort of "blood compact". He read a prayer that sounded
more like a pledge and we all recited it with raised arms and clenched fists. He

then took a knife and demonstrated how to make a cut on the left upper inner
arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was
done in a way that it actually looked like letter "H". Then, he pressed his right
thumb against the blood and pressed the thumb on the lower middle portion of
the copy of the Prayer. He then covered his thumb mark in blood with tape. He
then pressed the cut on his left arm against the NRP flag and left mark of letter "I"
on it. Everybody else followed;
13. That when my turn came, I slightly made a cut on my upper inner arm and
pricked a portion of it to let it bleed and I followed what Senator HONASAN did;
14. That I did not like to participate in the rites but I had the fear for my life with
what Senator HONASAN said that "kaya nating pumatay ng kasamahan";
15. That after the rites, the meeting was adjourned and we left the place;
16. That I avoided Captain Alejano after that meeting but I was extra cautious
that he would not notice it for fear of my life due to the threat made by Senator
HONASAN during the meeting on June 4, 2003 and the information relayed to
me by Captain Alejano that their group had already deeply established their
network inside the intelligence community;
17. That sometime in the first week of July 2003, Captain Alejano came to see
me to return the rifle that he borrowed and told me that when the group arrives at
the Malacaang Compound for "D-DAY", my task is to switch off the telephone
PABX that serves the Malacaang complex. I told him that I could not do it. No
further conversation ensued and he left;
18. That on Sunday, July 27, 2003, while watching the television, I saw flashed
on the screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain
Alejano and some others who were present during the June 4 th meeting that I
attended, having a press conference about their occupation of the Oakwood
Hotel. I also saw that the letter "I" on the arm bands and the banner is the same
letter "I" in the banner which was displayed and on which we pressed our wound
to leave the imprint of the letter "I";
19. That this Affidavit is being executed in order to attest the veracity of the
foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN,
Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES,
Capt. GERARDO GAMBALA and others for violation of Article 134-A of the
Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied)
The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating
Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a subpoena to
petitioner for preliminary investigation.

On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed
a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting that
since the imputed acts were committed in relation to his public office, it is the Office of
the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding
preliminary investigation; that should the charge be filed in court, it is the
Sandiganbayan, not the regular courts, that can legally take cognizance of the case
considering that he belongs to the group of public officials with Salary Grade 31; and
praying that the proceedings be suspended until final resolution of his motion.
Respondent Matillano submitted his comment/opposition thereto and petitioner filed a
reply.
On September 10, 2003, the DOJ Panel issued an Order, to wit:
On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a
"Motion to Clarify Jurisdiction". On September 1, 2003, complainant filed a
Comment/Opposition to the said motion.
The motion and comment/opposition are hereby duly noted and shall be passed
upon in the resolution of this case.
In the meantime, in view of the submission by complainant of additional
affidavits/evidence and to afford respondents ample opportunity to controvert the
same, respondents, thru counsel are hereby directed to file their respective
counter-affidavits and controverting evidence on or before September 23, 2003. 1
Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule
65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNP-P/Director
Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of
discretion on the part of the DOJ Panel in issuing the aforequoted Order of September
10, 2003 on the ground that the DOJ has no jurisdiction to conduct the preliminary
investigation.
Respondent Ombudsman, the Office of Solicitor General in representation of
respondents DOJ Panel, and Director Matillano submitted their respective comments.
The Court heard the parties in oral arguments on the following issues:
1) Whether respondent Department of Justice Panel of Investigators has
jurisdiction to conduct preliminary investigation over the charge of coup
d'etat against petitioner;
2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and
Republic Act No. 6770 or Ombudsman Act of 1989; and

3) Whether respondent DOJ Panel of Investigators committed grave abuse of

discretion in deferring the resolution of the petitioner's motion to clarify jurisdiction
considering the claim of the petitioner that the DOJ Panel has no jurisdiction to
conduct preliminary investigation.
After the oral arguments, the parties submitted their respective memoranda. The
arguments of petitioner are:
1. The Office of the Ombudsman has jurisdiction to conduct the preliminary
investigation over all public officials, including petitioner.
2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ
Joint Circular No. 95-001 to conduct the preliminary investigation involving
Honasan.
3. Even if deputized, the respondent DOJ Panel is still without authority since
OMB-DOJ Joint Circular No. 95-001 is ultra vires for being violative of the
Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and
inoperative due to lack of publication, hence null and void.
4. Since petitioner is charged with coup de 'etat in relation to his office, it is the
Office of the Ombudsman which has the jurisdiction to conduct the preliminary
investigation.
5. The respondent DOJ Panel gravely erred in deferring the resolution of
petitioner's Motion to Clarify Jurisdiction since the issue involved therein is
determinative of the validity of the preliminary investigation.
6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in
the guise of directing him to submit Counter-Affidavit and yet refused and/or
failed to perform its duties to resolve petitioner's Motion stating its legal and
factual bases.
The arguments of respondent DOJ Panel are:
1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner
pursuant to Section 3, Chapter I, Title III, Book IV of the Revised Administrative
Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513.
2. Petitioner is charged with a crime that is not directly nor intimately related to
his public office as a Senator. The factual allegations in the complaint and the
supporting affidavits are bereft of the requisite nexus between petitioner's office
and the acts complained of.
3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a
ground to question the jurisdiction of the DOJ over the complaint below, is

misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised
Administrative Code. It is not derived from any provision of the joint circular which
embodies the guidelines governing the authority of both the DOJ and the Office
of the Ombudsman to conduct preliminary investigation on offenses charged in
relation to public office.
4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify
jurisdiction which, for all intents and purposes, is actually a motion to dismiss that
is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of
Criminal Procedure. The DOJ Panel is not required to act or even recognize it
since a preliminary investigation is required solely for the purpose of determining
whether there is a sufficient ground to engender a well founded belief that a
crime has been committed and the respondent is probably guilty thereof and
should be held for trial. The DOJ panel did not outrightly reject the motion of
petitioner but ruled to pass upon the same in the determination of the probable
cause; thus, it has not violated any law or rule or any norm of discretion.
The arguments of respondent Ombudsman are:
1. The DOJ Panel has full authority and jurisdiction to conduct preliminary
investigation over the petitioner for the reason that the crime of coup d'etat under
Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction
of the Sandiganbayan only if the same is committed "in relation to office" of
petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975
and R.A. No. 8249.
2. Petitioner's premise that the DOJ Panel derives its authority to conduct
preliminary investigation over cases involving public officers solely from the
OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent
authority with the OMB to conduct preliminary investigation of cases involving
public officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627
[1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal
Procedure.
3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot
be deputized by the Ombudsman en masse but must be given in reference to
specific cases has no factual or legal basis. There is no rule or law which
requires the Ombudsman to write out individualized authorities to deputize
prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ
prosecutors proceeds from the Constitutional grant of power to request
assistance from any government agency necessary to discharge its functions, as
well as from the statutory authority to so deputize said DOJ prosecutors under
Sec. 31 of RA 6770.
4. The Joint Circular which is an internal arrangement between the DOJ and the
Office of the Ombudsman need not be published since it neither contains a penal

provision nor does it prescribe a mandatory act or prohibit any under pain or
penalty. It does not regulate the conduct of persons or the public, in general.
The Court finds the petition without merit.
The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular
No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title
III, Book IV, governing the DOJ, which provides:
Sec. 1. Declaration of policy - It is the declared policy of the State to provide the
government with a principal law agency which shall be both its legal counsel
and prosecution arm; administer the criminal justice system in accordance with
the accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system;
Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall
have the following powers and functions:

(2) Investigate the commission of crimes, prosecute offenders and

administer the probation and correction system; (Emphasis supplied)
and Section 1 of P.D. 1275, effective April 11, 1978, to wit:
SECTION 1. Creation of the National Prosecution Service; Supervision and
Control of the Secretary of Justice. There is hereby created and established a
National Prosecution Service under the supervision and control of the Secretary
of Justice, to be composed of the Prosecution Staff in the Office of the Secretary
of Justice and such number of Regional State Prosecution Offices, and Provincial
and City Fiscal's Offices as are hereinafter provided, which shall be primarily
responsible for the investigation and prosecution of all cases involving
violations of penal laws. (Emphasis supplied)
Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to
conduct the preliminary investigation under paragraph (1), Section 13, Article XI of the
1987 Constitution, which confers upon the Office of the Ombudsman the power
to investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987 Administrative
Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to
Article 7 of the Civil Code, which provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution.
and Mabanag vs. Lopez Vito.2
The Court is not convinced. Paragraph (1) of Section 13, Article XI of the
Constitution, viz:
SEC. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
1. Investigate on its own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
does not exclude other government agencies tasked by law to investigate and
prosecute cases involving public officials. If it were the intention of the framers of the
1987 Constitution, they would have expressly declared the exclusive conferment of the
power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the
Constitution provides:
(8) Promulgate its rules of procedure and exercise such other powers or perform
such functions or duties as may be provided by law.
Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of
1989." Section 15 thereof provides:
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall
have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act
or omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from
any investigatory agency of the government, the investigation of such
cases.
. (Emphasis supplied)
Pursuant to the authority given to the Ombudsman by the Constitution and the
Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the

Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990,

entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit:
A complaint filed in or taken cognizance of by the Office of the Ombudsman
charging any public officer or employee including those in government-owned or
controlled corporations, with an act or omission alleged to be illegal, unjust,
improper or inefficient is an Ombudsman case. Such a complaint may be the
subject of criminal or administrative proceedings, or both.
For purposes of investigation and prosecution, Ombudsman cases
involving criminal offenses may be subdivided into two classes, to wit: (1)
those cognizable by the Sandiganbayan, and (2) those falling under the
jurisdiction of the regular courts. The difference between the two, aside
from the category of the courts wherein they are filed, is on the authority to
investigate as distinguished from the authority to prosecute, such cases.
The power to investigate or conduct a preliminary investigation on any
Ombudsman case may be exercised by an investigator or prosecutor of the
Office of the Ombudsman, or by any Provincial or City Prosecutor or their
assistance, either in their regular capacities or as deputized Ombudsman
prosecutors.
The prosecution of cases cognizable by the Sandiganbayan shall be under
the direct exclusive control and supervision of the Office of the
Ombudsman. In cases cognizable by the regular Courts, the control and
supervision by the Office of the Ombudsman is only in Ombudsman cases
in the sense defined above. The law recognizes a concurrence of
jurisdiction between the Office of the Ombudsman and other investigative
agencies of the government in the prosecution of cases cognizable by
regular courts. (Emphasis supplied)
It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the
authority to investigate cases from the authority to prosecute cases. It is on this note
that the Court will first dwell on the nature or extent of the authority of the Ombudsman
to investigate cases. Whence, focus is directed to the second sentence of paragraph
(1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman
has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from any
investigating agency of the government, the investigation of such cases.
That the power of the Ombudsman to investigate offenses involving public officers or
employees is not exclusive but is concurrent with other similarly authorized agencies of
the government such as the provincial, city and state prosecutors has long been settled
in several decisions of the Court.

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990,

the Court expressly declared:
A reading of the foregoing provision of the Constitution does not show that the
power of investigation including preliminary investigation vested on the
Ombudsman is exclusive.3
Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the
Ombudsman Act, the Court held in said case:
Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has
primary jurisdiction over cases cognizable by the Sandiganbayan so that it may
take over at any stage from any investigatory agency of the government, the
investigation of such cases. The authority of the Ombudsman to investigate
offenses involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the
government. Such investigatory agencies referred to include the PCGG and
the provincial and city prosecutors and their assistants, the state
prosecutors and the judges of the municipal trial courts and municipal
circuit trial court.
In other words the provision of the law has opened up the authority to
conduct preliminary investigation of offenses cognizable by the
Sandiganbayan to all investigatory agencies of the government duly
authorized to conduct a preliminary investigation under Section 2, Rule 112
of the 1985 Rules of Criminal Procedure with the only qualification that the
Ombudsman may take over at any stage of such investigation in the
exercise of his primary jurisdiction.4 (Emphasis supplied)
A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the
Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has
jurisdiction to investigate any crime committed by a public official, elucidating thus:
As protector of the people, the office of the Ombudsman has the power, function
and duty to "act promptly on complaints filed in any form or manner against
public officials" (Sec. 12) and to "investigate x x x any act or omission of any
public official x x x when such act or omission appears to be illegal, unjust,
improper or inefficient." (Sec. 13[1].) The Ombudsman is also empowered to
"direct the officer concerned," in this case the Special Prosecutor, "to take
appropriate action against a public official x x x and to recommend his
prosecution" (Sec. 13[3]).
The clause "any [illegal] act or omission of any public official" is broad enough to
embrace any crime committed by a public official. The law does not qualify the
nature of the illegal act or omission of the public official or employee that the
Ombudsman may investigate. It does not require that the act or omission be

related to or be connected with or arise from, the performance of official duty.

Since the law does not distinguish, neither should we.
The reason for the creation of the Ombudsman in the 1987 Constitution and for
the grant to it of broad investigative authority, is to insulate said office from the
long tentacles of officialdom that are able to penetrate judges' and fiscals' offices,
and others involved in the prosecution of erring public officials, and through the
exertion of official pressure and influence, quash, delay, or dismiss investigations
into malfeasances and misfeasances committed by public officers. It was
deemed necessary, therefore, to create a special office to investigate all criminal
complaints against public officers regardless of whether or not the acts or
omissions complained of are related to or arise from the performance of the
duties of their office. The Ombudsman Act makes perfectly clear that the
jurisdiction of the Ombudsman encompasses "all kinds of malfeasance,
misfeasance, and non-feasance that have been committed by any officer or
employee as mentioned in Section 13 hereof, during his tenure of office" (Sec.
16, R.A. 6770).
.........
Indeed, the labors of the constitutional commission that created the Ombudsman
as a special body to investigate erring public officials would be wasted if its
jurisdiction were confined to the investigation of minor and less grave offenses
arising from, or related to, the duties of public office, but would exclude those
grave and terrible crimes that spring from abuses of official powers and
prerogatives, for it is the investigation of the latter where the need for an
independent, fearless, and honest investigative body, like the Ombudsman, is
greatest.6
At first blush, there appears to be conflicting views in the rulings of the Court in
the Cojuangco, Jr. case and theDeloso case. However, the contrariety is more apparent
than real. In subsequent cases, the Court elucidated on the nature of the powers of the
Ombudsman to investigate.
In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the
Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission of
any public official, the authority of the Ombudsman to investigate is merely a primary
and not an exclusive authority, thus:
The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA
6770 to investigate and prosecute any illegal act or omission of any public
official. However as we held only two years ago in the case of Aguinaldo vs.
Domagas,8 this authority "is not an exclusive authority but rather a shared or
concurrent authority in respect of the offense charged."

Petitioners finally assert that the information and amended information filed in
this case needed the approval of the Ombudsman. It is not disputed that the
information and amended information here did not have the approval of the
Ombudsman. However, we do not believe that such approval was necessary at
all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held that the
Ombudsman has authority to investigate charges of illegal acts or omissions on
the part of any public official, i.e., any crime imputed to a public official. It must,
however, be pointed out that the authority of the Ombudsman to
investigate "any [illegal] act or omission of any public official" (191 SCRA
550) is not an exclusive authority but rather a shared or concurrent
authority in respect of the offense charged, i.e., the crime of sedition. Thus,
the non-involvement of the office of the Ombudsman in the present case does
not have any adverse legal consequence upon the authority of the panel of
prosecutors to file and prosecute the information or amended information.
In fact, other investigatory agencies of the government such as the
Department of Justice in connection with the charge of sedition, and the
Presidential Commission on Good Government, in ill gotten wealth cases,
may conduct the investigation.9 (Emphasis supplied)
In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended
that it is the Ombudsman and not the provincial fiscal who has the authority to conduct a
preliminary investigation over his case for alleged Murder, the Court held:
The Deloso case has already been re-examined in two cases, namely Aguinaldo
vs. Domagas andSanchez vs. Demetriou. However, by way of amplification, we
feel the need for tracing the history of the legislation relative to the jurisdiction of
Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the
cases cognizable by the former.
In the process, we shall observe how the policy of the law, with reference to the
subject matter, has been in a state of flux.
These laws, in chronological order, are the following: (a) Pres. Decree No. 1486,
-- the first law on the Sandiganbayan; (b) Pres. Decree No. 1606 which expressly
repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d)
Pres. Decree No. 1860; and (e) Pres. Decree No. 1861.
The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as
follows:
"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby
amended to read as follows:
'SEC. 4. Jurisdiction. The Sandiganbayan shall exercise:

'(a) Exclusive original jurisdiction in all cases involving:

...
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporation, whether simple or
complexed with other crimes, where the penalty prescribed by law
is higher thatprision correccional or imprisonment for six (6) years,
or a fine of P6,000: PROVIDED, HOWEVER, that offenses or
felonies mentioned in this paragraph where the penalty prescribed
by law does not exceed prision correccional or imprisonment for six
(6) years or a fine of P6,000 shall be tried by the proper Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court and
Municipal Circuit Trial Court."
A perusal of the aforecited law shows that two requirements must concur under
Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction,
namely: the offense committed by the public officer must be in relation to his
office and the penalty prescribed be higher then prision correccional or
imprisonment for six (6) years, or a fine of P6,000.00.11
Applying the law to the case at bench, we find that although the second
requirement has been met, the first requirement is wanting. A review of these
Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the
crime committed by public officers or employees must be "in relation to their
office" if it is to fall within the jurisdiction of the Sandiganbayan. This phrase
which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree
No. 1861 as a requirement before the Ombudsman can acquire primary
jurisdiction on its power to investigate.
It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article
XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of
1989 because, as earlier mentioned, the Ombudsman's power to investigate
is dependent on the cases cognizable by the Sandiganbayan. Statutes are
in pari materia when they relate to the same person or thing or to the same
class of persons or things, or object, or cover the same specific or
particular subject matter.
It is axiomatic in statutory construction that a statute must be interpreted,
not only to be consistent with itself, but also to harmonize with other laws
on the same subject matter, as to form a complete, coherent and intelligible
system. The rule is expressed in the maxim, "interpretare et concordare
legibus est optimus interpretandi," or every statute must be so construed
and harmonized with other statutes as to form a uniform system of
jurisprudence. Thus, in the application and interpretation of Article XI,

Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of

1989, Pres. Decree No. 1861 must be taken into consideration. It must be
assumed that when the 1987 Constitution was written, its framers had in
mind previous statutes relating to the same subject matter. In the absence
of any express repeal or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in accord with existing statute,
specifically, Pres. Decree No. 1861.12 (Emphasis supplied)
R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law
(P.D. 1861) likewise provides that for other offenses, aside from those enumerated
under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the
Sandiganbayan, they must have been committed by public officers or employees in
relation to their office.
In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section
4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive
jurisdiction to investigate offenses committed by public officers or employees. The
authority of the Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating agencies such as
provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its
primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any
stage, from any investigating agency of the government, the investigation of such
cases.
In other words, respondent DOJ Panel is not precluded from conducting any
investigation of cases against public officers involving violations of penal laws but if the
cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent
Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have
concurrent jurisdiction to conduct preliminary investigation, the respective heads of said
offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of
their respective prosecutors in the conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF
THE OFFICE OF THE OMBUDSMAN
ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,
PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE
PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT
OF JUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS

AND EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION,
PREPARATION OF RESOLUTIONS AND INFORMATIONS AND
PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND
THEIR ASSISTANTS.
x-------------------------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the supreme court on the extent to which the ombudsman
may call upon the government prosecutors for assistance in the investigation and
prosecution of criminal cases cognizable by his office and the conditions under
which he may do so. Also discussed was Republic Act No. 7975 otherwise known
as "an act to strengthen the functional and structural organization of the
sandiganbayan, amending for the purpose presidential decree no. 1606, as
amended" and its implications on the jurisdiction of the office of the Ombudsman
on criminal offenses committed by public officers and employees.
Concerns were expressed on unnecessary delays that could be caused by
discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the
department of justice, and by procedural conflicts in the filing of complaints
against public officers and employees, the conduct of preliminary investigations,
the preparation of resolutions and informations, and the prosecution of cases by
provincial and city prosecutors and their assistants as deputized prosecutors of
the ombudsman.
Recognizing the concerns, the office of the ombudsman and the department of
justice, in a series of consultations, have agreed on the following guidelines to be
observed in the investigation and prosecution of cases against public officers and
employees:
1. Preliminary investigation and prosecution of offenses committed by public
officers and employees in relation to office whether cognizable by the
sandiganbayan or the regular courts, and whether filed with the office of the
ombudsman or with the office of the provincial/city prosecutor shall be under the
control and supervision of the office of the ombudsman.
2. Unless the Ombudsman under its Constitutional mandate finds reason to
believe otherwise, offenses not in relation to office and cognizable by the regular
courts shall be investigated and prosecuted by the office of the provincial/city
prosecutor, which shall rule thereon with finality.
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation. Resolutions

recommending prosecution together with the duly accomplished criminal

informations shall be forwarded to the appropriate approving authority.
4. Considering that the office of the ombudsman has jurisdiction over public
officers and employees and for effective monitoring of all investigations and
prosecutions of cases involving public officers and employees, the office of the
provincial/city prosecutor shall submit to the office of the ombudsman a monthly
list of complaints filed with their respective offices against public officers and
employees.
Manila, Philippines, October 5, 1995.

(signed)

(signed)

TEOFISTO T. GUINGONA,
JR.
Secretary
Department of Justice

ANIANO A. DESIERTO
Ombudsman
Office of the Ombudsman

A close examination of the circular supports the view of the respondent Ombudsman
that it is just an internal agreement between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary
Investigation, effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigationsThe following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating
prosecutor finds cause to hold the respondent for trial, he shall prepare the
resolution and information, He shall certify under oath in the information that he,

or as shown by the record, an authorized officer, has personally examined the

complainant and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof; that
the accused was informed of the complaint and of the evidence submitted
against him; and that he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman
or his deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act on the resolution within ten
(10) days from their receipt thereof and shall immediately inform the parties of
such action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial
or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.
Where the investigating prosecutor recommends the dismissal of the complaint
but his recommendation is disapproved by the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy on the ground that a
probable cause exists, the latter may, by himself file the information against the
respondent, or direct another assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice
may prescribe or motu proprio, the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to the parties. The same
Rule shall apply in preliminary investigations conducted by the officers of the
Office of the Ombudsman. (Emphasis supplied)
confirm the authority of the DOJ prosecutors to conduct preliminary investigation of
criminal complaints filed with them for offenses cognizable by the proper court within
their respective territorial jurisdictions, including those offenses which come within the
original jurisdiction of the Sandiganbayan; but with the qualification that in offenses
falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after
their investigation, transmit the records and their resolutions to the Ombudsman
or his deputy for appropriate action. Also, the prosecutor cannot dismiss the
complaint without the prior written authority of the Ombudsman or his deputy, nor can
the prosecutor file an Information with the Sandiganbayan without being deputized by,
and without prior written authority of the Ombudsman or his deputy.

Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing
that the Office of the Ombudsman has deputized the prosecutors of the DOJ to conduct
the preliminary investigation of the charge filed against him.
We find no merit in this argument. As we have lengthily discussed, the Constitution, the
Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman,
the prevailing jurisprudence and under the Revised Rules on Criminal Procedure, all
recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to
conduct preliminary investigation on charges filed against public officers and
employees.
To reiterate for emphasis, the power to investigate or conduct preliminary investigation
on charges against any public officers or employees may be exercised by an
investigator or by any provincial or city prosecutor or their assistants, either in their
regular capacities or as deputized Ombudsman prosecutors. The fact that all
prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ
Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by
the Ombudsman to conduct the preliminary investigation for complaints filed with it
because the DOJ's authority to act as the principal law agency of the government and
investigate the commission of crimes under the Revised Penal Code is derived from the
Revised Administrative Code which had been held in the Natividad case13 as not being
contrary to the Constitution. Thus, there is not even a need to delegate the conduct of
the preliminary investigation to an agency which has the jurisdiction to do so in the first
place. However, the Ombudsman may assert its primary jurisdiction at any stage of the
investigation.
Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the
ground that it was not published is not plausible. We agree with and adopt the
Ombudsman's dissertation on the matter, to wit:
Petitioner appears to be of the belief, although NOT founded on a proper reading
and application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an
internal arrangement between the DOJ and the Office of the Ombudsman, has to
be published.
As early as 1954, the Honorable Court has already laid down the rule in the case
of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and
regulations which prescribe a penalty for its violation should be published before
becoming effective, this, on the general principle and theory that before the
public is bound by its contents, especially its penal provision, a law, regulation or
circular must first be published and the people officially and specifically informed
of said contents and its penalties: said precedent, to date, has not yet been
modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain
any penal provision or prescribe a mandatory act or prohibit any, under pain or
penalty.

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the
Honorable Court ruled that:
Interpretative regulations and those merely internal in nature, that is, regulating
only the personnel of the administrative agency and not the public, need not be
published. Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties. (at page 454.
emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the
DOJ and the Office of the Ombudsman, outlining authority and responsibilities
among prosecutors of the DOJ and of the Office of the Ombudsman in the
conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES
NOT regulate the conduct of persons or the public, in general.
Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint
Circular No. 95-001 has to be published. 14
Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary
investigation because petitioner is a public officer with salary Grade 31 so that the case
against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering
the Court's finding that the DOJ has concurrent jurisdiction to investigate charges
against public officers, the fact that petitioner holds a Salary Grade 31 position does not
by itself remove from the DOJ Panel the authority to investigate the charge of coup
d'etat against him.
The question whether or not the offense allegedly committed by petitioner is one of
those enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of
the Sandiganbayan will not be resolved in the present petition so as not to pre-empt the
result of the investigation being conducted by the DOJ Panel as to the questions
whether or not probable cause exists to warrant the filing of the information against the
petitioner; and to which court should the information be filed considering the presence of
other respondents in the subject complaint.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Panganiban, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna,
and Tinga, JJ., concur.
Puno, J., joins J. Ynares-Santiago.
Vitug, J., see separate dissenting opinion.
Quisumbing, J., joins the dissent.
Ynares-Santiago, J., see separate dissenting opinion.
Sandoval-Gutierrez, J., see dissenting opinion.

SEPARATE OPINION
VITUG, J.:
Preliminary investigation is an initial step in the indictment of an accused; it is a
substantive right, not merely a formal or a technical requirement, 1 which an accused can
avail himself of in full measure. Thus, an accused is entitled to rightly assail the conduct
of an investigation that does not accord with the law. He may also question the
jurisdiction or the authority of the person or agency conducting that investigation and, if
bereft of such jurisdiction or authority, to demand that it be undertaken strictly in
conformity with the legal prescription.2
The Ombudsman is empowered3 to, among other things, investigate and prosecute on
its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may, at any stage,
take over from any agency of Government the investigation of such cases. This
statutory provision, by and large, is a restatement of the constitutional grant to the
Ombudsman of the power to investigate and prosecute "any act or omission of any
public officer or employee, office or agency, when such act or omission appears to be
illegal x x x."4
The Panel of Investigating Prosecutors of the Department of Justice, in taking
cognizance of the preliminary investigation on charges of coup d'etat against petitioner
Gregorio Honasan, relies on OMB-DOJ Circular No. 95-001. That joint circular must be
understood as being merely a working arrangement between the Office of the
Ombudsman (OMB) and the Department of Justice (DOJ) that must not be meant to be
such a blanket delegation to the DOJ as to generally allow it to conduct preliminary
investigation over any case cognizable by the OMB.
While Section 31 of Republic Act No. 6770 states that the Ombudsman may "designate
or deputize any fiscal, state prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation and prosecution of certain
cases," the provision cannot be assumed, however, to be an undefined and broad
entrustment of authority. If it were otherwise, it would be unable to either withstand the
weight of burden to be within constitutional parameters or the proscription against
undue delegation of powers. The deputized fiscal, state prosecutor or government
lawyer must in each instance be named; the case to which the deputized official is
assigned must be specified; and the investigation must be conducted under the
supervision and control of the Ombudsman. The Ombudsman remains to have the
basic responsibility, direct or incidental, in the investigation and prosecution of such
cases.

The Sandiganbayan law5 grants to the Sandiganbayan exclusive original jurisdiction

over offenses or felonies, whether simple or complexed with other crimes, committed by
the public officials, including members of Congress, in relation to their office. The crime
of coup d'etat, with which petitioner, a member of the Senate, has been charged, is said
to be closely linked to his "National Recovery Program," a publication which encapsules
the bills and resolutions authored or sponsored by him on the senate floor. I see the
charge as being then related to and bearing on his official function.
On the above score, I vote to grant the petition.

DISSENTING OPINION
YNARES-SANTIAGO, J.:
The first question to answer is which court has jurisdiction to try a Senator who is
accused of coup d'etat. Behind the simple issue is a more salient question - Should this
Court allow an all too restrictive and limiting interpretation of the law rather than take a
more judicious approach of interpreting the law by the spirit, which vivifies, and not by
the letter, which killeth?
The elemental thrust of the Majority view is that the Department of Justice (DOJ),
not the Office of the Ombudsman, has the jurisdiction to investigate the
petitioner, a Senator, for the crime of coup d'etatpursuant to Section 4 of
Presidential Decree No. 1606 as amended by Republic Act No. 8249
(Sandiganbayan Law). The Majority maintains that since the crime for which
petitioner is charged falls under Section 4, paragraph (b) of the Sandiganbayan
Law, it is imperative to show that petitioner committed the offense in relation
to his office as Senator. It reasoned that since petitioner committed the felonious
acts, as alleged in the complaint, not in connection with or in relation to his public
office, it is the DOJ, and not the Office of the Ombudsman, which is legally
tasked to conduct the preliminary investigation.
In light of the peculiar circumstances prevailing in the instant case and in
consideration of the policies relied upon by the Majority, specifically, the
Sandiganbayan Law and Republic Act No. 6770 (The Ombudsman Act of 1989), I
submit that the posture taken by the Majority seriously deviates from and renders
nugatory the very intent for which the laws were enacted.
The crime of coup d'etat, if committed by members of Congress or by a public
officer with a salary grade above 27, falls within the exclusive original jurisdiction
of the Sandiganbayan. Section 4 of P.D. 1606, as amended, provides:

Sec. 4. Jurisdiction.- The Sandiganbayan shall exercise exclusive original

jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the commission
of the offense:
xxxxxxxxx
(2) Members of Congress and officials thereof classified as Grade "27" and up
under the Compensation and Position Classification Act of 1989;
x x x x x x x x x.
In the case of Lacson v. Executive Secretary,1 we clarified the exclusive original
jurisdiction of the Sandiganbayan pursuant to Presidential Decree ("PD") No. 1606, as
amended by Republic Act ("RA") Nos. 7975 and 8249, and made the following definitive
pronouncements:
Considering that herein petitioner and intervenors are being charged with murder
which is a felony punishable under Title VIII of the Revised Penal Code, the
governing provision on the jurisdictional offense is not paragraph but paragraph
b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or
felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection a of [Section 4, R.A. 8249] in
relation to their office." The phrase "other offenses or felonies" is too broad as to
include the crime of murder, provided it was committed in relation to the
accused's official functions. Thus, under said paragraph b, what determines the
Sandiganbayan's jurisdiction is the official position or rank of the offender that
is, whether he is one of those public officers or employees enumerated in
paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of
the same Section 4 do not make any reference to the criminal participation of the
accused public officer as to whether he is charged as a principal, accomplice or
accessory. In enacting R.A. 8249, the Congress simply restored the original
provisions of P.D. 1606 which does not mention the criminal participation of the
public officer as a requisite to determine the jurisdiction of the Sandiganbayan.
As worded, the Sandiganbayan Law requires that for a felony, coup d'etat in this case,
to fall under the exclusive jurisdiction of the Sandiganbayan, two requisites must concur,
namely: (1) that the public officer or employee occupies the position corresponding to
Salary Grade 27 or higher; and (2) that the crime is committed by the public officer or
employee in relation to his office. Applying the law to the case at bar, the Majority found

that although the first requirement has been met, the second requirement is wanting. I
disagree.
Following its definition, coup d'etat can only be committed by members of the military or
police or holding any public office or employment, with or without civilian support. Article
134-A of the Revised Penal Code states:
Article 134-A. Coup d'etat. How committed. The crime of coup d'etat is a swift
attack accompanied by violence, intimidation, threat, strategy or stealth, directed
against duly constituted authorities of the Republic of the Philippines, or any
military camp or installation, communications network, public utilities or other
facilities needed for the exercise and continued possession of power, singly or
simultaneously carried out anywhere in the Philippines by any person or persons,
belonging to the military or police or holding any public office or employment, with
or without civilian support or participation for the purpose of seizing or
diminishing state power.
A coup consists mainly of the military personnel and public officers and employees
seizing the controlling levers of the state, which is then used to displace the government
from its control of the remainder. As defined, it is a swift attack directed against the duly
constituted authorities or vital facilities and installations to seize state power. It is
therefore inherent in coup d'etat that the crime be committed "in relation to" the office of
a public officer or employee. The violence, intimidation, threat, strategy or stealth which
are inherent in the crime can only be accomplished by those who possess a degree of
trust reposed on such person in that position by the Republic of the Philippines. It is by
exploiting this trust that the swift attack can be made. Since the perpetrators take
advantage of their official positions, it follows that coup d'etat can be committed only
through acts directly or intimately related to the performance of official functions, and
the same need not be proved since it inheres in the very nature of the crime itself.
It is contended by public respondent that the crime of coup d'etat cannot be committed
"in relation" to petitioner's office, since the performance of legislative functions does not
include its commission as part of the job description. To accommodate this reasoning
would be to render erroneous this Court's ruling in People v. Montejo2 that "although
public office is not an element of the crime of murder in [the] abstract," the facts in a
particular case may show that ". . . the offense therein charged is intimately connected
with [the accuseds'] respective offices and was perpetrated while they were in the
performance, though improper or irregular, of their official functions." Simply put, if
murder can be committed in the performance of official functions, so can the
crime of coup d'etat.
The Ombudsman is wrong when he says that legislative function is only "to make laws,
and to alter and repeal them." The growing complexity of our society and governmental
structure has so revolutionized the powers and duties of the legislative body such that
its members are no longer confined to making laws. They can perform such other
functions, which are, strictly speaking, not within the ambit of the traditional legislative

powers, for instance, to canvass presidential elections, give concurrence to treaties, to

propose constitutional amendments as well as oversight functions. As an incident
thereto and in pursuance thereof, members of Congress may deliver privilege
speeches, interpellations, or simply inform and educate the public in respect to certain
proposed legislative measures.
The complaint alleges that the meeting on June 4, 2003 of the alleged coup plotters
involved a discussion on the issues and concerns within the framework of the National
Recovery Program (NRP), a bill which petitioner authored in the Senate. The act of the
petitioner in ventilating the ails of the society and extolling the merits of the NRP is part
of his duties as legislator not only to inform the public of his legislative measures but
also, as a component of the national leadership, to find answers to the many problems
of our society. One can see therefore that Senator Honasan's acts were "in relation to
his office."
It is true that not every crime committed by a high-ranking public officer falls within the
exclusive original jurisdiction of the Sandiganbayan. It is also true that there is no public
office or employment that includes the commission of a crime as part of its job
description. However, to follow this latter argument would mean that there would
be no crime falling under Section 4, paragraph (b) PD No. 1606, as amended. This
would be an undue truncation of the Sandiganbayan's exclusive original jurisdiction and
contrary to the plain language of the provision.
Only by a reasonable interpretation of the scope and breadth of the term "offense
committed in relation to [an accused's] office" in light of the broad powers and functions
of the office of Senator, can we subserve the very purpose for which the Sandiganbayan
and the Office of the Ombudsman were created.
The raison d' etre for the creation of the Office of the Ombudsman in the 1987
Constitution and for the grant of its broad investigative authority, is to insulate said office
from the long tentacles of officialdom that are able to penetrate judges' and fiscals'
offices, and others involved in the prosecution of erring public officials, and through the
exertion of official pressure and influence, quash, delay, or dismiss investigations into
malfeasances, and misfeasances committed by public officers. 3
In similar vein, the Constitution provides for the creation of the Sandiganbayan to attain
the highest norms of official conduct required of public officers and employees. It is a
special court that tries cases involving public officers and employees that fall within
specific salary levels. Thus, section 4 of the Sandiganbayan Law makes it a
requirement that for offenses to fall under the exlusive jurisdiction of the
Sandiganbayan, the public officer involved must occupy a position equivalent to Salary
Grade 27 or higher. This salary grade requirement is not a product of whim or an empty
expression of fancy, but a way to ensure that offenses which spring from official abuse
will be tried by a judicial body insulated from official pressure and unsusceptible to the
blandishments, influence and intimidation from those who seek to subvert the ends of
justice.

If we were to give our assent to respondent's restrictive interpretation of the term "in
relation to his office," we would be creating an awkward situation wherein a powerful
member of Congress will be investigated by the DOJ which is an adjunct of the
executive department, and tried by a regular court which is much vulnerable to outside
pressure. Contrarily, a more liberal approach would bring the case to be investigated
and tried by specialized Constitutional bodies and, thus ensure the integrity of the
judicial proceedings.
Second, the "primary jurisdiction" of the Office of the Ombudsman to conduct the
preliminary investigation of an offense within the exclusive original jurisdiction of the
Sandiganbayan operates as a mandate on the Office of the Ombudsman, especially
when the person under investigation is a member of Congress. The Ombudsman's
refusal to exercise such authority, relegating the conduct of the preliminary investigation
of I.S. No. 2003-1120 to the respondent Investigating Panel appointed by the
Department of Justice ("DOJ") under DOJ Department Order No. 279, s. 2003, is a
dereliction of a duty imposed by no less than the Constitution.
Insofar as the investigation of said crimes is concerned, I submit that the same belongs
to the primary jurisdiction of the Ombudsman. R.A. No. 6770 or the Ombudsman Act of
1989, empowers the Ombudsman to conduct the investigation of cases involving illegal
acts or omissions committed by any public officer or employee. Section 15, paragraph
(1) of the Ombudsman Act of 1989 provides:
SECTION 15. Powers, Functions and Duties. The Office of the Ombudsman
shall have the following powers, functions and duties:
1. Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take
over, at any stage, from any investigatory agency of Government, the
investigation of such cases; x x x.4
In Uy v. Sandiganbayan,5 the extent and scope of the jurisdiction of the Office of the
Ombudsman to conduct investigations was described as:
The power to investigate and to prosecute granted by law to the Ombudsman is
plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the
clause "any illegal act or omission of any public official" is broad enough to
embrace any crime committed by a public officer or employee.

The reference made by RA 6770 to cases cognizable by the Sandiganbayan,

particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan, and Section 11 (4) granting the Special
Prosecutor the power to conduct preliminary investigation and prosecute criminal
cases within the jurisdiction of the Sandiganbayan, should not be construed as
confining the scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
The "primary jurisdiction" of the Office of the Ombudsman in cases cognizable by the
Sandiganbayan was reiterated in Laurel v. Desierto:6
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman "to take over, at any stage, from any investigatory
agency of the government, the investigation of such cases." The grant of this
authority does not necessarily imply the exclusion from its jurisdiction of cases
involving public officers and employees cognizable by other courts. The exercise
by the Ombudsman of his primary jurisdiction over cases cognizable by the
Sandiganbayan is not incompatible with the discharge of his duty to investigate
and prosecute other offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and employees
during their tenure of office.
"Primary Jurisdiction" usually refers to cases involving specialized disputes where the
practice is to refer the same to an administrative agency of special competence in
observance of the doctrine of primary jurisdiction. This Court has said that it cannot or
will not determine a controversy involving a question which is within the jurisdiction of
the administrative tribunal before the question is resolved by the administrative tribunal,
where the question demands the exercise of sound administrative discretion requiring
the special knowledge, experience and services of the administrative tribunal to
determine technical and intricate matters of fact, and a uniformity of ruling is essential to
comply with the premises of the regulatory statute administered. 7 The objective of the
doctrine of primary jurisdiction is "to guide a court in determining whether it should
refrain from exercising its jurisdiction until after an administrative agency has
determined some question or some aspect of some question arising in the proceeding
before the court."8 It applies where a claim is originally cognizable in the courts and
comes into play whenever enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, has been placed within the special competence of
an administrative body; in such case, the judicial process is suspended pending referral
of such issues to the administrative body for its view.9
Where the concurrent authority is vested in both the Department of Justice and the
Office of the Ombudsman, the doctrine of primary jurisdiction should operate to restrain
the Department of Justice from exercising its investigative authority if the case will likely

be cognizable by the Sandiganbayan. In such cases, the Office of the Ombudsman

should be the proper agency to conduct the preliminary investigation over such an
offense, it being vested with the specialized competence and undoubted probity to
conduct the investigation.
The urgent need to follow the doctrine is more heightened in this case where the
accused is a member of Congress. The DOJ is under the supervision and control of the
Office of the President; in effect, therefore, the investigation would be conducted by the
executive over a member of a co-equal branch of government. It is precisely for this
reason that the independent constitutional Office of the Ombudsman should conduct the
preliminary investigation. Senator Honasan is a member of the political opposition. His
right to a preliminary investigation by a fair and uninfluenced body is sacred and should
not be denied. As we stated in the Uy case:
The prosecution of offenses committed by public officers and employees is one
of the most important functions of the Ombudsman. In passing RA 6770, the
Congress deliberately endowed the Ombudsman with such power to make him a
more active and effective agent of the people in ensuring accountability n public
office. A review of the development of our Ombudsman laws reveals this intent.
These pronouncements are in harmony with the constitutional mandate of he Office of
the Ombudsman, as expressed in Article XI of the Constitution.
SECTION 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against
public officials or employees of the Government, or any agency, subdivision or
instrumentality thereof, including government-owned or controlled corporations,
and shall, in appropriate cases, notify the complainants of the actions taken and
the result thereof. (Underscoring supplied.)
SECTION 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient. x x x.
Coupled with these provisions, Section 13 of the Ombudsman Act of 1989 provides:
SECTION 13. Mandate. The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed in any form or manner against
officers or employees of the Government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations,
and enforce their administrative, civil and criminal liability in every case where the
evidence warrants in order to promote efficient service by the Government to the
people. (Underscoring supplied)

The Constitution and the Ombudsman Act of 1989 both mention, unequivocally, that the
Office of the Ombudsman has the duty and mandate to act on the complaints filed
against officers or employees of the Government. It is imperative that this duty be
exercised in order to make real the role of the Office of the Ombudsman as a defender
of the people's interest specially in cases like these which have partisan political taint.
For the foregoing reasons, I vote to GRANT the petition.

DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
I am constrained to dissent from the majority opinion for the following reasons: (1) it
evades the consequence of the statutory definition of the crime of coup d'etat; (2) it
violates the principle of stare decisis without a clear explanation why the established
doctrine has to be re-examined and reversed; and (3) it trivializes the importance of two
constitutional offices the Ombudsman and the Senate and in the process,
petitioner's right to due process has been impaired.
I
It is an established principle that an act no matter how offensive, destructive, or
reprehensible, is not a crime unless it is defined, prohibited, and punished by law. The
prosecution and punishment of any criminal offense are necessarily circumscribed by
the specific provision of law which defines it.
Article 134-A of the Revised Penal Code defines coup d'etat, thus:
"Article 134-A. Coup d'etat. How committed. The crime of coup d'etat is a
swift attack accompanied by violence, intimidation, threat, strategy or stealth,
directed against duly constituted authorities of the Republic of the Philippines, or
any military camp or installation, communications networks, public utilities or
other facilities needed for the exercise and continued possession of power, singly
or simultaneously carried out anywhere in the Philippines by any person or
persons, belonging to the military or police or holding any public office or
employment with or without civilian support or participation for the purpose of
seizing or diminishing state power."
There is no question that Senator Honasan, herein petitioner, holds a high public office.
If he is charged with coup d'etat, it has to be in his capacity as a public officer
committing the alleged offense in relation to his public office.

The complaint filed with the Department of Justice alleges the events supposedly
constituting the crime of coup d'etat, thus:
1. On 04 June 2003, Senator Honasan presided over a meeting held
"somewhere in San Juan, Metro Manila."
2. After dinner, Senator Honasan, as presiding officer, "discussed the NRP
(National Recovery Program), the graft and corruption in the government,
including the military institutions, the judiciary, the executive department, and the
like."
3. "The discussion concluded that we must use force, violence and armed
struggle to achieve the vision of NRP. x x x Senator Honasan countered that 'we
will never achieve reforms through the democratic processes because the people
who are in power will not give up their positions as they have their vested
interests to protect.' x x x Senator Honasan replied 'kung kaya nating pumatay sa
ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil.' x
x x."
4. In the course of the meeting, Senator Honasan presented the plan of action to
achieve the goals of the NRP, i.e., overthrow of the government under the
present leadership thru armed revolution and after which, a junta will be
constituted to run the new government.
5. The crime of coup d'etat was committed on 27 July 2003 by military personnel
who occupied Oakwood. Senator Honasan and various military officers, one
member of his staff, and several John Does and Jane Does were involved in the
Oakwood incident.
The above allegations determine whether or not petitioner committed the alleged crime
as a public officer "in relation to his office." If it was in relation to his office, the crime
falls under the exclusive original jurisdiction of the Sandiganbayan. It is the Ombudsman
who has the primary jurisdiction to investigate and prosecute the complaint for coup
d'etat, thus:
Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan
as follows:
"SECTION 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
"a. Violations of Republic No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter
II, Section 2, Title VII, Book II of the Revised Penal Code, where one or
more of the accused are officials occupying the following positions in the

government, whether in a permanent, acting or interim capacity, at the

time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade '27' and
higher, of the Compensations and Position Classification Act of
1989 (Republic Act No. 67 58), specifically including:
(a) Provincial governors, vice-governors, members of the
Sangguniang Panlalawigan, and provincial treasurers ,
assessors, engineers, and other provincial department
heads;
(b) City mayors, vice-mayors, members of the Sangguniang
Panlungsod, city treasurers, assessors, engineers, and other
city department heads;
(c) Officials of the diplomatic service occupying the position
of consul and higher;
(d) Philippine Army and air force colonels, naval captains,
and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying
the position of provincial director and those holding the rank
of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman
and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade
'27' and up under the Compensation and Position Classification Act
of 1989;
(3) Members of the judiciary without prejudice to the provisions of
the Constitution;
(4) Chairman and members of the Constitutional Commissions,
without prejudice to the provisions of the Constitution;

(5) All other national and local officials classified as Grade '27' or
higher under the Compensation and Position Classification Act of
1989.
"b. Other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and employees
mentioned in Subsection a of this section in relation to their office.
"c. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986."
Section 15 of Republic Act 6770, or the Ombudsman Act of 1989, provides:
"1) Investigate and prosecute on its own or on complaint by any person, any act
or omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
his primary jurisdiction, it may take over, at any stage, from any investigatory
agency of Government, the investigation of such cases; x x x" (Emphasis
supplied)
Under the above provisions, what determines the Sandiganbayan's jurisdiction is the
official position or rank of the offender, that is, whether he is one of those public officers
enumerated therein.
Petitioner, being a Senator, occupies a government position higher than Grade 27 of the
Compensation and Position Classification Act of 1989. In fact, he holds the third highest
position and rank in the Government. At the apex, the President stands alone. At the
second level, we have the Vice-President, Speaker of the House, Senate President and
Chief Justice. Clearly, he is embraced in the above provisions.
Following the doctrine of "primary jurisdiction," it is the Ombudsman who should
conduct the preliminary investigation of the charge of coup d'etat against petitioner. The
DOJ should refrain from exercising such function.
The crux of the jurisdiction of the DOJ lies in the meaning of "in relation to their office."
The respondents start their discussion of "in relation to public office" with a peculiar
presentation. They contend that the duties of a Senator are to make laws, to
appropriate, to tax, to expropriate, to canvass presidential elections, to declare the
existence of a state war, to give concurrence to treaties and amnesties, to propose
constitutional amendments, to impeach, to investigate in aid of legislation, and to
determine the Senate rules of proceedings and discipline of its members. They maintain
that the "alleged acts done to overthrow the incumbent government and authorities by
arms and with violence" cannot be qualified as "acts reminiscent of the discharge of
petitioner's legislative duties as Senator." 1

The allegations in the complaint and in the pleadings of the DOJ, the Solicitor General,
and the Ombudsman (who is taking their side) charging petitioner with coup d'etat show
hat he was engaged in a discussion of his National Recovery Program (NRP),
corruption in government, and the need for reform. The NRP is a summary of what he
has introduced and intended to introduce into legislation by Congress. There is no
doubt, therefore, that the alleged coup d'etat was committed in relation to the
performance of his official duty as a Senator.
II
The ponencia is a departure or reversion from established doctrine. Under the principle
of stare decisis, the Court should, for the sake of certainty, apply a conclusion reached
in one case to decisions which follow, if the facts are substantially similar. As stated
in Santiago vs. Valenzuela2, stare decisi et non quieta movere. Stand by the decisions
and disturb not what is settled.
In Deloso vs. Domingo3, where the Governor of Zambales and his military and police
escorts ambushed the victims who were passing by in a car, we held that the multiple
murders were committed in relation to public office. In Cunanan vs. Arceo4, the mayor
ordered his co-accused to shoot the victims. We ruled that the murder was in relation to
public office. In Alarilla vs. Sandiganbayan5, the town mayor aimed a gun and
threatened to kill a councilor of the municipality during a public hearing. We concluded
that the grave threats were in relation to the mayor's office. Following these precedents,
I am convinced that petitioner's discourse on his National Recovery Program is in
relation to his office.
III
The respondents state that the DOJ is vested with jurisdiction to
conduct all investigations and prosecution of allcrimes. They cite PD 1275, as amended
by PD 1513, and the Revised Administrative Code of 1987 as the source of this plenary
power.
While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal
Code and special laws, however, this jurisdiction is not plenary or total. Whenever the
Constitution or statute vests jurisdiction over the investigation and prosecution of certain
crimes in an office, the DOJ has no jurisdiction over those crimes. In election offenses,
the Constitution vests the power to investigate and prosecute in the Commission on
Elections.6In crimes committed by public officers in relation to their office, the
Ombudsman is given by both the Constitution and the statute the same power of
investigation and prosecution.7 These powers may not be exercised by the DOJ.
The DOJ cannot pretend to have investigatory and prosecutorial powers above those of
the Ombudsman. The Ombudsman is a constitutional officer with a rank equivalent to
that of an Associate Justice of this Court. The respondent's Prosecution Office
investigates and prosecutes all kinds of offenses from petty crimes, like vagrancy or

theft, to more serious crimes, such as those found in the Revised Penal Code. The
Ombudsman, on the other hand, prosecutes offenses in relation to public office
committed by public officers with the rank and position classification of Grade 27 or
higher. It is a special kind of jurisdiction which excludes general powers of other
prosecutory offices.
I agree with the petitioner that a becoming sense of courtesy, respect, and propriety
requires that the constitutional officer should conduct the preliminary investigation and
prosecution of the complaint against him and not a fifth assistant city prosecutor or even
a panel of prosecutors from the DOJ National Prosecution Service.
I do not believe that a mere agreement, such as OMB-DOJ Joint Circular No. 95-001,
can fully transfer the prosecutory powers of the Ombudsman to the DOJ without need
for deputization in specific cases. As stated by the petitioner, the DOJ cannot be
given a roving commission or authority to investigate and prosecute cases falling under
the Ombudsman's powers anytime the DOJ pleases without any special and explicit
deputization. On this point, I agree with Justice Jose C. Vitug that the Joint Circular
must be understood as a mere working arrangement between the Office of the
Ombudsman and the DOJ that must not be meant to be such a blanket delegation to
the DOJ as to generally allow it to conduct preliminary investigation over any case
cognizable by the Ombudsman.
Petitioner further raises a due process question. He accuses the DOJ of bias, partiality,
and prejudgment. He states that he has absolutely no chance of being cleared by the
respondent DOJ panel because it has already decided, before any presentation of
proof, that he must be charged and arrested without bail.
As stated by the petitioner, there are precedents to the effect that where bias exists,
jurisdiction has to be assumed by a more objective office. In Panlilio vs.
Sandiganbayan,8 we recognized that the PCGG has the authority to investigate the
case, yet we ordered the transfer of the case to the Ombudsman because of the
PCGG's "marked bias" against the petitioner.
In Conjuangco vs. PCGG,9 we held that there is a denial of due process where the
PCGG showed "marked bias" in handling the investigation. In Salonga vs. Cruz
Pao,10 where the preliminary investigation was tainted by bias and partiality, we
emphasized the right of an accused to be free, not only from arbitrary arrest and
punishment but also from unwarranted and biased prosecution.
The petitioner's pleadings show the proofs of alleged bias. They may be summarized as
follows:
First, on July 27, 2003 when the Oakwood incident was just starting, DILG
Secretary Lina and National Security Adviser Roilo Golez went on a media
barrage accusing petitioner of complicity without a shred of evidence.

Second, petitioner was approached by Palace emissaries, Velasco, Defensor,

Tiglao, and Afable to help defuse the incident and ask mutineers to surrender.
Then the request was distorted to make it appear that he went there to save his
own skin.
Third, even before any charge was filed, officials of the DOJ were on an almost
daily media program prematurely proclaiming petitioner's guilt. How can the DOJ
conduct an impartial and fair investigation when it has already found him guilty?
Fourth, petitioner was given five days to answer Matillano's complaint but later
on, it was shortened to three days.
Fifth, petitioner filed a 30 page Reply but the DOJ Order was issued at once, or
only after two days, or on Sept. 10, 2003. The Order did not discuss the Reply,
but perfunctorily glossed over and disregarded it.
The petitioner states that the DOJ is constitutionally and factually under the control of
the President. He argues that:
"No questionable prosecution of an opposition Senator who has declared himself
available for the Presidency would be initiated without the instigation,
encouragement or approval of officials at the highest levels of the Administration.
Justice requires that the Ombudsman, an independent constitutional office,
handle the investigation and prosecution of this case. The DOJ cannot act fairly
and independently in this case. In fact, all of the actions the DOJ has taken so far
have been marked by bias, hounding and persecution.
And finally, the charges laid against Senator Honasan are unfounded
concoctions of fertile imaginations. The petitioner had no role in the Oakwood
mutiny except the quell and pacify the angry young men fighting for a just cause.
Inspiration perhaps, from his National Recovery Program, but no marching
orders whatsoever."
Prosecutors, like Caesar's wife, must be beyond suspicion. Where the test of the cold
neutrality required of them cannot be met, they must yield to another office especially
where their jurisdiction is under question. The tenacious insistence of respondents in
handling the investigation of the case and their unwillingness to transfer it to the
Ombudsman in the face of their questionable jurisdiction are indications of marked bias.
WHEREFORE, I vote to GRANT the petition and to order the Department of Justice to
refrain from conducting preliminary investigation of the complaint for coup d'etat against
petitioner for lack of jurisdiction.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 170338

December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION,
PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY,
INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND
ELECTORAL REFORMS, respondents.
x----------------------x
G.R. No. 179275

December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE
SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
x----------------------x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G.
BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S.
MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors
DECISION
NACHURA, J.:
More than three years ago, tapes ostensibly containing a wiretapped conversation
purportedly between the President of the Philippines and a high-ranking official of the
Commission on Elections (COMELEC) surfaced. They captured unprecedented public
attention and thrust the country into a controversy that placed the legitimacy of the
present administration on the line, and resulted in the near-collapse of the Arroyo
government. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly
contained the Presidents instructions to COMELEC Commissioner Virgilio Garcillano to
manipulate in her favor results of the 2004 presidential elections. These recordings
were to become the subject of heated legislative hearings conducted separately by
committees of both Houses of Congress.1
In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader
Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set in
motion a congressional investigation jointly conducted by the Committees on Public
Information, Public Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms (respondent House
Committees). During the inquiry, several versions of the wiretapped conversation
emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo
Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel Ong
submitted to the respondent House Committees seven alleged "original" tape
recordings of the supposed three-hour taped conversation. After prolonged and

impassioned debate by the committee members on the admissibility and authenticity of

the recordings, the tapes were eventually played in the chambers of the House. 2
On August 3, 2005, the respondent House Committees decided to suspend the
hearings indefinitely. Nevertheless, they decided to prepare committee reports based on
the said recordings and the testimonies of the resource persons. 3
Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with
this Court a Petition for Prohibition and Injunction, with Prayer for Temporary
Restraining Order and/or Writ of Preliminary Injunction 4docketed as G.R. No. 170338.
He prayed that the respondent House Committees be restrained from using these tape
recordings of the "illegally obtained" wiretapped conversations in their committee
reports and for any other purpose. He further implored that the said recordings and any
reference thereto be ordered stricken off the records of the inquiry, and the respondent
House Committees directed to desist from further using the recordings in any of the
House proceedings.5
Without reaching its denouement, the House discussion and debates on the "Garci
tapes" abruptly stopped.
After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering
issue with a privilege speech, "The Lighthouse That Brought Darkness." In his
discourse, Senator Lacson promised to provide the public "the whole unvarnished truth
the whats, whens, wheres, whos and whys" of the alleged wiretap, and sought an
inquiry into the perceived willingness of telecommunications providers to participate in
nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to the
Senate Committee on National Defense and Security, chaired by Senator Rodolfo
Biazon, who had previously filed two bills6 seeking to regulate the sale, purchase and
use of wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP)
from performing electoral duties.7
In the Senates plenary session the following day, a lengthy debate ensued when
Senator Richard Gordon aired his concern on the possible transgression of Republic Act
(R.A.) No. 42008 if the body were to conduct a legislative inquiry on the matter. On
August 28, 2007, Senator Miriam Defensor-Santiago delivered a privilege speech,
articulating her considered view that the Constitution absolutely bans the use,
possession, replay or communication of the contents of the "Hello Garci" tapes.
However, she recommended a legislative investigation into the role of the Intelligence

Service of the AFP (ISAFP), the Philippine National Police or other government entities
in the alleged illegal wiretapping of public officials. 9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired
justices of the Court of Appeals, filed before this Court a Petition for Prohibition with
Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction,10 docketed as G.R. No. 179275, seeking to bar the Senate from conducting
its scheduled legislative inquiry. They argued in the main that the intended legislative
inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution. 11
As the Court did not issue an injunctive writ, the Senate proceeded with its public
hearings on the "Hello Garci" tapes on September 7, 12 1713 and October 1,14 2007.
Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C.
Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S.
Madrigal and Antonio F. Trillanes filed their Comment 16on the petition on September 25,
2007.
The Court subsequently heard the case on oral argument. 17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the
resource persons summoned by the Senate to appear and testify at its hearings, moved
to intervene as petitioner in G.R. No. 179275. 18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and
179275.19
It may be noted that while both petitions involve the "Hello Garci" recordings, they have
different objectivesthe first is poised at preventing the playing of the tapes in the House
and their subsequent inclusion in the committee reports, and the second seeks to
prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R.
No. 179275.
-IBefore delving into the merits of the case, the Court shall first resolve the issue on the
parties standing, argued at length in their pleadings.

In Tolentino v. COMELEC,20 we explained that "[l]egal standing or locus standi refers to

a personal and substantial interest in a case such that the party has sustained or will
sustain direct injury because of the challenged governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he can show that he
has personally suffered some actual or threatened injury because 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.21
The gist of the question of standing is whether a party has "alleged such 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." 22
However, considering that locus standi is a mere procedural technicality, the Court, in
recent cases, has relaxed the stringent direct injury test. David v. MacapagalArroyo23 articulates that a "liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings." 24 The fairly recent Chavez v.
Gonzales25 even permitted a non-member of the broadcast media, who failed to allege a
personal stake in the outcome of the controversy, to challenge the acts of the Secretary
of Justice and the National Telecommunications Commission. The majority, in the said
case, echoed the current policy that "this Court has repeatedly and consistently refused
to wield procedural barriers as impediments to its addressing and resolving serious
legal questions that greatly impact on public interest, in keeping with the Courts duty
under the 1987 Constitution to determine whether or not other branches of government
have kept themselves within the limits of the Constitution and the laws, and that they
have not abused the discretion given to them." 26
In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by
alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his was
publicly identified by the members of the respondent committees as one of the voices in
the recordings.27 Obviously, therefore, petitioner Garcillano stands to be directly injured
by the House committees actions and charges of electoral fraud. The Court recognizes
his standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging
that they are concerned citizens, taxpayers, and members of the IBP. They are of the
firm conviction that any attempt to use the "Hello Garci" tapes will further divide the
country. They wish to see the legal and proper use of public funds that will necessarily

be defrayed in the ensuing public hearings. They are worried by the continuous violation
of the laws and individual rights, and the blatant attempt to abuse constitutional
processes through the conduct of legislative inquiries purportedly in aid of legislation. 28
Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his rights
therein through the publication of the Senate Rules of Procedure Governing Inquiries in
Aid of Legislation, but also of the intended legislation which underpins the investigation.
He further intervenes as a taxpayer bewailing the useless and wasteful expenditure of
public funds involved in the conduct of the questioned hearings. 29
Given that petitioners Ranada and Agcaoili allege an interest in the execution of the
laws and that intervenor Sagge asserts his constitutional right to due process, 30 they
satisfy the requisite personal stake in the outcome of the controversy by merely being
citizens of the Republic.
Following the Courts ruling in Francisco, Jr. v. The House of Representatives,31 we find
sufficient petitioners Ranadas and Agcaoilis and intervenor Sagges allegation that the
continuous conduct by the Senate of the questioned legislative inquiry will necessarily
involve the expenditure of public funds.32 It should be noted that inFrancisco, rights
personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged
unconstitutional acts of the House of Representatives, yet the Court granted standing to
the petitioners therein for, as in this case, they invariably invoked the vindication of their
own rightsas taxpayers, members of Congress, citizens, individually or in a class suit,
and members of the bar and of the legal professionwhich were also supposedly
violated by the therein assailed unconstitutional acts. 33
Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and
intervenor Sagge advance constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as precedents. The issues are of
transcendental and paramount importance not only to the public but also to the Bench
and the Bar, and should be resolved for the guidance of all. 34
Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in
prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal
standing of petitioners Ranada and Agcaoili and intervenor Sagge.
- II The Court, however, dismisses G.R. No. 170338 for being moot and academic.
Repeatedly stressed in our prior decisions is the principle that the exercise by this Court

of judicial power is limited to the determination and resolution of actual cases and
controversies.35 By actual cases, we mean existing conflicts appropriate or ripe for
judicial determination, not conjectural or anticipatory, for otherwise the decision of the
Court will amount to an advisory opinion. The power of judicial inquiry does not extend
to hypothetical questions because any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.36 Neither will the Court determine a moot question in a case in which no
practical relief can be granted. A case becomes moot when its purpose has become
stale.37 It is unnecessary to indulge in academic discussion of a case presenting a moot
question as a judgment thereon cannot have any practical legal effect or, in the nature
of things, cannot be enforced.38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned,
the issuance of an injunctive writ to prohibit the respondent House Committees from
playing the tape recordings and from including the same in their committee report. He
likewise prays that the said tapes be stricken off the records of the House proceedings.
But the Court notes that the recordings were already played in the House and heard by
its members.39 There is also the widely publicized fact that the committee reports on the
"Hello Garci" inquiry were completed and submitted to the House in plenary by the
respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a
preventive remedy to restrain the doing of an act about to be done, and not intended to
provide a remedy for an act already accomplished.41
- III As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be
allowed to continue with the conduct of the questioned legislative inquiry without duly
published rules of procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the
House of Representatives, or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure." The requisite
of publication of the rules is intended to satisfy the basic requirements of due
process.42 Publication is indeed imperative, for it will be the height of injustice to punish
or otherwise burden a citizen for the transgression of a law or rule of which he had no
notice whatsoever, not even a constructive one. 43 What constitutes publication is set
forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15
days following the completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines." 44

The respondents in G.R. No. 179275 admit in their pleadings and even on oral
argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
had been published in newspapers of general circulation only in 1995 and in
2006.45 With respect to the present Senate of the 14 th Congress, however, of which the
term of half of its members commenced on June 30, 2007, no effort was undertaken for
the publication of these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v. Senate
Committee on Accountability of Public Officers and Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that respondent Committees
likewise violated Section 21 of Article VI of the Constitution, requiring that the
inquiry be in accordance with the "duly published rules of procedure." We
quote the OSGs explanation:
The phrase "duly published rules of procedure" requires the Senate of
every Congress to publish its rules of procedure governing inquiries in aid
of legislation because every Senate is distinct from the one before it or
after it. Since Senatorial elections are held every three (3) years for onehalf of the Senates membership, the composition of the Senate also
changes by the end of each term. Each Senate may thus enact a different
set of rules as it may deem fit. Not having published its Rules of
Procedure, the subject hearings in aid of legislation conducted by
the 14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this
ruling with the following rationalization:
The present Senate under the 1987 Constitution is no longer a continuing
legislative body. The present Senate has twenty-four members, twelve of whom
are elected every three years for a term of six years each. Thus, the term of
twelve Senators expires every three years, leaving less than a majority of
Senators to continue into the next Congress. The 1987 Constitution, like the
1935 Constitution, requires a majority of Senators to "constitute a quorum to do
business." Applying the same reasoning inArnault v. Nazareno, the Senate under
the 1987 Constitution is not a continuing body because less than majority of the
Senators continue into the next Congress. The consequence is that the Rules of
Proceduremust be republished by the Senate after every expiry of the term of
twelve Senators.47

The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body," this Court sees fit to issue a
clarification. Certainly, there is no debate that the Senate as an institution is
"continuing," as it is not dissolved as an entity with each national election or
change in the composition of its members. However, in the conduct of its day-today business the Senate of each Congress acts separately and independently of
the Senate of the Congress before it. The Rules of the Senate itself confirms this
when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up
at the next session in the same status.
All pending matters and proceedings shall terminate upon the
expiration of one (1) Congress, but may be taken by the succeeding
Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e.,
unpassed bills and even legislative investigations, of the Senate of a particular
Congress are considered terminated upon the expiration of that Congress and it
is merely optional on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if presented for the first
time. The logic and practicality of such a rule is readily apparent considering that
the Senate of the succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be bound by the acts
and deliberations of the Senate of which they had no part. If the Senate is a
continuing body even with respect to the conduct of its business, then pending
matters will not be deemed terminated with the expiration of one Congress but
will, as a matter of course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the
opposite nature of the conduct of its business is reflected in its Rules. The Rules
of the Senate (i.e. the Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the
preceding elections shall begin their term of office, the President may
endorse the Rules to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a motion which should be
presented at least one day before its consideration, and the vote of the
majority of the Senators present in the session shall be required for its
approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and
shall remain in force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new
composition of the Senate after an election and the possibility of the amendment
or revision of the Rules at the start of each session in which the newly elected
Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are
intended to be valid from the date of their adoption until they are amended or
repealed. Such language is conspicuously absent from theRules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation." The latter does not
explicitly provide for the continued effectivity of such rules until they are amended
or repealed. In view of the difference in the language of the two sets of Senate
rules, it cannot be presumed that the Rules (on legislative inquiries) would
continue into the next Congress. The Senate of the next Congress may easily
adopt different rules for its legislative inquiries which come within the rule on
unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of procedure is
categorical. It is incumbent upon the Senate to publish the rules for its legislative
inquiries in each Congress or otherwise make the published rules clearly state
that the same shall be effective in subsequent Congresses or until they are
amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to
be effective even in the next Congress, it could have easily adopted the same
language it had used in its main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated publication
by arguing that the rules have never been amended since 1995 and, despite that, they
are published in booklet form available to anyone for free, and accessible to the public
at the Senates internet web page.49
The Court does not agree. The absence of any amendment to the rules cannot justify
the Senates defiance of the clear and unambiguous language of Section 21, Article VI
of the Constitution. The organic law instructs, without more, that the Senate or its
committees may conduct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction whether or not these
rules have undergone amendments or revision. The constitutional mandate to publish
the said rules prevails over any custom, practice or tradition followed by the Senate.
Justice Carpios response to the same argument raised by the respondents is
illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in
pamphlet form available at the Senate, is not sufficient under the Taada v.
Tuvera ruling which requires publication either in the Official Gazette or in a
newspaper of general circulation. The Rules of Procedure even provide that the
rules "shall take effect seven (7) days after publication in two (2) newspapers of
general circulation," precluding any other form of publication. Publication in
accordance with Taada is mandatory to comply with the due process
requirement because the Rules of Procedure put a persons liberty at risk. A
person who violates the Rules of Procedure could be arrested and detained by
the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise
known as the Electronic Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect. R.A. 8792 considers an
electronic data message or an electronic document as the functional equivalent of a
written document only for evidentiary purposes.51 In other words, the law merely
recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does not make the internet a medium for
publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry subject of
these consolidated cases. The conduct of inquiries in aid of legislation by the Senate
has to be deferred until it shall have caused the publication of the rules, because it can
do so only "in accordance with its duly published rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this fact, the recent publication
does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions.
Insofar as the consolidated cases are concerned, the legislative investigation subject
thereof still could not be undertaken by the respondent Senate Committees, because no
published rules governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other
issues raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R.
No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the
Republic of the Philippines and/or any of its committees from conducting any inquiry in
aid of legislation centered on the "Hello Garci" tapes.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

FIRST DIVISION
[G.R. No. 125932. April 21, 1999]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. CLAUDE A. MILLER

and JUMRUS S. MILLER, respondents.
DECISION
PARDO, J.:

The Republic of the Philippines, through the Solicitor General, appealed originally to
the Court of Appeals from a decision of the Regional Trial Court, Branch 59, Angeles
City, granting the petition of respondent spouses to adopt the minor Michael Magno
Madayag.
In its decision promulgated on April 17, 1996, the Court of Appeals certified the case
to the Supreme Court because the petition raised only questions of law.
By resolution adopted on September 23, 1996, we accepted the appeal. We shall
treat the appeal as one via certiorari from a decision of the Regional Trial Court under
the Supreme Court Circular 2-90, dated March 9, 1990, on pure questions of law.
The facts are undisputed and may be related as follows:
On July 29, 1988, the spouses Claude A. Miller and Jumrus S. Miller, filed with the
Regional Trial Court, Branch 59, Angeles City, a verified petition to adopt the minor
Michael Magno Madayag.
The trial court scheduled the petition for hearing on September 9, 1988, at 9:00 in
the morning. At the hearing, with the attendance of an assistant city fiscal of Angeles
City, in representation of the Solicitor General, respondents adduced evidence showing
that:

"Claude A. Miller, 38 years old and Jumrus S. Miller, 40 years of age, both
American citizens, are husband and wife, having been married on June 21,
1982.
They were childless and "do not expect to have sibling out of their union on
account of a medical problem of the wife."
Claude A. Miller was a member of the United States Air Force, as airman first
class, assigned at Clark Air Base since January 26, 1985.

"The family maintains their residence at Don Bonifacio Subdivision, Balibago,

Angeles City, since 1985."[1]
"The minor Michael Magno Madayag is the legitimate son of Marcelo S.
Madayag, Jr. and Zenaida Magno. Born on July 14, 1987, at San Fernando,
La Union, the minor has been in the custody of respondents since the first
week of August 1987. Poverty and deep concern for the future of their son
prompted the natural parents who have no visible means of livelihood to have
their child adopted by respondents. They executed affidavits giving their
irrevocable consent to the adoption by respondents."
The Department of Social Welfare and Development, through its Regional
Office at San Fernando, Pampanga, recommended approval of the petition on
the basis of its evaluation that respondents were morally, emotionally and
financially fit to be adoptive parents and that the adoption would be to the
minor's best interest and welfare."[2]
On May 12, 1989, the trial court rendered decision granting the petition for adoption,
the dispositive portion of which reads as follows:

"WHEREFORE, finding that petitioners possess all the qualifications and none
of the disqualifications for adoption, the instant petition is hereby Granted, and
this Court decrees the minor MICHAEL MAGNO MADAYAG freed from all
obligation of obedience and support with respect to natural parents and is
hereby declared the child of the herein petitioners by adoption. The minor's
surname shall be changed from "MADAYAG" to "MILLER", which is the
surname of the herein petitioners."[3]
In due time, the Solicitor General, in behalf of the Republic, interposed an appeal to
the Court of Appeals. As heretofore stated, the Court of Appeals certified the case to
this Court.
The issue raised is whether the court may allow aliens to adopt a Filipino child
despite the prohibition under the Family Code, [4] effective on August 3, 1988[5] when the
petition for adoption was filed on July 29, 1988, under the provision of the Child and
Youth Welfare Code[6] which allowed aliens to adopt.
The issue is not new. This Court has ruled that an alien qualified to adopt under the
Child and Youth Welfare Code, which was in force at the time of the filing of the petition,

acquired a vested right which could not be affected by the subsequent enactment of a
new law disqualifying him.[7] 7
Consequently, the enactment of the Family Code, effective August 3, 1988, will not
impair the right of respondents who are aliens to adopt a Filipino child because the right
has become vested at the time of filing of the petition for adoption and shall be
governed by the law then in force. "A vested right is one whose existence, effectivity and
extent does not depend upon events foreign to the will of the holder. The term
expresses the concept of present fixed interest which in right reason and natural justice
should be protected against arbitrary State action, or an innately just and imperative
right which enlightened free society, sensitive to inherent and irrefragable individual
rights, cannot deny."[8] "Vested rights include not only legal or equitable title to the
enforcement of a demand, but also an exemption from new obligations created after the
right has vested."[9]
"As long as the petition for adoption was sufficient in form and substance in
accordance with the law in governance at the time it was filed, the court acquires
jurisdiction and retains it until it fully disposes of the case. To repeat, the jurisdiction of
the court is determined by the statute in force at the time of the commencement of the
action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches
cannot be ousted by a subsequent happenings or events, although of a character which
would have prevented jurisdiction from attaching in the first instance." [10]
Therefore, an alien who filed a petition for adoption before the effectivity of the
Family code, although denied the right to adopt under Art. 184 of said Code, may
continue with his petition under the law prevailing before the Family Code. [11]
"Adoption statutes, being humane and salutary, hold the interests and welfare of the
child to be of paramount consideration. They are designed to provide homes, parental
care and education for unfortunate, needy or orphaned children and give them the
protection of society and family in the person of the adopter, as well as childless couples
or persons to experience the joy of parenthood and give them legally a child in the
person of the adopted for the manifestation of their natural parent instincts. Every
reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law." [12]
WHEREFORE, we hereby AFFIRM the appealed decision of the Regional Trial
Court, Branch 59, Angeles City, in SP. Proc. No. 3562.
No costs.

SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, Kapunan, and Ynares-Santiago, JJ., concur.

SECOND DIVISION

EDUARDO P. MANUEL, G.R. No. 165842

Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005
x-----------------------------------------------------------------------------------------x
DECISION
CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision [2] of the Regional
Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of
bigamy in Criminal Case No. 19562-R.
Eduardo was charged with bigamy in an Information filed on November 7, 2001,
the accusatory portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused EDUARDO P. MANUEL, being then previously and legally married to
RUBYLUS [GAA] and without the said marriage having been legally dissolved,
did then and there willfully, unlawfully and feloniously contract a second
marriage with TINA GANDALERA-MANUEL, herein complainant, who does
not know the existence of the first marriage of said EDUARDO P. MANUEL to
Rubylus [Gaa].
CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to
Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a
municipality of the Province of Rizal. [4] He met the private complainant Tina B.
Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,
Dagupan City for two days looking for a friend. Tina was then 21 years old, a
Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to another, they went to a
motel where, despite Tinas resistance, Eduardo succeeded in having his way with
her. Eduardo proposed marriage on several occasions, assuring her that he was
single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and
was assured by them that their son was still single.
Tina finally agreed to marry Eduardo sometime in the first week of March
1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the
Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their
marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress Point,
Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce
and went to their house only twice or thrice a year. Tina was jobless, and whenever
she asked money from Eduardo, he would slap her.[6] Sometime in January 2001,
Eduardo took all his clothes, left, and did not return. Worse, he stopped giving
financial support.
Sometime in August 2001, Tina became curious and made inquiries from the
National Statistics Office (NSO) in Manila where she learned that Eduardo had
been previously married. She secured an NSO-certified copy of the marriage
contract.[7] She was so embarrassed and humiliated when she learned that Eduardo
was in fact already married when they exchanged their own vows.[8]
For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where
she worked as a Guest Relations Officer (GRO). He fell in love with her and
married her. He informed Tina of his previous marriage to Rubylus Gaa, but she
nevertheless agreed to marry him. Their marital relationship was in order until this
one time when he noticed that she had a love-bite on her neck. He then abandoned
her. Eduardo further testified that he declared he was single in his marriage
contract with Tina because he believed in good faith that his first marriage was
invalid. He did not know that he had to go to court to seek for the nullification of
his first marriage before marrying Tina.
Eduardo further claimed that he was only forced to marry his first wife
because she threatened to commit suicide unless he did so. Rubylus was charged
with estafa in 1975 and thereafter imprisoned. He visited her in jail after three
months and never saw her again. He insisted that he married Tina believing that his

first marriage was no longer valid because he had not heard from Rubylus for more
than 20 years.
After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty
beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty
of from six (6) years and ten (10) months, as minimum, to ten (10) years, as
maximum, and directed to indemnify the private complainant Tina Gandalera the
amount of P200,000.00 by way of moral damages, plus costs of suit.[9]
The trial court ruled that the prosecution was able to prove beyond reasonable
doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It
declared that Eduardos belief, that his first marriage had been dissolved because of
his first wifes 20-year absence, even if true, did not exculpate him from liability for
bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further
ruled that even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not
criminally liable for bigamy because when he married the private complainant, he
did so in good faith and without any malicious intent. He maintained that at the
time that he married the private complainant, he was of the honest belief that his
first marriage no longer subsisted. He insisted that conformably to Article 3 of the
Revised Penal Code, there must be malice for one to be criminally liable for a
felony. He was not motivated by malice in marrying the private complainant
because he did so only out of his overwhelming desire to have a fruitful marriage.
He posited that the trial court should have taken into account Article 390 of the
New Civil Code. To support his view, the appellant cited the rulings of this Court
in United States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardos defense of
good faith and reliance on the Courts ruling in United States v. Enriquez[13] were
misplaced; what is applicable is Article 41 of the Family Code, which amended
Article 390 of the Civil Code. Citing the ruling of this Court in Republic v.
Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family
Code, there is a need for a judicial declaration of presumptive death of the absent
spouse to enable the present spouse to marry. Even assuming that the first marriage
was void, the parties thereto should not be permitted to judge for themselves the
nullity of the marriage; the matter should be submitted to the proper court for
resolution. Moreover, the OSG maintained, the private complainants knowledge of
the first marriage would not afford any relief since bigamy is an offense against the
State and not just against the private complainant.
However, the OSG agreed with the appellant that the penalty imposed by the
trial court was erroneous and sought the affirmance of the decision appealed from
with modification.
On June 18, 2004, the CA rendered judgment affirming the decision of
the RTC with modification as to the penalty of the accused. It ruled that the
prosecution was able to prove all the elements of bigamy. Contrary to the
contention of the appellant, Article 41 of the Family Code should apply. Before
Manuel could lawfully marry the private complainant, there should have been a
judicial declaration of Gaas presumptive death as the absent spouse. The appellate
court cited the rulings of this Court in Mercado v. Tan[15] andDomingo v. Court of
Appeals[16] to support its ruling. The dispositive portion of the decision reads:
WHEREFORE, in the light of the foregoing, the Decision promulgated on
July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accusedappellant is sentenced to an indeterminate penalty of two (2) years, four (4)
months and one (1) day of prision correccional, as minimum, to ten (10) years

of prision mayor as maximum. Said Decision is AFFIRMED in all other

respects.
SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on
certiorari, insisting that:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE
LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE
AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL
DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of
the felony, i.e., that the marriage has not been legally dissolved or, in case his/her
spouse is absent, the absent spouse could not yet be presumed dead under the Civil
Code. He avers that when he married Gandalera in 1996, Gaa had been absent for
21 years since 1975; under Article 390 of the Civil Code, she was presumed dead
as a matter of law. He points out that, under the first paragraph of Article 390 of the
Civil Code, one who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for succession, while the
second paragraph refers to the rule on legal presumption of death with respect to
succession.

The petitioner asserts that the presumptive death of the absent spouse arises
by operation of law upon the satisfaction of two requirements: the specified period
and the present spouses reasonable belief that the absentee is dead. He insists that
he was able to prove that he had not heard from his first wife since 1975 and that
he had no knowledge of her whereabouts or whether she was still alive; hence,
under Article 41 of the Family Code, the presumptive death of Gaa had arisen by
operation of law, as the two requirements of Article 390 of the Civil Code are
present. The petitioner concludes that he should thus be acquitted of the crime of
bigamy.
The petitioner insists that except for the period of absences provided for in
Article 390 of the Civil Code, the rule therein on legal presumptions remains valid
and effective. Nowhere under Article 390 of the Civil Code does it require that
there must first be a judicial declaration of death before the rule on presumptive
death would apply. He further asserts that contrary to the rulings of the trial and
appellate courts, the requirement of a judicial declaration of presumptive death
under Article 41 of the Family Code is only a requirement for the validity of the
subsequent or second marriage.
The petitioner, likewise, avers that the trial court and the CA erred in awarding
moral damages in favor of the private complainant. The private complainant was a
GRO before he married her, and even knew that he was already married. He
genuinely loved and took care of her and gave her financial support. He also
pointed out that she had an illicit relationship with a lover whom she brought to
their house.
In its comment on the petition, the OSG maintains that the decision of the CA
affirming the petitioners conviction is in accord with the law, jurisprudence and the

evidence on record. To bolster its claim, the OSG cited the ruling of this Court
in Republic v. Nolasco.[19]
The petition is denied for lack of merit.
Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:
El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente
disuelto el anterior, ser castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the
juridical tie of marriage established by law.[20] The phrase or before the absent
spouse had been declared presumptively dead by means of a judgment rendered in
the proper proceedings was incorporated in the Revised Penal Code because the
drafters of the law were of the impression that in consonance with the civil law
which provides for the presumption of death after an absence of a number of
years, the judicial declaration of presumed death like annulment of
marriage should be a justification for bigamy.[21]
For the accused to be held guilty of bigamy, the prosecution is burdened to prove
the felony: (a) he/she has been legally married; and (b) he/she contracts a
subsequent marriage without the former marriage having been lawfully dissolved.
The felony is consummated on the celebration of the second marriage or
subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged
second marriage, having all the essential requirements, would be valid were it not

for the subsistence of the first marriage. [23] Viada avers that a third element of the
crime is that the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a felony bydolo.
[24]

On the other hand, Cuello Calon is of the view that there are only two elements

of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and
(2) the celebration of a second marriage. It does not matter whether the first
marriage is void or voidable because such marriages have juridical effects until
lawfully dissolved by a court of competent jurisdiction. [25] As the Court ruled
in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code
of the Philippines, the judicial declaration of nullity of a previous marriage is a
defense.

In his commentary on the Revised Penal Code, Albert is of the same view as
Viada and declared that there are three (3) elements of bigamy: (1) an undissolved
marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony
of the act.[28] He explained that:
This last element is not stated in Article 349, because it is undoubtedly
incorporated in the principle antedating all codes, and, constituting one of the
landmarks of our Penal Code, that, where there is no willfulness there is no crime.
There
is
no
willfulness
if
the
subject
believes that the former marriage has been dissolved; and this must be supported
by very strong evidence, and if this be produced, the act shall be deemed not to
constitute a crime. Thus, a person who contracts a second marriage in the
reasonable and well-founded belief that his first wife is dead, because of the many
years that have elapsed since he has had any news of her whereabouts, in spite of
his endeavors to find her, cannot be deemed guilty of the crime of bigamy,
because there is no fraudulent intent which is one of the essential elements of the
crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy,
a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code
provides that there is deceit when the act is performed with deliberate intent.
Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as
an intentional felony, it is deemed voluntary.[30] Although the words with malice do
not appear in Article 3 of the Revised Penal Code, such phrase is included in the
word voluntary.[31]
Malice is a mental state or condition prompting the doing of an overt act
without legal excuse or justification from which another suffers injury.[32] When the
act or omission defined by law as a felony is proved to have been done or
committed by the accused, the law presumes it to have been intentional. [33] Indeed,
it is a legal presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the contrary, and such

presumption must prevail unless a reasonable doubt exists from a consideration of

the whole evidence.[34]
For one to be criminally liable for a felony by dolo, there must be a confluence of
both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]
In the present case, the prosecution proved that the petitioner was married to Gaa
in 1975, and such marriage was not judicially declared a nullity; hence, the
marriage is presumed to subsist.[36] The prosecution also proved that the petitioner
married the private complainant in 1996, long after the effectivity of the Family
Code.
The petitioner is presumed to have acted with malice or evil intent when he
married the private complainant. As a general rule, mistake of fact or good faith of
the accused is a valid defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the law is not an excuse
because everyone is presumed to know the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married
the private complainant in 1996, he was of the well-grounded belief that his first
wife was already dead, as he had not heard from her for more than 20 years since
1975. He should have adduced in evidence a decision of a competent court
declaring the presumptive death of his first wife as required by Article 349 of the
Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial
declaration also constitutes proof that the petitioner acted in good faith, and would
negate criminal intent on his part when he married the private complainant and, as
a consequence, he could not be held guilty of bigamy in such case. The petitioner,
however, failed to discharge his burden.
The phrase or before the absent spouse has been declared presumptively
dead by means of a judgment rendered on the proceedings in Article 349 of the
Revised Penal Code was not an aggroupment of empty or useless words. The
requirement for a judgment of the presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the pains and the consequences of
a second marriage, precisely because he/she could be charged and convicted of
bigamy if the defense of good faith based on mere testimony is found incredible.
The requirement of judicial declaration is also for the benefit of the State.
Under Article II, Section 12 of the Constitution, the State shall protect and
strengthen the family as a basic autonomous social institution. Marriage is a social
institution of the highest importance. Public policy, good morals and the interest of
society require that the marital relation should be surrounded with every safeguard
and its severance only in the manner prescribed and the causes specified by law.
[37]

The laws regulating civil marriages are necessary to serve the interest, safety,

good order, comfort or general welfare of the community and the parties can waive
nothing essential to the validity of the proceedings. A civil marriage anchors an

ordered society by encouraging stable relationships over transient ones; it enhances

the welfare of the community.
In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new relations to
each other and the State touching nearly on every aspect of life and death. The
consequences of an invalid marriage to the parties, to innocent parties and to
society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the
presumptive death of the absent spouse [38] after the lapse of the period provided for
under the law. One such means is the requirement of the declaration by a
competent court of the presumptive death of an absent spouse as proof that the
present spouse contracts a subsequent marriage on a well-grounded belief of the
death of the first spouse. Indeed, men readily believe what they wish to be true, is a
maxim of the old jurists. To sustain a second marriage and to vacate a first because
one of the parties believed the other to be dead would make the existence of the
marital relation determinable, not by certain extrinsic facts, easily capable of
forensic ascertainment and proof, but by the subjective condition of individuals.
[39]

Only with such proof can marriage be treated as so dissolved as to permit

second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the
dissolution of marriage dependent not only upon the personal belief of parties, but
upon certain objective facts easily capable of accurate judicial cognizance,
[41]

namely, a judgment of the presumptive death of the absent spouse.

The petitioners sole reliance on Article 390 of the Civil Code as basis for his

acquittal for bigamy is misplaced.

Articles 390 and 391 of the Civil Code provide

Art. 390. After an absence of seven years, it being unknown whether or not, the
absentee still lives, he shall be presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.
Art. 391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs:
(1)

A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the
loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven
years, it being unknown whether or not the absentee still lives, is created by law
and arises without any necessity of judicial declaration. [42] However, Article 41 of
the Family Code, which amended the foregoing rules on presumptive death, reads:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided
in this Court for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.[43]

With the effectivity of the Family Code, [44] the period of seven years under
the first paragraph of Article 390 of the Civil Code was reduced to four

consecutive years. Thus, before the spouse present may contract a subsequent
marriage, he or she must institute summary proceedings for the declaration of the
presumptive death of the absentee spouse,[45] without prejudice to the effect of the
reappearance of the absentee spouse. As explained by this Court in Armas v.
Calisterio:[46]
In contrast, under the 1988 Family Code, in order that a subsequent
bigamous marriage may exceptionally be considered valid, the following
conditions must concur, viz.: (a) The prior spouse of the contracting party must
have been absent for four consecutive years, or two years where there is danger of
death under the circumstances stated in Article 391 of the Civil Code at the time
of disappearance; (b) the spouse present has a well-founded belief that the absent
spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration
of presumptive death of the absentee for which purpose the spouse present can
institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to
Article 40, of the Family Code.

The Court rejects petitioners contention that the requirement of instituting a

petition for declaration of presumptive death under Article 41 of the Family Code
is designed merely to enable the spouse present to contract a valid second marriage
and not for the acquittal of one charged with bigamy. Such provision was designed
to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest
the confusion spawned by the rulings of this Court and comments of eminent
authorities on Criminal Law.
As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for
purposes of the marriage law, it is not necessary to have the former spouse
judicially declared an absentee before the spouse present may contract a
subsequent marriage. It held that the declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose the taking of the
necessary precautions for the administration of the estate of the absentee. For the

celebration of civil marriage, however, the law only requires that the former spouse
had been absent for seven consecutive years at the time of the second marriage,
that the spouse present does not know his or her former spouse to be living, that
such former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage. [48] In In Re Szatraw,[49] the
Court declared that a judicial declaration that a person is presumptively dead,
because he or she had been unheard from in seven years, being a presumption juris
tantumonly, subject to contrary proof, cannot reach the stage of finality or become
final; and that proof of actual death of the person presumed dead being unheard
from in seven years, would have to be made in another proceeding to have such
particular fact finally determined. The Court ruled that if a judicial decree
declaring a person presumptively dead because he or she had not been heard from
in seven years cannot become final and executory even after the lapse of the
reglementary period within which an appeal may be taken, for such presumption is
still disputable and remains subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.
The Court stated that it should not waste its valuable time and be made to perform
a superfluous and meaningless act.[50] The Court also took note that a petition for a
declaration of the presumptive death of an absent spouse may even be made in
collusion with the other spouse.
In Lukban v. Republic of the Philippines,[51] the Court declared that the words
proper proceedings in Article 349 of the Revised Penal Code can only refer to
those authorized by law such as Articles 390 and 391 of the Civil Code which refer
to the administration or settlement of the estate of a deceased person. In Gue v.
Republic of the Philippines,[52] the Court rejected the contention of the petitioner
therein that, under Article 390 of the Civil Code, the courts are authorized to

declare the presumptive death of a person after an absence of seven years. The
Court reiterated its rulings in Szatraw, Lukban and Jones.
Former Chief Justice Ramon C. Aquino was of the view that the provision of
Article 349 or before the absent spouse has been declared presumptively dead by
means of a judgment reached in the proper proceedings is erroneous and should be
considered as not written. He opined that such provision presupposes that, if the
prior marriage has not been legally dissolved and the absent first spouse has not
been declared presumptively dead in a proper court proceedings, the subsequent
marriage is bigamous. He maintains that the supposition is not true. [53] A second
marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article
83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was,
likewise, of the view that Article 349 seems to require judicial decree of
dissolution or judicial declaration of absence but even with such decree, a second
marriage in good faith will not constitute bigamy. He posits that a second marriage,
if not illegal, even if it be annullable, should not give rise to bigamy. [55] Former
Justice Luis B. Reyes, on the other hand, was of the view that in the case of an
absent spouse who could not yet be presumed dead according to the Civil Code,
the spouse present cannot be charged and convicted of bigamy in case he/she
contracts a second marriage.[56]
The Committee tasked to prepare the Family Code proposed the
amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of
the Revised Penal Code, in that, in a case where a spouse is absent for the requisite
period, the present spouse may contract a subsequent marriage only after securing
a judgment declaring the presumptive death of the absent spouse to avoid being
charged and convicted of bigamy; the present spouse will have to adduce evidence
that he had a well-founded belief that the absent spouse was already dead. [57] Such

judgment is proof of the good faith of the present spouse who contracted a
subsequent marriage; thus, even if the present spouse is later charged with bigamy
if the absentee spouse reappears, he cannot be convicted of the crime. As explained
by former Justice Alicia Sempio-Diy:
Such rulings, however, conflict with Art. 349 of the Revised Penal Code
providing that the present spouse must first ask for a declaration of presumptive
death of the absent spouse in order not to be guilty of bigamy in case he or she
marries again.
The above Article of the Family Code now clearly provides that for the
purpose of the present spouse contracting a second marriage, he or she must file a
summary proceeding as provided in the Code for the declaration of the
presumptive death of the absentee, without prejudice to the latters reappearance.
This provision is intended to protect the present spouse from a criminal
prosecution for bigamy under Art. 349 of the Revised Penal Code because with
the judicial declaration that the missing spouses presumptively dead, the good
faith of the present spouse in contracting a second marriage is already established.
[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of

Justice) who wrote that things are now clarified. He says judicial declaration of
presumptive death is now authorized for purposes of remarriage. The present
spouse must institute a summary proceeding for declaration of presumptive death
of the absentee, where the ordinary rules of procedure in trial will not be followed.
Affidavits will suffice, with possible clarificatory examinations of affiants if the
Judge finds it necessary for a full grasp of the facts. The judgment declaring an
absentee as presumptively dead is without prejudice to the effect of reappearance
of the said absentee.
Dean Pineda further states that before, the weight of authority is that the
clause before the absent spouse has been declared presumptively dead x x x should
be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new
law, there is a need to institute a summary proceeding for the declaration of the
presumptive death of the absentee, otherwise, there is bigamy.[59]
According to Retired Supreme Court Justice Florenz D. Regalado, an eminent
authority on Criminal Law, in some cases where an absentee spouse is believed to
be dead, there must be a judicial declaration of presumptive death, which could
then be made only in the proceedings for the settlement of his estate. [60] Before
such declaration, it was held that the remarriage of the other spouse is bigamous
even if done in good faith.[61] Justice Regalado opined that there were contrary
views because of the ruling in Jones and the provisions of Article 83(2) of the Civil
Code, which, however, appears to have been set to rest by Article 41 of the Family
Code, which requires a summary hearing for the declaration of presumptive death
of the absent spouse before the other spouse can remarry.

Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family Code may be
filed under Articles 239 to 247 of the same Code.[62]
On the second issue, the petitioner, likewise, faults the trial court and the CA for
awarding moral damages in favor of the private complainant. The petitioner
maintains that moral damages may be awarded only in any of the cases provided in
Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner
asserts that the appellate court failed to apply its ruling in People v. Bondoc,
[63]

where an award of moral damages for bigamy was disallowed. In any case, the

petitioner maintains, the private complainant failed to adduce evidence to prove

moral damages.
The appellate court awarded moral damages to the private complainant on its
finding that she adduced evidence to prove the same. The appellate court ruled that
while bigamy is not included in those cases enumerated in Article 2219 of the Civil
Code, it is not proscribed from awarding moral damages against the petitioner. The
appellate court ruled that it is not bound by the following ruling in People v.
Bondoc:
... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente
porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de
daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y
otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No
existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00
arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the
evidence and the law. The OSG, likewise, avers that the CA was not bound by its
ruling in People v. Rodeo.

The Court rules against the petitioner.

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 or
omission.[65] An award for moral damages requires the confluence of the following
conditions: first, there must be an injury, whether physical, mental or
psychological, clearly sustained by the claimant;second, there must be culpable act
or omission factually established; third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any of the cases stated in Article
2219 or Article 2220 of the Civil Code.[66]
Moral damages may be awarded in favor of the offended party only in
criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil
Code and analogous cases, viz.:
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.

Thus, the law does not intend that moral damages should be awarded in all cases
where the aggrieved party has suffered mental anguish, fright, moral anxieties,
besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury arising out of an act or omission of another, otherwise, there would
not have been any reason for the inclusion of specific acts in Article 2219 [67] and
analogous cases (which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form, proportion,
relation, etc.)[68]
Indeed, bigamy is not one of those specifically mentioned in Article 2219 of
the Civil Code in which the offender may be ordered to pay moral damages to the
private complainant/offended party. Nevertheless, the petitioner is liable to the
private complainant for moral damages under Article 2219 in relation to Articles
19, 20 and 21 of the Civil Code.
According to Article 19, every person must, in the exercise of his rights and
in the performance of his act with justice, give everyone his due, and observe
honesty and good faith. This provision contains what is commonly referred to as
the principle of abuse of rights, and sets certain standards which must be observed
not only in the exercise of ones rights but also in the performance of ones duties.
The standards are the following: act with justice; give everyone his due; and
observe honesty and good faith. The elements for abuse of rights are: (a) there is a
legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.[69]

Article 20 speaks of the general sanctions of all other provisions of law

which do not especially provide for its own sanction. When a right is exercised in a
manner which does not conform to the standards set forth in the said provision and
results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible.[70] If the provision does not provide a remedy for
its violation, an action for damages under either Article 20 or Article 21 of the
Civil Code would be proper. Article 20 provides that every person who, contrary to
law, willfully or negligently causes damage to another shall indemnify the latter for
the same. On the other hand, Article 21 provides that any person who willfully
causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for damages. The latter
provision is adopted to remedy the countless gaps in the statutes which leave so
many victims of moral wrongs helpless, even though they have actually suffered
material and moral injury should vouchsafe adequate legal remedy for that untold
number of moral wrongs which it is impossible for human foresight to prove for
specifically in the statutes. Whether or not the principle of abuse of rights has been
violated resulting in damages under Article 20 or Article 21 of the Civil Code or
other applicable provisions of law depends upon the circumstances of each case.[71]
In the present case, the petitioner courted the private complainant and proposed to
marry her. He assured her that he was single. He even brought his parents to the
house of the private complainant where he and his parents made the same
assurance that he was single. Thus, the private complainant agreed to marry the
petitioner, who even stated in the certificate of marriage that he was single. She
lived with the petitioner and dutifully performed her duties as his wife, believing
all the while that he was her lawful husband. For two years or so until the
petitioner heartlessly abandoned her, the private complainant had no inkling that he
was already married to another before they were married.

Thus, the private complainant was an innocent victim of the petitioners

chicanery and heartless deception, the fraud consisting not of a single act alone, but
a continuous series of acts. Day by day, he maintained the appearance of being a
lawful husband to the private complainant, who changed her status from a single
woman to a married woman, lost the consortium, attributes and support of a single
man she could have married lawfully and endured mental pain and humiliation,
being bound to a man who it turned out was not her lawful husband.[72]
The Court rules that the petitioners collective acts of fraud and deceit before,
during and after his marriage with the private complainant were willful, deliberate
and with malice and caused injury to the latter. That she did not sustain any
physical injuries is not a bar to an award for moral damages. Indeed, in Morris v.
Macnab,[73] the New Jersey Supreme Court ruled:
xxx The defendant cites authorities which indicate that, absent physical
injuries, damages for shame, humiliation, and mental anguish are not recoverable
where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper &
James, Torts, 1031 (1956). But the authorities all recognize that where the wrong
is willful rather than negligent, recovery may be had for the ordinary, natural, and
proximate consequences though they consist of shame, humiliation, and mental
anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585
(Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579,
591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants
conduct was not merely negligent, but was willfully and maliciously wrongful. It
was bound to result in shame, humiliation, and mental anguish for the plaintiff,
and when such result did ensue the plaintiff became entitled not only to
compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery
Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note,
Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The
plaintiff testified that because of the defendants bigamous marriage to her and the
attendant publicity she not only was embarrassed and ashamed to go out but
couldnt sleep but couldnt eat, had terrific headaches and lost quite a lot of weight.
No just basis appears for judicial interference with the jurys reasonable allowance
of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J.
Super 249, 117 A.2d 298 (App. Div.[74] 1955).

The Court thus declares that the petitioners acts are against public policy as they
undermine and subvert the family as a social institution, good morals and the
interest and general welfare of society.
Because the private complainant was an innocent victim of the petitioners
perfidy, she is not barred from claiming moral damages. Besides, even
considerations of public policy would not prevent her from recovery. As held
in Jekshewitz v. Groswald:[75]
Where a person is induced by the fraudulent representation of another to do an act
which, in consequence of such misrepresentation, he believes to be neither illegal
nor immoral, but which is in fact a criminal offense, he has a right of action
against the person so inducing him for damages sustained by him in consequence
of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v.
Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a
false representation by the defendant that he was divorced from his former wife,
whereby the plaintiff was induced to marry him, gave her a remedy in tort for
deceit. It seems to have been assumed that the fact that she had unintentionally
violated the law or innocently committed a crime by cohabiting with him would
be no bar to the action, but rather that it might be a ground for enhancing her
damages. The injury to the plaintiff was said to be in her being led by the promise
to give the fellowship and assistance of a wife to one who was not her husband
and to assume and act in a relation and condition that proved to be false and
ignominious. Damages for such an injury were held to be recoverable in Sherman
v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep.
336.
Furthermore, in the case at bar the plaintiff does not base her cause of action upon
any transgression of the law by herself but upon the defendants misrepresentation.
The criminal relations which followed, innocently on her part, were but one of the
incidental results of the defendants fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the
marriage relation have been maintained in other jurisdictions. Sears v. Wegner,
150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99
Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril
v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy
would not prevent recovery where the circumstances are such that the plaintiff
was conscious of no moral turpitude, that her illegal action was induced solely by
the defendants misrepresentation, and that she does not base her cause of action
upon any transgression of the law by herself. Such considerations distinguish this
case from cases in which the court has refused to lend its aid to the enforcement
of a contract illegal on its face or to one who has consciously and voluntarily
become a party to an illegal act upon which the cause of action is founded.
Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the award
of P200,000.00 for moral damages to be just and reasonable.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The
assailed decision of the Court of Appeals is AFFIRMED. Costs against the
petitioner.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairman

MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA

Associate Justice Associate Justice
On leave
MINITA V. CHICO-NAZARIO
Associate Justice

AT T E S TAT I O N
I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Associate Justice
Chairman, Second Division

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairmans Attestation, it is hereby certified that the conclusions in the above
decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

On leave.
Penned by Associate Justice Jose C. Reyes, Jr., with Associate Justices Conrado M. Vasquez, Jr. and Rebecca de
Guia-Salvador, concurring; rollo, pp. 28-41.
[2]
Penned by Judge Fernando Vil Pamintuan.
[3]
Records, p. 1.
[4]
Exhibit B, records, p. 7.
[5]
Exhibit A, id. at 6.
[6]
TSN, April 23, 2002, p. 15.
[7]
Exhibit B, records, p. 7.
[8]
TSN, April 23, 2002, p. 15.
[9]
Records, pp. 111-116.
[10]
58 Phil. 817 (1933).
[11]
1 Phil. 109 (1902).
[12]
G.R. No. 111656, March 20, 1996, 255 SCRA 202.
[13]
32 Phil 202 (1915).
[14]
G.R. No. 94053, March 17, 1993, 220 SCRA 20.
[15]
G.R. No. 137110, August 1, 2000, 337 SCRA 122.
[16]
G.R. No. 104818, September 17, 1993, 226 SCRA 572.
[17]
Rollo, p. 41.
[18]
Rollo, pp. 14-15.
[19]
Supra, at note 14.
[20]
CUELLO CALON, DERECHO PENAL REFORMADO, VOL. V, 627.
[21]
AQUINO, THE REVISED PENAL CODE, VOL. III, 497 (1988 ed.) (emphasis supplied).
[22]
Id. at 634.
[23]
People v. Dumpo, 62 Phil. 247 (1935).
[24]
Tres son los elementos esenciales del mismo; el vinculo matrimonial anterior, la celebracin de nuevo matrimonio
antes de la disolucin de ese vinculo anterior, y por ultimo, la intencin fraudulenta, que constituye la criminalidad
misma del acto. Este ultimo elemento no lo consigna el articulo, por hallarse indudablemente embebido en ese
principio anterior a todos los Codigos, e inscrito en el frontispicio del nuestro (Art. I.), que donde no hay voluntad,
no hay delito. xxx (CODIGO PENAL REFORMADO, TOMO 5, 560) Groizard is of the view that bigamy may be
committed by culpa. (id. at 558).
[25]
DERECHO PENAL REFORMADO, VOL. 1, 629-630.
[26]
Supra, at note 16.
[27]
Supra, at note 15.
[28]
ALBERT, THE REVISED PENAL CODE, 819 (1932 ed.).
[29]
Id.
[30]
L.B. REYES, THE REVISED PENAL CODE, BOOK ONE, 37 (13th ed. 1993).
[31]
United States v. Pealosa, 1 Phil. 109.
[32]
WHARTON, CRIMINAL LAW, VOLUME 1, 302.
[33]
People v. Vogel, 46 Cal.2d. 798; 299 P.2d 850 (1956).
[34]
WHARTON, CRIMINAL LAW, VOL. 1, 203.
[35]
Manahan, Jr. v. Court of Appeals, G.R. No. 111656, March 20, 1996, 255 SCRA 202.
[36]
Marbella-Bobis v. Bobis, G.R. No. 138509, July 31, 2000, 336 SCRA 747.
[37]
People v. Bitdu, supra, at note 10.
[38]
Geisselman v. Geisselman, 134 Md. 453, 107 A. 185 (1919).
[39]
WHARTON CRIMINAL LAW, VOL. 2, 2377 (12th ed., 1932).
[40]
Id.
[41]
Id.
[42]
TOLENTINO, THE NEW CIVIL CODE, VOL. I, 690.
[43]
Emphasis supplied.
[44]
The Family Code (Executive Order No. 209) took effect on August 4, 1988.
[45]
Navarro v. Domagtoy, A.M. No. MTJ-96-1088, July 19, 1996, 259 SCRA 129.
[1]

[46]

G.R. No. 136467, April 6, 2000, 330 SCRA 201.

64 Phil. 179 (1937).
[48]
Id. at 83.
[49]
81 Phil. 461 (1948).
[50]
Id. at 463.
[51]
98 Phil. 574 (1956).
[52]
107 Phil. 381 (1960).
[53]
AQUINO, REVISED PENAL CODE, VOL. III, 490.
[54]
Id. at 497.
[55]
PADILLA, COMMENTS ON THE REVISED PENAL CODE, VOL. IV, 717-718.
[56]
THE REVISED PENAL CODE, 1981 ED., VOL. II, 906.
[57]
Republic v. Nolasco, supra, at note 19.
[58]
HANDBOOK ON THE FAMILY CODE, 48-49.
[59]
THE FAMILY CODE OF THE PHILIPPINES ANNOTATED, 62-63 (1992 ed.).
[60]
REGALADO, CRIMINAL LAW CONSPECTUS, 633 (1st ed., 2000), citing Lukban v. Republic, supra.
[61]
Id. citing People v. Reyes, CA-G.R. No. 12107-R, June 30, 1955, and People v. Malana, CA-G.R. No. 5347,
January 30, 1940.
[62]
SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES, 358.
[63]
CA-G.R. No. 22573-R, April 23, 1959.
[64]
Article 2217, Civil Code.
[65]
Francisco v. Ferrer, Jr., G.R. No. 142029, February 28, 2001, 353 SCRA 261.
[66]
Id. at 266.
[47]

[67]

TOLENTINO, NEW CIVIL CODE, VOL. II, 658, citing People v. Plaza, 52 O.G. 6609.
Id.
[69]
Albenson Enterprises Corp. v. Court of Appeals, G.R. No. 88694, January 11, 1993, 217 SCRA 16.
[70]
Globe Mackay Cable and Radio Corporation v. Court of Appeals, G.R. No. 81262, August 25, 1989, 176 SCRA
778.
[71]
Id.
[72]
Leventhal v. Liberman, 186 N.E. 675 (1933).
[73]
135 A.2d 657 (1957).
[74]
Id. at 662.
[75]
Id. at 611-612.
[76]
164 N.E. 609 (1929).
[68]