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Salonga v Hermoso

This is not the first time petitioner Jovito R. Salonga came to


this Tribunal by way of a mandamus proceeding to compel the
issuance to him of a certificate of eligibility to travel. In the first
case, Salonga v. Madella, 1 the case became moot and
academic as the Office of the Solicitor General, in its answer to
the petition, stated that the travel eligibility certificate was not
denied and, as a matter of fact, had been granted.
Nonetheless, a brief separate opinion was filed, concurring in
the resolution, and worded thus: "Clearly this petition had
assumed a moot and academic character. Its dismissal is thus
indicated. May I just add these few words as my response to
the plea of petitioner in his Manifestation and Reply dated
October 28, 1978. This is how I would view the matter not only
where petitioner is concerned but in all other similar cases.
Respondent Travel Processing Center should discharge its
injunction conformably to the mandate of the Universal
Declaration of Human Rights on the right to travel. One of the
highlights of the keynote address of President Marcos in the
Manila World Law Conference in celebration of the World
Peace Through Law Day on August 21, 1977 was the lifting of
'the ban on international travel.' There should be fidelity to such
a pronouncement. It is the experience of the undersigned in his
lectures abroad the last few years, in the United States as well
as in Malaysia, Singapore and Australia, that respect accorded
constitutional rights under the present emergency regime had
elicited the commendation of members of the bench, the bar,
and the academe in foreign lands. It is likewise worthy of notice
that in his keynote address to the International Law
Association, President Marcos made reference to martial law
being instituted in accordance with law and that the
Constitution had been applied in appropriate cases. As an
agency of the executive branch, therefore, the Travel
Processing Center should ever be on its guard, lest the
impression be created that such declarations amount, to
paraphrase Justice Jackson, to no more than munificent
bequests in a pauper's will. Petitioner, to my mind, is justified,
the more so in the light of the Answer of Acting Solicitor
General Vicente Mendoza, to an affirmative response to his
prayer in his Manifestation and Reply 'that under the
circumstances mentioned in the Petition, Petitioner is entitled
to travel abroad, and that it is in recognition of this right that
Respondents have issued his Certificate of Eligibility to Travel,
as mentioned in the Answer. 2

The present petition is likewise impressed with a moot and


academic aspect. In the motion to dismiss of the Solicitor
General dated April 21, 1980, it was stated that the certificate
of eligibility to travel had been granted petitioner. A xeroxed
copy was enclosed. A resolution for dismissal is, therefore, in
order.

From the docket of this Court, it appears that other petitions of


this character had been filed in the past, namely, Santos v. The
Special Committee on Travel Abroad, 3 Pimentel v. Travel
Processing Center, 4 and Gonzales v. Special Committee on
Travel. 5 In the aforesaid cases, as in this and the earlier
Salonga petition, there was no occasion to pass on the merits
of the controversy as the certificates of eligibility to travel were
granted. The necessity for any ruling was thus obviated.
Nonetheless, in view of the likelihood that in the future this
Court may be faced again with a situation like the present
which takes up its time and energy needlessly, it is desirable
that respondent Travel Processing Center should exercise the
utmost care to avoid the impression that certain citizens
desirous of exercising their constitutional right to travel could
be subjected to inconvenience or annoyance. In the address of
President and Prime Minister Ferdinand E. Marcos before the
American Newspaper Publishers Association last Tuesday April
22, 1980, emphasized anew the respect accorded
constitutional rights The freedom to travel is certainly one of
the most cherished. He cited with approval the ringing
affirmation of Willoughby, who, as he noted was "partial to the
claims of liberty." 6 Burdick 7 and Willis, 8 both of whom were
equally convinced that there be no erosion to human rights

even in times of martial law, likewise received from President


Marcos the accolade of his approval. It would appear,
therefore, that in case of doubt of the Officer-in-Charge of the
Travel Processing Center, the view of General Fabian Ver
should immediately be sought. It goes without saying that the
petition for such certificate of eligibility to travel be filed at the
earliest opportunity to facilitate the granting thereof and
preclude any disclaimer as to the person desiring to travel
being in any way responsible for any delay.
WHEREFORE, the petition is dismissed for being moot and
academic.
Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez,
Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ.,
concur.

Marcos v Manglapus
In its decision dated September 15,1989, the Court, by a vote
of eight (8) to seven (7), dismissed the petition, after finding
that the President did not act arbitrarily or with grave abuse of
discretion in determining that the return of former President
Marcos and his family at the present time and under present
circumstances pose a threat to national interest and welfare
and in prohibiting their return to the Philippines. On September
28, 1989, former President Marcos died in Honolulu, Hawaii. In
a statement, President Aquino said:
In the interest of the safety of those who will take the death of
Mr. Marcos in widely and passionately conflicting ways, and for
the tranquility of the state and order of society, the remains of
Ferdinand E. Marcos will not be allowed to be brought to our
country until such time as the government, be it under this
administration or the succeeding one, shall otherwise decide.
[Motion for Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by
petitioners, raising the following major arguments:
1.
to bar former President Marcos and his family from
returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth but
also the protection of the Constitution and all of the rights
guaranteed to Filipinos under the Constitution;
2.
the President has no power to bar a Filipino from his
own country; if she has, she had exercised it arbitrarily; and
3.
there is no basis for barring the return of the family of
former President Marcos. Thus, petitioners prayed that the
Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos,
Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc,
Tommy Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from implementing
President Aquino's decision to bar the return of the remains of
Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot and
academic as to the deceased Mr. Marcos. Moreover, he
asserts that "the 'formal' rights being invoked by the Marcoses
under the label 'right to return', including the label 'return of
Marcos' remains, is in reality or substance a 'right' to
destabilize the country, a 'right' to hide the Marcoses' incessant
shadowy orchestrated efforts at destabilization." [Comment, p.
29.] Thus, he prays that the Motion for Reconsideration be
denied for lack of merit.
We deny the motion for reconsideration.
1.
It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to reconsider
the decision of the Court.
2.
After a thorough consideration of the matters raised in
the motion for reconsideration, the Court is of the view that no

compelling reasons have been established by petitioners to


warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario under
which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been
viewed to provide a catalytic effect, have not been shown to
have ceased. On the contrary, instead of erasing fears as to
the destabilization that will be caused by the return of the
Marcoses, Mrs. Marcos reinforced the basis for the decision to
bar their return when she called President Aquino "illegal,"
claiming that it is Mr. Marcos, not Mrs. Aquino, who is the
"legal" President of the Philippines, and declared that the
matter "should be brought to all the courts of the world."
[Comment, p. 1; Philippine Star, October 4, 1989.]
3.
Contrary to petitioners' view, it cannot be denied that
the President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply
with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in
the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific power of the President,
particularly those relating to the commander-in-chief clause,
but not a diminution of the general grant of executive power.
That the President has powers other than those expressly
stated in the Constitution is nothing new. This is recognized
under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate
branches.
Article II, [section] 1, provides that "The Executive Power shall
be vested in a President of the United States of America." In
Alexander Hamilton's widely accepted view, this statement
cannot be read as mere shorthand for the specific executive
authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of
article II, section 1, and the conditional language of article I,
[section] 1: "All legislative Powers herein granted shall be
vested in a Congress of the United States . . ." Hamilton
submitted that "[t]he [article III enumeration [in sections 2 and
31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of
execution power; leaving the rest to flow from the general grant
of that power, interpreted in confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme Court accepted
Hamilton's proposition, concluding that the federal executive,
unlike the Congress, could exercise power from sources not
enumerated, so long as not forbidden by the constitutional text:
the executive power was given in general terms, strengthened
by specific terms where emphasis was regarded as
appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in
Myers makes clear that the constitutional concept of inherent
power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the
Constitution are themselves exhausted by internal
enumeration, so that, within a sphere properly regarded as one
of "executive' power, authority is implied unless there or
elsewhere expressly limited. [TRIBE, AMERICAN
CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of
the President's implied or residual powers is tantamount to
setting the stage for another dictatorship. Despite petitioners'
strained analogy, the residual powers of the President under
the Constitution should not be confused with the power of the
President under the 1973 Constitution to legislate pursuant to
Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister),


there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the
regular National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue
the necessary decrees, orders, or letters of instruction, which
shall form part of the law of the land,
There is no similarity between the residual powers of the
President under the 1987 Constitution and the power of the
President under the 1973 Constitution pursuant to Amendment
No. 6. First of all, Amendment No. 6 refers to an express grant
of power. It is not implied. Then, Amendment No. 6 refers to a
grant to the President of the specific power of legislation.
4.
Among the duties of the President under the
Constitution, in compliance with his (or her) oath of office, is to
protect and promote the interest and welfare of the people. Her
decision to bar the return of the Marcoses and subsequently,
the remains of Mr. Marcos at the present time and under
present circumstances is in compliance with this bounden duty.
In the absence of a clear showing that she had acted with
arbitrariness or with grave abuse of discretion in arriving at this
decision, the Court will not enjoin the implementation of this
decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit."

Silverio v CA
This is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court praying that the Decision of respondent Court of
Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio
vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January
1990, as well as the Resolution of 29 June 1990 denying
reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of
Section 20 (4) of the Revised Securities Act in Criminal Case
No. CBU-6304 of the Regional Trial Court of Cebu. In due time,
he posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing
of the Information, respondent People of the Philippines filed
an Urgent ex parte Motion to cancel the passport of and to
issue a hold-departure Order against accused-petitioner on the
ground that he had gone abroad several times without the
necessary Court approval resulting in postponements of the
arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April
1988, issued an Order directing the Department of Foreign
Affairs to cancel Petitioner's passport or to deny his application
therefor, and the Commission on Immigration to prevent
Petitioner from leaving the country. This order was based
primarily on the Trial Court's finding that since the filing of the
Information on 14 October 1985, "the accused has not yet
been arraigned because he has never appeared in Court on
the dates scheduled for his arraignment and there is evidence
to show that accused Ricardo C. Silverio, Sr. has left the
country and has gone abroad without the knowledge and
permission of this Court" (Rollo, p. 45). Petitioner's Motion for
Reconsideration was denied on 28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met
a similar fate on 31 January 1990. Hence, this Petition for
Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed,
we resolved to give due course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in
not finding that the Trial Court committed grave abuse of
discretion amounting to lack of jurisdiction in issuing its Orders,
dated 4 April and 28 July 1988, (1) on the basis of facts
allegedly patently erroneous, claiming that the scheduled
arraignments could not be held because there was a pending

Motion to Quash the Information; and (2) finding that the right
to travel can be impaired upon lawful order of the Court, even
on grounds other than the "interest of national security, public
safety or public health."
We perceive no reversible error.
1)
Although the date of the filing of the Motion to Quash
has been omitted by Petitioner, it is apparent that it was filed
long after the filing of the Information in 1985 and only after
several arraignments had already been scheduled and
cancelled due to Petitioner's non-appearance. In fact, said
Motion to Quash was set for hearing only on 19 February
1988. Convincingly shown by the Trial Court and conformed to
by respondent Appellate Court is the concurrence of the
following circumstances:
1.
The records will show that the information was filed
on October 14, 1985. Until this date (28 July 1988), the case
had yet to be arraigned. Several scheduled arraignments were
cancelled and reset, mostly due to the failure of accused
Silverio to appear. The reason for accused Silverio's failure to
appear had invariably been because he is abroad in the United
States of America;
2.
Since the information was filed, until this date,
accused Silverio had never appeared in person before the
Court;
3.
The bond posted by accused Silverio had been
cancelled twice and warrants of arrest had been issued against
him all for the same reason failure to appear at scheduled
arraignments.
In all candidness, the Court makes the observation that it has
given accused Silverio more than enough consideration. The
limit had long been reached (Order, 28 July 1988, Crim. Case
No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April
1988 and 28 July 1988, were not based on erroneous facts, as
Petitioner would want this Court to believe. To all appearances,
the pendency of a Motion to Quash came about only after
several settings for arraignment had been scheduled and
cancelled by reason of Petitioner's non-appearance.
2)
Petitioner's further submission is that respondent
Appellate Court "glaringly erred" in finding that the right to
travel can be impaired upon lawful order of the Court, even on
grounds other than the "interest of national security, public
safety or public health."
To start with, and this has not been controverted by Petitioner,
the bail bond he had posted had been cancelled and Warrants
of Arrest had been issued against him by reason, in both
instances, of his failure to appear at scheduled arraignments.
Warrants of Arrest having been issued against him for violation
of the conditions of his bail bond, he should be taken into
custody. "Bail is the security given for the release of a person
in custody of the law, furnished by him or a bondsman,
conditioned upon his appearance before any court when so
required by the Court or the Rules (1985 Rules on Criminal
Procedure, as amended, Rule 114, Secs. 1 and 2).
The foregoing condition imposed upon an accused to make
himself available at all times whenever the Court requires his
presence operates as a valid restriction of his right to travel
(Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May
1986, 142 SCRA 149). A person facing criminal charges may
be restrained by the Court from leaving the country or, if
abroad, compelled to return (Constitutional Law, Cruz, Isagani
A., 1987 Edition, p. 138). So it is also that "An accused
released on bail may be re-arrested without the necessity of a
warrant if he attempts to depart from the Philippines without
prior permission of the Court where the case is pending.
Petitioner takes the posture, however, that while the 1987
Constitution recognizes the power of the Courts to curtail the
liberty of abode within the limits prescribed by law, it restricts
the allowable impairment of the right to travel only on grounds
of interest of national security, public safety or public health, as

compared to the provisions on freedom of movement in the


1935 and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel
were treated under one provision.1wphi1 Article III, Section
1(4) thereof reads:
The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly
including the liberty of travel, thus:
The liberty of abode and of travel shall not be impaired except
upon lawful order of the court or when necessary in the interest
of national security, public safety, or public health (Article IV,
Section 5).
The 1987 Constitution has split the two freedoms into two
distinct sentences and treats them differently, to wit:
Sec. 6. The liberty of abode and of changing the same within
the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public
safety, or public health, as may be provided by law.
Petitioner thus theorizes that under the 1987 Constitution,
Courts can impair the right to travel only on the grounds of
"national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be
interpreted to mean that while the liberty of travel may be
impaired even without Court Order, the appropriate executive
officers or administrative authorities are not armed with
arbitrary discretion to impose limitations. They can impose
limits only on the basis of "national security, public safety, or
public health" and "as may be provided by law," a limitive
phrase which did not appear in the 1973 text (The Constitution,
Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263).
Apparently, the phraseology in the 1987 Constitution was a
reaction to the ban on international travel imposed under the
previous regime when there was a Travel Processing Center,
which issued certificates of eligibility to travel upon application
of an interested party (See Salonga vs. Hermoso & Travel
Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no
means be construed as delimiting the inherent power of the
Courts to use all means necessary to carry their orders into
effect in criminal cases pending before them. When by law
jurisdiction is conferred on a Court or judicial officer, all
auxillary writs, process and other means necessary to carry it
into effect may be employed by such Court or officer (Rule 135,
Section 6, Rules of Court).
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of
Appeals, et al. (supra), to the effect that the condition imposed
upon an accused admitted to bail to make himself available at
all times whenever the Court requires his presence operates
as a valid restriction on the right to travel no longer holds under
the 1987 Constitution, is far from tenable. The nature and
function of a bail bond has remained unchanged whether
under the 1935, the 1973, or the 1987 Constitution. Besides,
the Manotoc ruling on that point was but a re-affirmation of that
laid down long before in People v. Uy Tuising, 61 Phil. 404
(1935).
Petitioner is facing a criminal charge. He has posted bail but
has violated the conditions thereof by failing to appear before
the Court when required. Warrants for his arrest have been
issued. Those orders and processes would be rendered
nugatory if an accused were to be allowed to leave or to
remain, at his pleasure, outside the territorial confines of the
country. Holding an accused in a criminal case within the reach
of the Courts by preventing his departure from the Philippines
must be considered as a valid restriction on his right to travel
so that he may be dealt with in accordance with law. The
offended party in any criminal proceeding is the People of the

Philippines. It is to their best interest that criminal prosecutions


should run their course and proceed to finality without undue
delay, with an accused holding himself amenable at all times to
Court Orders and processes.

In a Memorandum dated November 18, 1992, the panel of


investigators found that Civil Case No. 0033 does not pose a
prejudicial question which will warrant the suspension of the
filing of the criminal case.

WHEREFORE, the judgment under review is hereby


AFFIRMED. Costs against petitioner, Ricardo C. Silverio.
SO ORDERED.

The aforesaid Memorandum was received by Assistant


Ombudsman Abelardo L. Aportadera on December 1, 1992
who submitted his comment thereto on December 16, 1992 to
then Ombudsman Vasquez.

Cojuangco v SANDIGANBAYAN

On December 23, 1992, then Ombudsman Vasquez ordered


the panel of investigators to go to the specifics and not the
general averments on issue of prejudicial question.

This petition for prohibition under Section 2 of Rule 65 of the


Rules of Court seeks to dismiss Criminal Case No. 22018
entitled "People of the Philippines vs. Eduardo M. Cojuangco,
Jr., et al." now pending before respondent Sandiganbayan
(First Division), and to prohibit said court from further
proceeding with the case. Petitioner invokes his constitutional
right to due process, a speedy trial, and a speedy
determination of his cases before all judicial, quasi-judicial and
administrative bodies. Further, he prays for the issuance of a
Temporary Restraining Order and/or Writ of Preliminary
Injunction enjoining respondent Sandiganbayan (First Division)
from further enforcing and or implementing its order dated
February 20, 1995 which bans petitioner from leaving the
country except upon prior approval by said court. 1
Criminal Case No. 22018 is an offshoot of a complaint filed on
January 12, 1990, by the Office of the Solicitor General before
the Presidential Commission on Good Government (PCGG),
docketed as I.S. No. 74, against the former Administrator of the
Philippine Coconut Authority (PCA) and the former members of
the PCA Governing Board, petitioner among them, for violation
of Republic Act No. 3019, the Anti-Graft and Corrupt Practices
Act, as amended. In said complaint, the respondents were
charged "for having conspired and confederated together and
taking undue advantage of their public positions and/or using
their powers; authority, influence, connections or relationship
with the former President Ferdinand E. Marcos and former
First Lady, Imelda Romualdez-Marcos without authority,
granted a donation in the amount of Two Million Pesos
(P2,000,000.00) to the Philippine Coconut Producers
Federation (COCOFED), a private entity, using PCA special
fund, thereby giving COCOFED unwarranted benefits,
advantage and preference through manifest partiality, evident
bad faith and gross inexcusable negligence to the grave (sic)
and prejudice of the Filipino people and to the Republic of the
Philippines. 2
Subsequently, however, this Court ruled that all proceedings in
the preliminary investigation conducted by the PCGG were null
and void and the PCGG was directed to transmit the
complaints and records of the case to the Office of the
Ombudsman for appropriate action. 3
In a Resolution dated June 2, 1992, the panel of investigators
recommended the filling of an Information for violation of
Section 3(e) of R.A. No. 3019, as amended, against herein
petitioner and five other respondent.
As set out in the Memorandum of the Office of the Special
Prosecutor, subsequently, the following relevant incidents took
place:
The above Resolution dated June 2, 1992 was referred by
Assistant Ombudsman Abelardo L. Aportadera, Jr. to the Office
of the Special Prosecutor for review and if warranted, for the
preparation of the criminal information.
In a memorandum dated July l5, 1992 the Office of the Special
Prosecutor affirmed the recommendation as contained in the
Resolution dated June 2, 1992.
However, on August 19, 1992 then Ombudsman Conrado M.
Vasquez ordered the panel of investigators to discuss the
merits of the prejudicial question posed by respondent
Lobregat.

In a Memorandum dated December 1, 1993 the panel of


investigators recommended that the motion to suspend
proceedings be granted.
On December 3, 1993 then Ombudsman Vasquez referred for
comment to the Office of the Special Prosecutors the
Memorandum dated December 1, 1993 of the panel of
investigators on the issue of the existence of prejudicial
question.
In a Memorandum dated January 16, 1995, Special
Prosecution Officer Daniel B. Jovacon, Jr. resolved that no
prejudicial question exists to warrant the suspension of the
criminal proceedings which recommendation was approved by
then Ombudsman Vasquez on January 26, 1995. The
Information, together with the case record of OMB-0-90-2806,
was forwarded to the Office of the Ombudsman on February
10, 1995.
On February 16, 1995 Criminal Case No. 22018 was filed with
the Sandiganbayan and thereafter raffled to the First Division.
On February 17, 1995, an order for the arrest of petitioner was
issued by the respondent Sandiganbayan.
On February l9, 1995 petitioner filed with respondent court an
Opposition to Issuance of Warrant of Arrest with Motion For
Leave To File Motion For Reconsideration of Ombudsman
Resolutions. In his Opposition, petitioner alleged that since the
only documents attached to the Information and submitted to
respondent Sandiganbayan were the Resolution dated June 2,
1992 of the panel of investigators and the Memorandum dated
January 16, 1995 of the Office of the Special Prosecutor, the
same were not adequate for the determination of probable
cause for the issuance of a warrant of arrest by respondent
Sandiganbayan. Hence, petitioner claims the respondent
Sandiganbayan should recall the warrant of arrest already
issued or desist from issuing a warrant of arrest. Petitioner,
avers, furthermore that the filing of the information was
premature considering that he was not furnished a copy of the
Ombudsman's Resolution in violation of Section 27 of R.A No.
6770 and prays that he be given leave to file a motion for
reconsideration of the Ombudsman's Resolution dated June 2,
1992 and the Office of the Special Prosecutor's Memorandum
dated January 16, 1995.
On February 22, 1995, petitioner posted bail. On the same day
he likewise filed, through counsel, a Manifestation stating that
he was posting bail without prejudice to the Opposition To
Issuance of Warrant of Arrest with Motion For Leave To File a
Motion For Reconsideration of the Ombudsman's Resolution
which he filed.
In a Resolution dated February 20, 1995, the respondent
Sandiganbayan barred petitioner from leaving the country
except upon approval of the court.

In an Order dated February 22, 1995, the respondent


Sandiganbayan gave petitioner and the other accused twenty
(20) days to file their respective motions for reconsideration of
the Ombudsman's Resolution with the Office of the
Ombudsman. PCGG was likewise given a similar period within
which to file its comments to the motions for reconsideration.
Furthermore, the respondent Sandiganbayan ordered
petitioner to supplement or amplify his existing motion on the
issue of the propriety of the issuance of an Order of Arrest
based merely on the resolution of the Ombudsman in support
of the filing of the Information, among others.
On March 9, 1995, petitioner filed a Memorandum in
Amplification of Oppositon To Issuance of Warrant of Arrest.
In a Resolution dated March 14, 1995, petitioner was granted
additional fifteen (15) days or until March 29, 1995, within
which to file his motion for reconsideration with the Office of
the Ombudsman.
Petitioner filed his motion for reconsideration on March 28,
1995.
In a Resolution dated, April 3, 1995, the respondent
Sandiganbayan denied petitioner's motion seeking the recall of
the issuance of the warrant for his arrest.
On April 7, 1995, petitioner filed a motion for reconsideration of
the Resolution dated April 3, 1995 of the respondent
Sandiganbayan.

In an Order dated January 9, 1997, the respondent


Sandiganbayan ordered the prosecution to justify the
relationship that may be established with respect to the
COCOFED on one hand and the Philippine Coconut Authority
on the other, as a basis for justifying the position of the
prosecution in the case. Furthermore, upon information
provided by Prosecutors Tabanguil that the Office of the
Solicitor General has sought a reconsideration on the desire of
the prosecution to withdraw the information, the Office of the
Solicitor General was given fifteen (15) days to submit its
comment to the Motion to Withdraw Information. The petitioner
and the other accused were given the same period to reply to
the comment if they so desire. After which the matter will be
deemed submitted for resolution.
On January 17, 1997, the prosecution filed its compliance to
the Order dated January 9, 1997. On the other hand, the Office
of the Solicitor General filed its comment on January 24, 1997.
In an Order dated February 4, 1997, the respondent
Sandiganbayan ordered the PCGG lawyers to "present
themeselves before the respondent court and respond to the
claim of the OSG that the exhibits necessary are with the
PCGG so that the Republic might effectively substantiate its
position that probable cause exists. Furthermore, it is as much
the function of the court to determine the existence of probable
cause and the propriety of the withdrawal of the Information to
be assured that the evidence for the complainant has been
properly presented or the accused is properly protected at
preliminary investigation.

On May 25, 1995, petitioner was conditionally arraigned


pleading not guilty to the Information. The arraignment was
undertaken solely to accommodate the petitioner in his request
to travel pending the determination of probable cause against
him at the reinvestigation stage. The conditional arraignment is
subject to the condition that if petitioner is exonerated at the
preliminary investigation, the arraignment is set aside. On the
other hand, should there be cause against the petitioner either
as already charged or a separate charge which might be
related to the case pending, the arraignment will not serve as
basis for the invocation of the right against double jeopardy.

In an Order dated February 17, 1997, the respondent


Sandiganbayan, with the agreement of the parties, gave the
Office of the Solicitor General ten (10) days within which to
submit some form of cataloging and explanation of the
documents on record to the prosecution. On the other hand,
the prosecution was given fifteen (15) days from receipt of the
submission within which to review the matter once more and to
respond thereat.

In the meantime, in a Memorandum dated October 22, 1995,


Special Prosecution Officer Victorio U. Tabanguil found no
probable cause to warrant the filing against petitioner and the
other accused in Criminal Case No. 22018 and recommended
the dismissal of the case. The recommendation for dismissal
was approved by the Honorable Ombudsman on November
15, 1996.

On June 19, 1997, petitioner filed a Second Motion To Resolve


the Urgent Motion To Dismiss dated December 12, 1996.

On December 6, 1996, Special Prosecutors Officer Victorio U.


Tabanguil filed a Manifestation attaching a copy of the
Memorandum dated October 22, 1995 with the respondent
Sandiganbayan for its consideration.
On December 13, 1996 petitioner filed an Urgent Motion To
Dismiss alleging that with the reversal of the earlier findings of
the Ombudsman of probable cause, there was therefore
nothing on record before the respondent Sandiganbayan which
would warrant the issuance of a warrant of arrest and the
assumption of jurisdiction over the instant case.
On December 23, 1996 the Office of the Solicitor General, in
representation of the OCGG, filed with the Office of the Special
Prosecutor a motion for reconsideration of the Memorandum
dated October 22, 1996 recommending the dismissal of the
case against petitioner and the other accused in Criminal Case
No. 22018.
In an Order dated January 6, 1997, Special Prosecution Officer
Victorio U. Tabanguil merely noted the motion for
reconsideration dated December 23, 1996 oft he Office of the
Solicitor General.
On January 13, 1997, petitioner filed a Motion To Strike Out
Alternatively, Opposition To Complaint's Motion For
Reconsideration dated December 23, 1996 alleging that the
motion was filed out of time.

On June 13, 1997, the PCGG filed its Entry of Appearance


dated June 3, 1997.

On July 3, 1997, petitioner filed a Motion to Strike Out (Re


PCGG's Entry of Appearane) dated June 30, 1997.
On July 16, 1997, the PCGG filed a Opposition to the Motion to
Strike Out (Re: PCGG's Entry of Appearance).
On July 18, 1997, petitioner filed a Reply to the Oppositions to
Strike Out.
On July 31, 1997, the PCGG filed a Rejoinder to the Reply of
petitioner.
On July 23, 1998, petitioner filed a Third Motion To Resolve the
Urgent Motion To Dismiss dated December 12, 1996.
In an Order dated January 26, 1998, respondent
Sandiganbayan duly noted petitioner's Motion to Dismiss. 4
Hence, the present petition.
On July 22, 1998, the Court issued a resolution requiring
respondents to file their respective comments to the petition. 5
On August 5, 1998, petitioner filed a motion reiterating his
application for temporary restraining order and/or writ of
prelimary injunction with urgent motion for hearing thereon 6
citing the urgency of lifting the travel restriction on him in view
of the various problems involving the investments of San
Miguel Corporation (SMC) abroad which must be immediately
attended to by petitioner as duly elected Chairman and Chief
Executive Officer of SMC. Petitioner asserts that quite often, it
becomes necessary for him to attend meetings and
conferences abroad where attendance must be confirmed
promptly. Considering that he must first secure the permission
of respondent Sandiganbayan before he can travel abroad and

abide by the conditions imposed by said court upon the grant


of such permission, petitioner contends that it becomes
impossible for him to immediately attend to the aforecited
tasks.
On September 2, 1998, the Court noted the respective
comments to the petition filed by the Office of the Special
Prosecutor and the Solicitor General and required petitioner to
file a consolidated reply within ten (10) days from notice. 7
On September 3, 1998, petitioner filed a Second Motion
Reiterating Application for Temporary Restraining Order and/or
Writ of Preliminary Injunction with Urgent Motion for Hearing, 8
arguing among others that the continued maintenance of the
hold-departure order against him has deleterious consequence
not only on him personally but also on San Miguel Corporation,
a publicly listed stock company, of which he is now Chairman
and Executive Officer. 9
On September 7, 1998, the Court resolved to defer action on
the aforementioned second motion reiterating the application
for the issuance of a temporary restraining order and/or a writ
of preliminary injunction until the filing of petitioner's
Consolidated Reply and required the Sandiganbayan to file its
own Comment on the petition in view of the Comment filed by
the Office of the Special Prosecutor divergent from the position
taken by respondent Sandiganbayan. 10
On September 10, 1998, petitioner filed a Consolidated Reply
11 and prayed that his Second Application for a Tempory
Restraining Order and/or Writ of Preliminary Injunction with
Urgent Motion for hearing dated September 2, 1998 be now
acted upon.
On September 17, 1998, respondent Sandiganbayan filed a
motion for extension of time to file its Comment to the petition.
Subsequently, petitioner filed his Third Motion Reiterating
Application for Temporary Restraining Order and/or Writ of
Preliminary Injunction with Urgent Motion for Hearing 12 in
view of the urgency of lifting the ban on foreign travel imposed
on him by respondent Sandiganbayan.
After respondent Sandiganbayan filed its comment on October
5, 1998, the Court in its Resolution dated October 7, 1998,
noted the aforesaid comment and resolved to set the case for
oral argument on October 21, 1998. 13
During the oral argument, the Court suggested that the parties
take up in their arguments the following issues:
(1)
whether the warrant of arrest issued by respondent
Sandiganbayan is null and void, or should now be lifted if
initially valid;
(2)
whether petitioner's basic rights to due process,
speedy trial and speedy disposition of the case have been
violated as to warrant dismissal of Criminal Case No. 22018;
and
(3)
whether the ban on foreign travel imposed on
petitioner per Order of February 20, 1995 should be vacated to
enable petitioner to go abroad without prior permission of, and
other restrictions imposed by the respondent Sandiganbayan.
After hearing the arguments of the parties, the Court resolved
to require them to submit their respective memoranda on the
related issues taken up on the hearing including the merits of
the case within twenty (20) days. The motion of counsel for
petitioner that the issue of lifting the ban on foreign travel
imposed on petitioner be resolved first, was held under
advisement. 15
On November 6, 1998, petitioner filed another Motion to
Resolve Petitioner's "Motion for Issuance of a Temporary
Restraining Order or Writ of Preliminary Injunction" Enjoining
Enforcement of Respondent Sandiganbayan's Order dated
February 20, 1995 (Hold Departure Order) with an alternative
prayer to travel abroad within a period of six (6) months. 16
In its Resolution dated November 9, 1998, the Court noted the
aforesaid motion and directed petitioner that in the meanwhile,

he may address his request for permission to travel abroad to


the Sandiganbayan. 17
On November 12, 1998, petitioner filed a Motion for
Reconsideration of the Court's resolution dated November 9,
1998 and argued that:
(6)
While the petitioner may indeed obtain some relief by
addressing his "prayer for permission to travel abroad to the
Sandiganbayan" to a large extent, this defeats the purpose of
the petition because petitioner has precisely come to the
Supreme Court to obtain relief from an oppressive regime of
authorization to travel abroad that the Order of the
Sandiganbayan of February 20, 1995 (Annex 'E', Petition) has
imposed. Significantly, not any of the respondents have
opposed petitioner's application for the issuance of temporary
restraining order, and/or writ of preliminary injunction or for
permission to travel abroad. 18
On November 20, 1998, petitioner filed a Manifestation 19 in
support of his motion for reconsideration, setting forth the
urgency of lifting the ban on foreign travel imposed on him in
view of the need to oversee the critical stages in the
international operations of SMC as its Chairman and Chief
Executive Officer.
On November 20, 1998, the Office of the Solicitor General filed
a Manifestation indicating that it is not interposing any
objection to petitioner's prayer that he be allowed to travel
abroad.
With the submission of the parties' respective memoranda, the
Court now proceeds to resolve the petition.
As postulated during the oral argument, three main issues
confront us in this petition, to wit:
(1)
whether the warrant of arrest issued by respondent
Sandiganbayan is null and void, or should now be lifted if
initially valid;
(2)
whether petitioner's basic rights to due process,
speedy trial and speedy disposition of the case have been
violated as to warrant dismissal of Criminal Case No. 22018;
and
(3)
whether the ban on foreign travel imposed on
petitioner per Order of February 20, 1995 should be vacated to
enable petitioner to go abroad without prior permission of and
other restrictions imposed by the respondent Sandiganbayan.
20
On the first issue, petitioner and the Office of the Special
Prosecutor both argue that the warrant of arrest issued by
respondent Sandiganbayan is null and void for lack of sufficient
basis upon which it could have "personally" determined the
existence of probable cause to issue the warrant of arrest
against him. They contend that there was a violation of Section
2, Article III of the Constitution because the Information in
Criminal Case No. 22018 was accompanied only by the
Resolution dated June 2, 1992 of the Panel of Graft
Investigators of the Office of the Ombudsman recommending
the filing of the information and the Memorandum dated
January 16, 1995 of the Office of the Special Prosecutor
denying the existence of a prejudicial question which will
warrant the suspension of the filing of the criminal case. Their
argument is principally anchored on the pronouncements made
in the case of Ho vs. People that reliance on the prosecutor's
report alone is not sufficient in determining whether there is
probable cause for the issuance of a warrant of arrest.
Consequent to the nullity of the warrant of arrest, petitioner
further argues that the Sandiganbayan has not acquired
jurisdiction over him and is without power to exercise the
same.

However, the Office of the Special Prosecutor and the Office of


the Solicitor General maintain that any infirmity that may have
attended the issuance of the warrant of arrest was cured by
petitioner's voluntary submission to the jurisdiction of the
respondent Sandiganbayan when petitioner posted bail and
subsequently invoked the jurisdiction of the Sandiganbayan by
filing numerous motions wherein he sought affirmative reliefs.
Now, pertinent to the issue at hand is the second clause of
Section 2, Article III of the 1987 Constitution, which provides
that:
Sec. 2. . . . no search warrant or warrant of arrest shall issue
except upon a probable cause to be determined personally by
the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized. (Emphasis supplied)
In Ho vs. People, 22 the Court had the opportunity to elucidate
on the matter of determining of probable cause to merit the
issuance of a warrant of arrest:
First, . . . the determination of probable cause by the
prosecutor is for a purpose different from that which is to be
made by the judge. Whether there is reasonable ground to
believe that the accused is guilty of the offense charged and
should be held for trial is what the prosecutor passes upon.
The judge, on the other hand, determines whether a warrant of
arrest should be issued against the accused, i.e., whether
there is a necessity for placing him under immediate custody in
order not to frustrate the ends of justice. Thus, even if both
should base their findings on one and the same proceeding or
evidence, there should be no confusion as to their distinct
objectives.
Second, since their objectives are different, the judge cannot
rely solely on the report of the prosecutor in finding probable
cause to justify the issuance of a warrant of arrest. Obviously
and understandably, the contents of the prosecutor's report will
support his own conclusion that there is reason to charge the
accused of an offense and hold him for trial. However, the
judge must decide independently. Hence, he must have
supporting evidence, other than the prosecutor's bare report,
upon which to legally sustain his own findings on the existence
(or nonexistence) of a probable cause to issue an arrest order.
This responsibility of determining personally and independently
the existence or nonexistence of probable cause is lodged in
him by no less than the most basic law of the land.
Parenthetically, the prosecutor could ease the burden of the
judge and speed up the litigation process by forwarding to the
latter not only the information and his bare resolution finding
probable cause, but also so much of the records and the
evidence on hand as to enable His Honor to make his personal
and separate judicial finding on whether to issue a warrant of
arrest.
Lastly, it is not required that the complete or entire records of
the case during the preliminary investigation be submitted to
and examined by the judge. We do not intend to unduly burden
trial courts by obliging them to examine the complete records
of every case all the time simply for the purpose of ordering the
arrest of an accused. What is required, rather, is that the judge
must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of
witnesses or transcripts of stenographic notes, if any) upon
which to make his independent judgment or, at the very least,
upon which to verify the findings of the prosecutor as to the
existence of probable cause. The point is: he cannot rely solely
and entirely on the prosecutor's recommendation, as
Respondent Court did in this case. Although the prosecutor
enjoys the legal presumption of regularity in the performance of
his official duties and functions, which in turn gives his report
the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause
in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he
relies merely on the certification or the report of the
investigating officer. 23

As alleged by petitioner, in the case at bar, the Sandiganbayan


had two pieces of documents to consider when it resolved to
issue the warrant of arrest against the accused: (1) the
Resolution dated June 2, 1992 of the Panel of Investigators of
the Office of the Ombudsman recommending the filing of the
Information and (2) the Memorandum dated June 16, 1995 of
the Office of the Special Prosecutor denying the existence of a
prejudicial question which will warrant the suspension of the
criminal case. The Sandiganbayan had nothing more to
support its resolution.
In Roberts vs. Court of Appeals, 24 we struck down as invalid
an order for the issuance of a warrant of arrest which were
based only on "the information, amended information and Joint
Resolution", without the benefit of the records or evidence
supporting the prosecutor's finding of probable cause. And in
Ho vs. People, 25 we declared that respondent "palpably
committed grave abuse of discretion in ipso facto issuing the
challenged warrant of arrest on the sole basis of the
prosecutor's findings and recommendation, and without
determining on its own the issue of probable cause based on
evidence other than such bare findings and recommendation.
Similarly, we are now constrained to rule that herein
respondent court failed to abide by the constitutional mandate
of personally determining the existence of probable cause
before issuing a warrant of arrest. For the two cited documents
were the product of somebody else's determination, insufficient
to support a finding of probable cause by the Sandiganbayan.
Hence, the warrant of arrest issued by respondent court on
February 17, 1995 against herein petitioner is palpably invalid.
Consequent to the nullity of the warrant of arrest, the crucial
issue now posed is whether or not respondent Sandiganbayan
could still exercise jurisdiction over the petitioner and proceed
with the trial of the case.
As already adverted to, the Office of the Special Prosecutor
and the Office of the Solicitor General are in agreement, that
whatever infirmity might have attended the issuance of the
warrant of arrest against petitioner, it was cured by petitioner's
subsequent act of voluntarily submitting to respondent court's
jurisdiction by posting his bail and filing the following pleadings
which sought affirmative relief, to writ: (1) Opposition to
Issuance of Warrant of Arrest with Motion for Leave to File
Motion for Reconsideration; (2) Motion for extension of time to
file Motion for Reconsideration. (3) seven Motions to Travel
Abroad and two Motions for Extension of time to stay abroad.
27 Hence, they contend that respondent court's jurisdiction
over petitioner has remained in effect.
Petitioner objects to this contention, and asserts that "since the
warrant of arrest issued by respondent Sandiganbayan is null
and void, it never acquired jurisdiction over the person of the
petitioner; as a consequence, it never acquired jurisdiction to
take cognizance of the offense charged and to issue any order
adverse to the rights of petitioner, including an Order restricting
his right to travel. 28 According to petitioner, the submission of
both the Office of the Special Prosecutor and the Office of the
Solicitor General is not only absurd but also oppressive and
offensive to the Bill Rights since it would mean that to preserve
his right against the issuance of a warrant of arrest without
probable cause determined in accordance with Sec. 2, Article
III of the Constitution, petitioner should have allowed himself to
be incarcerated or imprisoned from the time the warrant of
arrest was issued on February 20, 1995 up to the present, or
for more than three (3) years now, and continue to be
imprisoned until the Supreme Court decides to declare the
arrest void. 29
On this score, the rule is well-settled that the giving or posting
of bail by the accused is tantamount to submission of his
person to the jurisdiction of the court. 30 Thus, it has been held
that:
When a defendant in a criminal case is brought before a
competent court by virtue of a warrant of arrest or otherwise, in
order to avoid the submission of his body to the jurisdiction of
the court he must raise the question of the court's jurisdiction
over his person at the very earliest opportunity. If he gives bail,

demurs to the complaint or files any dilatory plea or pleads to


the merits, he thereby gives the court jurisdiction over his
person.
Conceding again that the warrant issued in this case was void
for the reason that no probable cause was found by the court
before issuing it, the defendant waived all his rights to object to
the same by appearing and giving bond. 31
By posting bail, herein petitioner cannot claim exemption effect
of being subject to the jurisdiction of respondent court. While
petitioner has exerted efforts to continue disputing the validity
of the issuance of the warrant of arrest despite his posting bail,
his claim has been negated when he himself invoked the
jurisdiction of respondent court through the filing of various
motions that sought other affirmative reliefs.
As ruled in La Naval Drug vs. CA 32.
[L]ack of jurisdiction over the person of the defendant may be
waived either expressly or impliedly. When a defendant
voluntarily appears, he is deemed to have submitted himself to
the jurisdiction of the court. If he so wishes not to waive this
defense, he must do so seasonably by motion for the purpose
of objecting to the jurisdiction of the court, otherwise, he shall
be deemed to have submitted himself to that jurisdiction.
Moreover, "[w]here the appearance is by motion for the
purpose of objecting to the jurisdiction of the court over the
person, it must be for the sole and separate purpose of
objecting to said jurisdiction. If the appearance is for any other
purpose, the defendant is deemed to have submitted himself to
the jurisdiction of the court. Such an appearance gives the
court jurisdiction over the person. 33
Verily, petitioner's participation in the proceedings before the
Sandiganbayan was not confined to his opposition to the
issuance of a warrant of arrest but also covered other matters
which called for respondent court's exercise of its jurisdiction.
Petitioner may not be heard now to deny said court's
jurisdiction over him. Nor can we ignore the long line of
precedents declaring that where the accused had posted bail,
as required, to obtain his provisional liberty, "it becomes futile
to assail the validity of the issuance of the warrants of arrest.
As to petitioner's contention that he should have just allowed
himself to stay in jail pending the resolution of his opposition to
the issuance of the warrant of arrest against him, if only to
avoid waiving his right to question the jurisdiction of
respondent court, the Office of the Special Prosecutor has
pointed out that petitioner is not without a remedy. Petitioner
could have filed a petition for certiorari and prohibition with
prayer for the issuance of a temporary restraining order, rather
than actively participate in the proceedings before the
Sandiganbayan. And as exemplified by the case of Allado vs.
Diokno, 35 this remedy has already proved to be effective.
Against the continued exercise of jurisdiction by respondent
Sandiganbayan in Criminal Case No. 22018, petitioner also
invokes the Memorandum of the Office of the Special
Prosecutor dated October 22, 1995 recommending the
dismissal of the case against him due to the absence of
probable cause, which was later on approved by the
Ombudsman on November 15, 1996. Citing the case of
Torralba vs. Sandiganbayan, 36 petitioner argues that this
Memorandum is an integral part of the preliminary investigation
and should take precedence notwithstanding the fact that the
same was made after the filing of the Information before the
Sandiganbayan, for to deny any efficacy to the finding of the
Office of the Special Prosecutor would negate the right of the
petitioner to a preliminary investigation.
The well-entrenched rule however, as laid down by the case of
Crespo vs. Mogul 37 is that:
. . . once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the sound discretion of the
Court. Although the fiscal retains the direction and control of
the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial

court. The Court is the best and sole judge on what to do with
the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who
has the option to grant or deny the same. It does nor matter if
this is done before or after the arraignment of the accused or
that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the
records of the investigation.
Nevertheless, petitioner claims exception to this rule by making
this distinction:
b.
The preliminary investigation in Crespo vs. Mogul,
supra, was conducted by the Office of the Provincial Fiscal
and, following established procedure with respect to such
preliminary investigations, the preliminary investigation
conducted by the fiscal, in the language of Crespo, is
"terminated upon the filing of the information in the proper
court" (at p. 470). On the other hand, the instant case involves
a preliminary investigation conducted by the Office of the
Special Prosecutor pursuant to Sec. 11[4](a), and under Sec.
27 of R.A. No. 6770. In preliminary investigations conducted by
the Office of the Special Prosecutor, the respondent has the
right to file a motion for reconsideration of any resolution within
five (5) days from receipt of written notice, and pursuant to
Sec. 7, Rule II of Administrative Order No. 7 (Rules of
Procedure of the Ombudsman), the respondent has the right to
file a motion for reconsideration within fifteen (15) days from
notice of the Resolution of the Ombudsman. Until the motion
for reconsideration is resolved, preliminary investigation is not
terminated notwithstanding filing of information in court. In the
instant case, no copy of the Resolution of the Office of the
Special Prosecutor which brought about the filing of the
Information, was served on the petitioner; consequently, when
the Information was filed, the preliminary investigation had not
yet been terminated. It follows that the Resolution of the Office
of the Special Prosecutor (approved by the Ombudsman)
resolving in petitioner's favor the "Motion for Reconsideration"
he had filed, now finding no probable cause, was an integral
part of the preliminary investigation, not subject to review by
the Sandiganbayan (see Torralba vs. Sandiganbayan, 230
SCRA 33 [1994]. 38
Petitioner's reliance on Torralba vs. Sandiganbayan is not, in
our view, persuasive. In that case the petitioners were not
given any chance at all to seek reconsideration from the
Ombudsman's final resolution because they were not furnished
with a copy of the final resolution of the Ombudsman that could
have enabled them to file a motion for reconsideration. As a
result, the Court declared that "petitioners were not only
effectively denied the opportunity to file a motion for
reconsideration of the Ombudsman's final resolution but also
deprived of their right to a full preliminary investigation
preparatory to the filing of the information against them. 39
In the case at bar, however, notwithstanding the filing of the
Information before the Sandiganbayan, petitioner was able to
file a motion for reconsideration of the Ombudsman's
Resolution with leave of court, and in fact his two motions for
extensions to file the same were granted by the respondent
court. 40 This eventually paved the way for the filing of
subsequent Memorandum of the Office of the Special
Prosecutor, which was later on approved by the Ombudsman,
recommending the dismissal of the case against him. However,
since the Information has already been filed before the
Sandigabayan, the resolution of the aforesaid recommendation
now lies within the jurisdiction and discretion of respondent
court. Parenthetically, in the Torralba case, we did not
altogether deprive the Sandiganbayan of its jurisdiction to
proceed with the case, despite the defect in the conduct of the
preliminary investigation, since we declared that:
The incomplete preliminary investigation in this case, however,
does not warrant the quashal of the information, nor should it
obliterate the proceedings already had. Neither is the court's
jurisdiction nor validity of an information adversely affected by
deficiencies in the preliminary investigation. Instead, the
Sandiganbayan is to hold in abeyance any further proceedings
therein and to remand the case to the Office of the

Ombudsman for the completion of the preliminary


investigation, the outcome of which shall then be indorsed to
Sandiganbayan for its appropriate action.

dismiss quite long, considering that all pertinent pleadings


required by the Sandiganbayan were already submitted.

Clearly, consistent with the rule in Crespo vs. Mogul, after the
filing of the information in court, "any disposition of the case as
to its dismissal or the conviction or acquittal of the accused
rests in the sound discretion of the Court.

Even if petitioner himself might have contributed to said delay,


as contended by respondent, in our view it is best that the case
be resolved on the merits by the Sandiganbayan with due
regard to petitioner's right to due process, speedy trial and
speedy disposition of the case against him and his co-accused.

Proceeding now to the second issue, petitioner maintains that


the long delay that characterized the proceedings in Criminal
Case No. 22018 before respondent Sandiganbayan has
resulted in the violation of his Constitutional right to a speedy
trial and a speedy determination of his case. Thus, petitioner
submits that:

Finally, with respect to the issue of whether or not the ban on


foreign travel should be continued, as imposed on petitioner by
respondent Sandiganbayan per its Order dated February 20,
1995 with accompanying restrictions in effect, we resolve to
rule in the negative. The travel ban should be lifted,
considering all the circumstances now prevailing.

409. It has been more than three (3) years since the
Information in Criminal Case No. 22018 was filed with
respondent Sandiganbayan. More than one and a half (1/2)
years have elapsed since the Office of the Special Prosecutor
filed its Manifestation seeking the dismissal of the case. Based
on the Office of the Special Prosecutor's finding of the absence
of probable cause, petitioner filed on December 13, 1996, an
"Urgent Motion To Dismiss". Three times, on March 24, 1997,
June 18, 1997 and January 23, 1998, petitioner has sought
resolution of his "Urgent Motion To Dismiss." These
notwithstanding, the dismissal of the information as to
petitioner remains pending and petitioner continues to be
under criminal indictment constrained to suffer without
justification in law and the Constitution, the humiliation, the
restraints to liberty and the tormenting anxieties of an accused.

The rule laid down by this Court is that a person facing a


criminal indictment and provisionally released on bail does not
have an unrestricted right to travel, the reason being that a
person's right to travel is subject to the usual constraints
imposed by the very necessity of safeguarding the system of

Respondents concede that there has indeed been some delay


but deny that it amounted to a violation of petitioner's right of
speedy disposition of his case. They cite as justification the
reorganization of the Sandiganbayan on September 23, 1997
wherein it was reconstituted into five (5) Divisions; 44 (2) the
filing of motions by petitioner seeking affirmative reliefs from
the Sandiganbayan; (3) the failure of petitioner himself to
invoke his right to speedy resolution of his pending motions
prior to the filing of this petition; 45 (4) the heavy caseload of
respondent court. 46
The right to a speedy disposition of a case, like the right to
speedy trial, is deemed violated only when the proceeding is
attended by vexatious, capricious, and oppressive delays. 47 It
should be emphasized that the factors that must be taken into
account in determining whether this constitutional rights has
been violated are as follows: (1) the length of delay, (2) the
reason for such delay and (3) the assertion or failure to assert
such right by the accused, and the prejudice caused by the
delay. 48
As in previous occasions, the Court takes judicial cognizance
of the fact that structural reorganizations 49 and the ever
increasing case load of courts have adversely affected the
speedy disposition of the cases pending before them.
In the instant case, however, the Court finds that delay
concerns the resolution of petitioner's "Urgent Motion to
Dismiss", which is an offshoot of the Memorandum of the
Office of the Special Prosecutor recommending the dismissal
of the case. Such delay is now far from excusable. Petitioner's
Motion to Dismiss has been filed as early as December 13,
1996 and, on three occasions, petitioner has moved for the
urgent resolution of this motion. 50 What further militates
against further delay in resolving this case is the fact that the
government prosecutors themeselves concede that this case is
of paramount importance, involving as it does "the recovery of
the ill-gotten wealth or government funds, unlawfully used or
misused by persons close or percieved to be close to the
Marcoses. 51 Respondent court declared in its Order dated
February 17, 1997 that the matter would be deemed submitted
for resolution upon compliance with the Office of the Special
Prosecutor as to whether there is indeed no probable cause
against petitioner, 52 which compliance was submitted by the
Office of the Special Prosecutor on March 17, 1997. 53 Under
these circumstances, the Court does find the period of more
than one year that elapsed for resolving petitioner's motion to

justice. 54 But, significantly, the Office of the Solicitor General


in its Manifestation dated November 20, 1998 indicated that it
is not interposing any objection to petitioner's prayer that he be
allowed to travel abroad based on the following considerations:
. . . (1) that it is well within the power of this Court to supend its
own rules, including the second paragraph, Section 23, Rule
114 of the Rules of Court; (2) that it has been shown in the
past that the petitioner has always returned to the Philippines
after the expiration of the period of his allowed travel; and (3)
that petitioner, now Chairman of the Board of San Miguel
Corporation, may be constrained to leave the country for
business purposes, more often than he had done in the past,
It however recommended that the period of travel should be
reduced to three (3) months instead of six (6) months as
requested by petitioner and that the latter should be required to
post an additional cash bond equivalent to the present cash
bond posted by him. 56
Moreover, prescinding from our initial declaration that the
issuance of warrant of arrest against petitioner by respondent
court is invalid, it now becomes necessary that there be strong
and compelling reasons to justify the continued restriction on
petitioner's right to travel abroad. Admittedly, all of petitioner's
previous requests to travel abroad has been granted and that,
as confirmed by the Office of the Solicitor General, that
petitioner has always returned to the Philippines and complied
with the restrictions imposed on him. The necessity of further
denying petitioner's right to travel abroad, with attendant
restrictions, appears less than clear. The risk of flights is further
diminished in view of petitioner's recent reinstatement as
Chairman and Chief Executive Officer of San Miguel
Corporation, though he has now more justification to travel so
as to oversee the entire operations of that company. In this
regard, it has to be conceded that this assumption of such vital
post has come at a time when the current economic crisis has
adversely affected the international operations of many
companies, including San Miguel. The need to travel abroad
frequently on the part of petitioner, to formulate and implement
the necessary corporate strategies and decisions, could not be
forestalled. These considerations affecting the petitioner's
duties to a publicly held company, militate against imposing
further restrictions on petitioner's right to travel abroad.
WHEREFORE, the Court hereby resolves to DISMISS the
petition insofar as the dismissal of Criminal Case No. 22018
against the petitioner is concerned. Respondent
Sandiganbayan (First Division) is hereby ordered to proceed
with the resolution of the pending motions and incidents in
Criminal Case No. 22018 with utmost dispatch. Meanwhile, the
Resolution of the Sandiganbayan (First Division), dated
February 20, 1995, imposing a ban on petitioner's travel
abroad without its prior approval pending the resolution of
Criminal Case No. 22018 is, for the reasons heretofore
advanced, hereby LIFTED for a period of three (3) months
counted from the finality of this decision. Any similar request

during the pendency of said case before the Sandiganbayan


shall be addressed to that court.
No pronouncement as to cost.

SO ORDERED.

Yap v CA
The right against excessive bail, and the liberty of abode and
travel, are being invoked to set aside two resolutions of the
Court of Appeals which fixed bail at P5,500,000.00 and
imposed conditions on change of residence and travel abroad.
For misappropriating amounts equivalent to P5,500,000.00,
petitioner was convicted of estafa by the Regional Trial Court
of Pasig City1 and was sentenced to four years and two
months of prision correctional, as minimum to eight years of
prision mayor as maximum, "in addition to one (1) year for
each additional P10,000.00 in excess of P22,000.00 but in no
case shall it exceed twenty (20) years."2 He filed a notice of
appeal, and moved to be allowed provisional liberty under the
cash bond he had filed earlier in the proceedings. The motion
was denied by the trial court in an order dated February
17,1999.
After the records of the case were transmitted to the Court of
Appeals, petitioner filed with the said court a Motion to Fix Bail
For the Provisional Liberty of Accused Appellant Pending
Appeal, invoking the last paragraph of Section 5, Rule 114 of
the 1997 Revised Rules of Court. Asked to comment on this
motion, the Solicitor General opined that petitioner may be
allowed to post bail in the amount of P5,500,000.00 and be
required to secure "a certification/guaranty from the Mayor of
the place of his residence that he is a resident of the area and
that he will remain to be so until final judgment is rendered or
in case he transfers residence, it must be with prior notice to
the court and private complainant."3 Petitioner filed a Reply,
contending that the proposed bail ofP5,500,000.00 was
violative of his right against excessive bail.
The assailed resolution of the Court of Appeals4, issued on
October 6, 1999, upheld the recommendation of the Solicitor
General; thus, its dispositive portion reads:
WHEREFORE, premises considered, the "Motion to Fix Bail
For Provisional Liberty of Accused-Appellant Pending Appeal"
is hereby GRANTED. Accused-appellant Francisco Yap, Jr.,
a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the
amount of Five Million Five Hundred Thousand
(P5,500,000.00) Pesos, subject to the following conditions, viz.
(1) He (accused-appellant) secures a certification/guaranty
from the Mayor of the place of his residence that he is a
resident of the area and that he will remain to be a resident
therein until final judgment is rendered or in case he transfers
residence, it must be with prior notice to the court;
(2) The Commission of lmmigration and Deportation (CID) is
hereby directed to issue a hold departure order against
accused-appellant; and

The respondent Court of Appeals committed grave abuse of


discretion in fixing the bail of the provisional liberty of petitioner
pending appeal in the amount of P5 .5 million.
The respondent Court of Appeals committed grave abuse of
discretion in basing the bail for the provisional liberty of the
petitioner on his civil liability.
The respondent Court of Appeals unduly restricted petitioner's
constitutional liberty of abode and travel in imposing the other
conditions for the grant of bail.
Petitioner contends that the Court of Appeals, by setting bail at
a prohibitory amount, effectively denied him his right to bail. He
challenges the legal basis of respondent court for fixing bail at
P5,500,000.00, which is equivalent to the amount of his civil
liability to private complainant Manila Mahogany Marketing
Corporation, and argues that the Rules of Court never intended
for the civil liability of the accused to be a guideline or basis for
determining the amount of bail. He prays that bail be reduced
to at least P40,000.00, citing the maximum amount of bail that
can be posted for the crime of estafa under the 1996 Bail Bond
Guide, or P20,000.00, equivalent to the amount of bail he
posted during the trial of the case.6
On the other hand, the Solicitor General maintains that no
grave abuse of discretion could be ascribed to the Court of
Appeals for fixing the amount of bail at P5,500,000.00
considering the severity of the penalty imposed, the weight of
the evidence against petitioner, and the gravity of the offense
of which petitioner was convicted by the RTC. He asserted that
the P5,500,000.00 not only corresponded to civil liability but
also to the amount of fraud imputed to petitioner. The Solicitor
General further pointed out the probability of flight in case
petitioner is released on bail, it having been established that
petitioner was in possession of a valid passport and visa and
had in fact left the country several times during the course of
the proceedings in the lower court. It was also shown that
petitioner used different names in his business transactions
and had several abodes in different parts of the country.
As for the conditions imposed by the bail bond, the Solicitor
General advanced that all that the Court of Appeals requires is
notice in case of change of address; it does not in any way
impair petitioner's right to change abode for as long as the
court is apprised of his change of residence during the
pendency of the appeal.
Petitioner's case falls within the provisions of Section 5, Rule
114 of the 1997 Rules of Court which states:
SEC. 5. Bail, when discretionary. -- Upon conviction by the
Regional Trial Court of an offense not punishable by death,
reclusion perpetua or life imprisonment, the court, on
application, may admit the accused to bail.
The court, in its discretion, may allow the accused to continue
on provisional liberty under the same bail bond during the
period to appeal subject to the consent of the bondsman.

(3) The accused-appellant shall forthwith surrender his


passport to the Division Clerk of Court for safekeeping until the
court orders its return;

If the court imposed a penalty of imprisonment exceeding six


(6) years, but not more than twenty (20) years, the accused
shall be denied bail, or his bail previously granted shall be
cancelled, upon a showing by the prosecution, with notice to
the accused, of the following or other similar circumstances:

(4) Any violation of the aforesaid conditions shall cause the


forfeiture of accused-appellant's bail bond, the dismissal of
appeal and his immediate arrest and confinement in jail.

(a) That the accused is a recidivist, quasi-recidivist, or habitual


delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

SO ORDERED.

(b) That the accused is found to have previously escaped from


legal confinement, evaded sentence, or has violated the
conditions of his bail without valid justification;

A motion for reconsideration was filed, seeking the reduction of


the amount of bail fixed by respondent court, but was denied in
a resolution issued on November 25, 1999. Hence, this
petition.
Petitioner sets out the following assignments of error:

(c) That the accused committed the offense while on probation,


parole, or under conditional pardon;
(d) That the circumstances of the accused or his case indicate
the probability of flight if released on bail; or

(e) That there is undue risk that during the pendency of the
appeal, the accused may commit another crime.
The appellate court may review the resolution of the Regional
Trial Court, on motion and with notice to the adverse party.7
There is no question that in the present case the Court of
Appeals exercised its discretion in favor of allowing bail to
petitioner on appeal. Respondent court stated that it was doing
so for "humanitarian reasons", and despite a perceived high
risk of flight, as by petitioner's admission he went out of the
country several times during the pendency of the case, for
which reason the court deemed it necessary to peg the amount
of bail at P5,500,000.00.
The prohibition against requiring excessive bail is enshrined in
the Constitution.8 The obvious rationale, as declared in the
leading case of De la Camara vs. Enage,9 is that imposing bail
in an excessive amount could render meaningless the right to
bail. Thus, in Villaseor vs. Abano,10 this Court made the
pronouncement that it will not hesitate to exercise its
supervisory powers over lower courts should the latter, after
holding the accused entitled to bail, effectively deny the same
by imposing a prohibitory sum or exacting unreasonable
conditions.
xxx There is grim irony in an accused being told that he has a
right to bail but at the same time being required to post such an
exorbitant sum. What aggravates the situation is that the lower
court judge would apparently yield to the command of the
fundamental law. In reality, such a sanctimonious avowal of
respect for a mandate of the Constitution was on a purely
verbal level. There is reason to believe that any person in the
position of petitioner would under the circumstances be unable
to resist thoughts of escaping from confinement, reduced as he
must have been to a state of desperation. In the same breath
as he was told he could be bailed out, the excessive amount
required could only mean that provisional liberty would be
beyond his reach. It would have been more forthright if he were
informed categorically that such a right could not be availed of.
There would have been no disappointment of expectations
then. It does call to mind these words of Justice Jackson, "a
promise to the ear to be broken to the hope, a teasing illusion
like a munificent bequest in a pauper's will."
At the same time, Section 9, Rule 114 of the Revised Rules of
Criminal Procedure advises courts to consider the following
factors in the setting of the amount of bail:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on bail.
Thus, the court has wide latitude in fixing the amount of bail.
Where it fears that the accused may jump bail, it is certainly
not precluded from installing devices to ensure against the
same. Options may include increasing the bail bond to an
appropriate level, or requiring the person to report periodically
to the court and to make an accounting of his movements.12 In
the present case, where petitioner was found to have left the
country several times while the case was pending, the Court of
Appeals required the confiscation of his passport and the
issuance of a hold-departure order against him.

Under the circumstances of this case, we find that appropriate


conditions have been imposed in the bail bond to ensure
against the risk of flight, particularly, the combination of the
hold-departure order and the requirement that petitioner inform
the court of any change of residence and of his whereabouts.
Although an increase in the amount of bail while the case is on
appeal may be meritorious, we find that the setting of the
amount at P5,500,000.00 is unreasonable, excessive, and
constitutes an effective denial of petitioner's right to bail.
The purpose for bail is to guarantee the appearance of the
accused at the trial,13 or whenever so required by the Court14.
The amount should be high enough to assure the presence of
the accused when required but no higher than is reasonably
calculated to fulfill this purpose.15 To fix bail at an amount
equivalent to the civil liability of which petitioner is charged (in
this case, P5,500,000.00).is to permit the impression that the
amount paid as bail is an exaction of the civil liability that
accused is charged of; this we cannot allow because bail is not
intended as a punishment, nor as a satisfaction of civil liability
which should necessarily await the judgment of the appellate
court.
At the same time, we cannot yield to petitioner's submission
that bail in the instant case be set at P40,000.00 based on the
1996 Bail Bond Guide. (The current Bail Bond Guide, issued
on August 29, 2000, maintains recommended bail at
P40,000.00 for estafa where the amount of fraud is
P142,000.00 or over and the imposable penalty 20 years of
reclusion temporal). True, the Court has held that the Bail Bond
Guide, a circular of the Department of Justice for the guidance
of state prosecutors, although technically not binding upon the
courts, "merits attention, being in a sense an expression of
policy of the Executive Branch, through the Department of
Justice, in the enforcement of criminal laws."16 Thus, courts
are advised that they must not only be aware but should also
consider the Bail Bond Guide due to its significance in the
administration of criminal justice.17 This notwithstanding, the
Court is not precluded from imposing in petitioner's case an
amount higher than P40,000.00 (based on the Bail Bond
Guide) where it perceives that an appropriate increase is
dictated by the circumstances.
It militates emphasis that petitioner is seeking bail on appeal.
Section 5, Rule 114 of the Revised Rules of Criminal
Procedure is clear that although the grant of bail on appeal is
non-capital offenses is discretionary, when the penalty imposed
on the convicted accused exceeds six years and
circumstances exist that point to the probability of flight if
released on bail, then the accused must be denied bail, or his
bail previously granted should be cancelled.18 In the same
vein, the Court has held that the discretion to extend bail
during the course of the appeal should be exercised with grave
caution and for strong reasons, considering that the accused
had been in fact convicted by the trial court.19 In an earlier
case, the Court adopted Senator Vicente J. Francisco's
disquisition on why bail should be denied after judgment of
conviction as a matter of wise discretion; thus:
The importance attached to conviction is due to the underlying
principle that bail should be granted only where it is uncertain
whether the accused is guilty or innocent, and therefore, where
that uncertainty is removed by conviction it would, generally
speaking, be absurd to admit to bail. After a person has been
tried and convicted the presumption of innocence which may
be relied upon in prior applications is rebutted, and the burden
is upon the accused to show error in the conviction. From
another point of view it may be properly argued that the
probability of ultimate punishment is so enhanced by the
conviction that the accused is much more likely to attempt to
escape if liberated on bail than before conviction.
Petitioner is seeking bail on appeal. He was in fact declared
guilty beyond reasonable doubt by the RTC, and due to the
serious amount of fraud involved, sentenced to imprisonment
for twenty years --the maximum penalty for estafa by false
pretenses or fraudulent acts allowed by the Revised Penal
Code. Although it cannot be controverted that the Court of
Appeals, despite the foregoing considerations and the
possibility of flight still wielded its discretion to grant petitioner

bail, the setting of bail in the amount of P5,500,000.00 is


unjustified as having no legal nor factual basis. Guided by the
penalty imposed by the lower court and the weight of the
evidence against petitioner, we believe that the amount of
P200,000.00 is more reasonable.

b. DPWH Department Order No. 74, Series of 1993;

Petitioner also contests the condition imposed by the Court of


Appeals that he secure "a certification/guaranty from the Mayor
of the place of his residence that he is a resident of the area
and that he will remain to be a resident therein until final
judgment is rendered or in case he transfers residence, it must
be with prior notice to the court", claiming that the same
violates his liberty of abode and travel.

2. Previously, pursuant to its mandate under R.A. 2000, DPWH


issued on June 25, 1998 Department Order (DO) No. 215
declaring the Manila-Cavite (Coastal Road) Toll Expressway as
limited access facilities.

Notably, petitioner does not question the hold-departure order


which prevents him from leaving the Philippines unless
expressly permitted by the court which issued the order.21 In
fact, the petition submits that "the hold-departure order against
petitioner is already sufficient guarantee that he will not
escape. Thus, to require him to inform the court every time he
changed his residence is already unnecessary."
The right to change abode and travel within the Philippines,
being invoked by petitioner, are not absolute rights. Section 6,
Article III of the 1987 Constitution states:
The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or
public health, as may be provided by law.
The order of the Court of Appeals releasing petitioner on bail
constitutes such lawful order as contemplated by the above
provision.23 The condition imposed by the Court of Appeals is
simply consistent with the nature and function of a bail bond,
which is to ensure that petitioner will make himself available at
all times whenever the Court requires his presence. Besides, a
closer look at the questioned condition will show that petitioner
is not prevented from changing abode; he is merely required to
inform the court in case he does so.
WHEREFORE, the petition is PARTIALLY GRANTED.
Petitioner's bail pending appeal is reduced from P5,500,000.00
to P200,000.00. In all other respects, the resolutions of the
Court of Appeals, dated October 6, 1999 and November 25,
1999, respectively, are AFFIRMED. No pronouncement as to
costs.
SO ORDERED.

c. Art. II, Sec. 3(a) of the Revised Rules on Limited Access


Facilities promulgated in 199[8] by the DPWH thru the Toll
Regulatory Board (TRB).

3. Accordingly, petitioners filed an Amended Petition on


February 8, 2001 wherein petitioners sought the declaration of
nullity of the aforesaid administrative issuances. Moreover,
petitioners prayed for the issuance of a temporary restraining
order and/or preliminary injunction to prevent the enforcement
of the total ban on motorcycles along the entire breadth of
North and South Luzon Expressways and the Manila-Cavite
(Coastal Road) Toll Expressway under DO 215.
4. On June 28, 2001, the trial court, thru then Presiding Judge
Teofilo Guadiz, after due hearing, issued an order granting
petitioners application for preliminary injunction. On July 16,
2001, a writ of preliminary injunction was issued by the trial
court, conditioned upon petitioners filing of cash bond in the
amount of P100,000.00, which petitioners subsequently
complied with.
5. On July 18, 2001, the DPWH acting thru the TRB, issued
Department Order No. 123 allowing motorcycles with engine
displacement of 400 cubic centimeters inside limited access
facilities (toll ways).
6. Upon the assumption of Honorable Presiding Judge Ma.
Cristina Cornejo, both the petitioners and respondents were
required to file their respective Memoranda. Petitioners
likewise filed [their] Supplemental Memorandum. Thereafter,
the case was deemed submitted for decision.
7. Consequently, on March 10, 2003, the trial court issued the
assailed decision dismissing the petition but declaring invalid
DO 123. Petitioners moved for a reconsideration of the
dismissal of their petition; but it was denied by the trial court in
its Order dated June 16, 2003.3
Hence, this petition.
The RTCs Ruling
The dispositive portion of the RTCs Decision dated 10 March
2003 reads:

Mirasol v DPWH
This petition for review on certiorari1 seeks to reverse the
Decision dated 10 March 2003 of the Regional Trial Court,
Branch 147, Makati City (RTC) in Civil Case No. 01-034, as
well as the RTCs Order dated 16 June 2003 which denied
petitioners Motion for Reconsideration. Petitioners assert that
Department of Public Works and Highways (DPWH)
Department Order No. 74 (DO 74), Department Order No. 215
(DO 215), and the Revised Rules and Regulations on Limited
Access Facilities of the Toll Regulatory Board (TRB) violate
Republic Act No. 2000 (RA 2000) or the Limited Access
Highway Act. Petitioners also seek to declare Department
Order No. 123 (DO 123) and Administrative Order No. 1 (AO
1)2 unconstitutional.

WHEREFORE, [t]he Petition is denied/dismissed insofar as


petitioners seek to declare null and void ab initio DPWH
Department Order No. 74, Series of 1993, Administrative Order
No. 1, and Art. II, Sec. 3(a) of the Revised Rules on Limited
Access Facilities promulgated by the DPWH thru the TRB, the
presumed validity thereof not having been overcome; but the
petition is granted insofar as DPWH Department Order No. 123
is concerned, declaring the same to be invalid for being
violative of the equal protection clause of the Constitution.
SO ORDERED.
The Issues

Antecedent Facts

Petitioners seek a reversal and raise the following issues for


resolution:

The facts are not in dispute. As summarized by the Solicitor


General, the facts are as follows:

1. WHETHER THE RTCS DECISION IS ALREADY BARRED


BY RES JUDICATA;

1. On January 10, 2001, petitioners filed before the trial court a


Petition for Declaratory Judgment with Application for
Temporary Restraining Order and Injunction docketed as Civil
Case No. 01-034. The petition sought the declaration of nullity
of the following administrative issuances for being inconsistent
with the provisions of Republic Act 2000, entitled "Limited
Access Highway Act" enacted in 1957:

2. WHETHER DO 74, DO 215 AND THE TRB REGULATIONS


CONTRAVENE RA 2000; AND

a. DPWH Administrative Order No. 1, Series of 1968;

The petition is partly meritorious.

3. WHETHER AO 1 AND DO 123 ARE


UNCONSTITUTIONAL.5
The Ruling of the Court

Whether the RTCs Decision Dismissing Petitioners Case is


Barred by Res Judicata
Petitioners rely on the RTCs Order dated 28 June 2001, which
granted their prayer for a writ of preliminary injunction. Since
respondents did not appeal from that Order, petitioners argue
that the Order became "a final judgment" on the issues.
Petitioners conclude that the RTC erred when it subsequently
dismissed their petition in its Decision dated 10 March 2003.
Petitioners are mistaken. As the RTC correctly stated, the
Order dated 28 June 2001 was not an adjudication on the
merits of the case that would trigger res judicata. A preliminary
injunction does not serve as a final determination of the issues.
It is a provisional remedy, which merely serves to preserve the
status quo until the court could hear the merits of the case.6
Thus, Section 9 of Rule 58 of the 1997 Rules of Civil
Procedure requires the issuance of a final injunction to confirm
the preliminary injunction should the court during trial
determine that the acts complained of deserve to be
permanently enjoined. A preliminary injunction is a mere
adjunct, an ancillary remedy which exists only as an incident of
the main proceeding.7
Validity of DO 74, DO 215 and the TRB Regulations
Petitioners claim that DO 74,8 DO 215,9 and the TRBs Rules
and Regulations issued under them violate the provisions of
RA 2000. They contend that the two issuances unduly
expanded the power of the DPWH in Section 4 of RA 2000 to
regulate toll ways. Petitioners assert that the DPWHs
regulatory authority is limited to acts like redesigning curbings
or central dividing sections. They claim that the DPWH is only
allowed to re-design the physical structure of toll ways, and not
to determine "who or what can be qualified as toll way users."
Section 4 of RA 2000 reads:
SEC. 4. Design of limited access facility. The Department of
Public Works and Communications is authorized to so design
any limited access facility and to so regulate, restrict, or
prohibit access as to best serve the traffic for which such
facility is intended; and its determination of such design shall
be final. In this connection, it is authorized to divide and
separate any limited access facility into separate roadways by
the construction of raised curbings, central dividing sections, or
other physical separations, or by designating such separate
roadways by signs, markers, stripes, and the proper lane for
such traffic by appropriate signs, markers, stripes and other
devices. No person, shall have any right of ingress or egress
to, from or across limited access facilities to or from abutting
lands, except at such designated points at which access may
be permitted, upon such terms and conditions as may be
specified from time to time. (Emphasis supplied)
On 19 February 1968, Secretary Antonio V. Raquiza of the
Department of Public Works and Communications issued AO
1, which, among others, prohibited motorcycles on limited
access highways. The pertinent provisions of AO 1 read:
SUBJECT: Revised Rules and Regulations Governing Limited
Access Highways
By virtue of the authority granted the Secretary [of] Public
Works and Communications under Section 3 of R.A. 2000,
otherwise known as the Limited Access Highway Act, the
following rules and regulations governing limited access
highways are hereby promulgated for the guidance of all
concerned:
Section 3 On limited access highways, it is unlawful for any
person or group of persons to:
(h) Drive any bicycle, tricycle, pedicab, motorcycle or any
vehicle (not motorized);
On 5 April 1993, Acting Secretary Edmundo V. Mir of the
Department of Public Works and Highways issued DO 74:

SUBJECT: Declaration of the North Luzon Expressway from


Balintawak to Tabang and the South Luzon Expressway from
Nichols to Alabang as Limited Access Facilities
Pursuant to Section 2 of Republic Act No. 2000, a limited
access facility is defined as "a highway or street especially
designed for through traffic, and over, from, or to which owners
or occupants of abutting land or other persons have no right or
easement or only a limited right or easement of access, light,
air or view by reason of the fact that their proper[t]y abuts upon
such limited access facility or for any other reason. Such
highways or streets may be parkways, from which trucks,
buses, and other commerical [sic] vehicles shall be excluded;
or they may be free ways open to use by all customary forms
of street and highway traffic."
Section 3 of the same Act authorizes the Department of Public
Works and Communications (now Department of Public Works
and Highways) "to plan, designate, establish, regulate, vacate,
alter, improve, maintain, and provide limited access facilities for
public use wherever it is of the opinion that traffic conditins,
present or future, will justify such special facilities."
Therefore, by virtue of the authority granted above, the
Department of Public Works and Highways hereby designates
and declares the Balintawak to Tabang Sections of the North
Luzon Expressway, and the Nichols to Alabang Sections of the
South Luzon Expressways, to be LIMITED ACCESS
HIGHWAYS/FACILITIES subject to such rules and regulations
that may be imposed by the DPWH thru the Toll Regulatory
Board (TRB).
In view thereof, the National Capital Region (NCR) of this
Department is hereby ordered, after consultation with the TRB
and in coordination with the Philippine National Police (PNP),
to close all illegal openings along the said Limited Access
Highways/Facilities. In this connection, the NCR is instructed to
organize its own enforcement and security group for the
purpose of assuring the continued closure of the right-of-way
fences and the implementation of the rules and regulations that
may be imposed by the DPWH thru the TRB.
This Order shall take effect immediately.
On 25 June 1998, then DPWH Secretary Gregorio R. Vigilar
issued DO 215:
SUBJECT: Declaration of the R-1 Expressway, from Seaside
drive to Zapote, C-5 Link Expressway, from Zapote to
Noveleta, of the Manila Cavite Toll Expressway as Limited
Access Facility.
Pursuant to Section 2 of Republic Act No. 2000, a limited
access facility is defined as "a highway or street especially
designed for through traffic, and over, from, or to which owners
or occupants of abutting land or other persons have no right or
easement or only a limited right or easement of access, light,
air or view by reason of the fact that their property abuts upon
such limited access facility or for any other reason. Such
highways or streets may be parkways, from which trucks,
buses, and other commercial vehicles shall be excluded; or
they may be free ways open to use by all customary forms of
street and highway traffic."
Section 3 of the same Act authorizes the Department of Public
Works and Communications (now Department of Public Works
and Highways) "to plan, designate, establish, regulate, vacate,
alter, improve, maintain, and provide limited access facilities for
public use wherever it is of the opinion that traffic conditions,
present or future, will justify such special facilities."
Therefore, by virtue of the authority granted above, the
Department of Public Works and Highways hereby designates
and declares the R-1 Expressway, C-5 Link Expressway and
the R-1 Extension Expressway Sections of the Manila Cavite
Toll Expressway to be LIMITED ACCESS
HIGHWAYS/FACILITIES subject to such rules and regulations
that may be imposed by the DPWH thru the Toll Regulatory
Board (TRB).

In view thereof, the National Capital Region (NCR) of this


Department is hereby ordered, after consultation with the TRB
and in coordination with the Philippine National Police (PNP),
to close all illegal openings along the said Limited Access
Highways/Facilities. In this connection, the NCR is instructed to
organize its own enforcement and security group for the
purpose of assuring the continued closure of the right-of-way
fences and the implementation of the rules and regulations that
may be imposed by the DPWH thru the TRB.
This Order shall take effect immediately.14
The RTC held that Section 4 of RA 2000 expressly authorized
the DPWH to design limited access facilities and to regulate,
restrict, or prohibit access as to serve the traffic for which such
facilities are intended. According to the RTC, such authority to
regulate, restrict, or prohibit logically includes the determination
of who and what can and cannot be permitted entry or access
into the limited access facilities. Thus, the RTC concluded that
AO 1, DO 74, and the Revised Rules and Regulations on
Limited Access Facilities, which ban motorcycles entry or
access to the limited access facilities, are not inconsistent with
RA 2000.
RA 2000, otherwise known as the Limited Access Highway Act,
was approved on 22 June 1957. Section 4 of RA 2000 provides
that "[t]he Department of Public Works and Communications is
authorized to so design any limited access facility and to so
regulate, restrict, or prohibit access as to best serve the traffic
for which such facility is intended." The RTC construed this
authorization to regulate, restrict, or prohibit access to limited
access facilities to apply to the Department of Public Works
and Highways (DPWH).
The RTCs ruling is based on a wrong premise. The RTC
assumed that the DPWH derived its authority from its
predecessor, the Department of Public Works and
Communications, which is expressly authorized to regulate,
restrict, or prohibit access to limited access facilities under
Section 4 of RA 2000. However, such assumption fails to
consider the evolution of the Department of Public Works and
Communications.
Under Act No. 2711, otherwise known as the Revised
Administrative Code, approved on 10 March 1917, there were
only seven executive departments, namely: the Department of
the Interior, the Department of Finance, the Department of
Justice, the Department of Agriculture and Commerce, the
Department of Public Works and Communications, the
Department of Public Instruction, and the Department of
Labor.15 On 20 June 1964, Republic Act No. 413616 created
the Land Transportation Commission under the Department of
Public Works and Communications. Later, the Department of
Public Works and Communications was restructured into the
Department of Public Works, Transportation and
Communications.
On 16 May 1974, Presidential Decree No. 458 (PD 458)
separated the Bureau of Public Highways from the Department
of Public Works, Transportation and Communications and
created it as a department to be known as Department of
Public Highways. Under Section 3 of PD 458, the Department
of Public Highways is "responsible for developing and
implementing programs on the construction and maintenance
of roads, bridges and airport runways."
With the amendment of the 1973 Philippine Constitution in
1976, resulting in the shift in the form of government, national
agencies were renamed from Departments to Ministries. Thus,
the Department of Public Works, Transportation and
Communications became the Ministry of Public Works,
Transportation and Communications.
On 23 July 1979, then President Ferdinand E. Marcos issued
Executive Order No. 546 (EO 546), creating a Ministry of
Public Works and a Ministry of Transportation and
Communications.17 Under Section 1 of EO 546, the Ministry of
Public Works assumed the public works functions of the
Ministry of Public Works, Transportation and Communications.
The functions of the Ministry of Public Works were the

"construction, maintenance and repair of port works, harbor


facilities, lighthouses, navigational aids, shore protection
works, airport buildings and associated facilities, public
buildings and school buildings, monuments and other related
structures, as well as undertaking harbor and river dredging
works, reclamation of foreshore and swampland areas, water
supply, and flood control and drainage works."18
On the other hand, the Ministry of Transportation and
Communications became the "primary policy, planning,
programming, coordinating, implementing, regulating and
administrative entity of the executive branch of the government
in the promotion, development, and regulation of a dependable
and coordinated network of transportation and communication
systems."19 The functions of the Ministry of Transportation and
Communications were:
a. Coordinate and supervise all activities of the Ministry relative
to transportation and communications;
b. Formulate and recommend national policies and guidelines
for the preparation and implementation of an integrated and
comprehensive transportation and communications system at
the national, regional and local levels;
c. Establish and administer comprehensive and integrated
programs for transportation and communication, and for this
purpose, may call on any agency, corporation, or organization,
whether government or private, whose development programs
include transportation and communications as an integral part
to participate and assist in the preparation and implementation
of such programs;
d. Regulate, whenever necessary, activities relative to
transportation and communications and prescribe and collect
fees in the exercise of such power;
e. Assess, review and provide direction to transportation and
communications research and development programs of the
government in coordination with other institutions concerned;
and
f. Perform such other functions as may be necessary to carry
into effect the provisions of this Executive Order.20 (Emphasis
supplied)
On 27 July 1981, then President Marcos issued Executive
Order No. 710 (EO 710), which merged the Ministry of Public
Works and the Ministry of Public Highways for "greater
simplicity and economy in operations."21 The restructured
agency became known as the Ministry of Public Works and
Highways. Under Section 1 of EO 710 the functions of the
Ministry of Public Works and the Ministry of Public Highways22
were transferred to the Ministry of Public Works and Highways.
Upon the ratification of the 1987 Constitution in February 1987,
the former Ministry of Public Works and Highways became the
Department of Public Works and Highways (DPWH) and the
former Ministry of Transportation and Communications became
the Department of Transportation and Communications
(DOTC).
DPWH issued DO 74 and DO 215 declaring certain
expressways as limited access facilities on 5 April 1993 and 25
June 1998, respectively. Later, the TRB, under the DPWH,
issued the Revised Rules and Regulations on Limited Access
Facilities. However, on 23 July 1979, long before these
department orders and regulations were issued, the Ministry of
Public Works, Transportation and Communications was divided
into two agencies the Ministry of Public Works and the
Ministry of Transportation and Communications by virtue of
EO 546. The question is, which of these two agencies is now
authorized to regulate, restrict, or prohibit access to limited
access facilities?
Under Section 1 of EO 546, the Ministry of Public Works (now
DPWH) assumed the public works functions of the Ministry of
Public Works, Transportation and Communications. On the
other hand, among the functions of the Ministry of
Transportation and Communications (now Department of
Transportation and Communications [DOTC]) were to (1)

formulate and recommend national policies and guidelines for


the preparation and implementation of an integrated and
comprehensive transportation and communications systems at
the national, regional, and local levels; and (2) regulate,
whenever necessary, activities relative to transportation and
communications and prescribe and collect fees in the exercise
of such power. Clearly, under EO 546, it is the DOTC, not the
DPWH, which has authority to regulate, restrict, or prohibit
access to limited access facilities.
Even under Executive Order No. 125 (EO 125)24 and
Executive Order No. 125-A (EO 125-A),25 which further
reorganized the DOTC, the authority to administer and enforce
all laws, rules and regulations relative to transportation is
clearly with the DOTC.26
Thus, DO 74 and DO 215 are void because the DPWH has no
authority to declare certain expressways as limited access
facilities. Under the law, it is the DOTC which is authorized to
administer and enforce all laws, rules and regulations in the
field of transportation and to regulate related activities.
Since the DPWH has no authority to regulate activities relative
to transportation, the TRB27 cannot derive its power from the
DPWH to issue regulations governing limited access facilities.
The DPWH cannot delegate a power or function which it does
not possess in the first place. Since DO 74 and DO 215 are
void, it follows that the rules implementing them are likewise
void.
Whether AO 1 and DO 123 are Unconstitutional
DPWH Secretary Simeon A. Datumanong issued DO 123 on
18 July 2001. DO 123 reads in part:
SUBJECT: Revised Rules and Regulations Governing Limited
Access Highways
By virtue of the authority granted the Secretary of Public Works
and Highways under Section 3 of R.A. 2000, otherwise known
as the Limited Access Highway Act, the following revised rules
and regulations governing limited access highways are hereby
promulgated for the guidance of all concerned:
1. Administrative Order No. 1 dated February 19, 1968, issued
by the Secretary of the then Department of Public Works and
Communications, is hereby amended by deleting the word
"motorcycles" mentioned in Section 3(h) thereof. Therefore,
motorcycles are hereby allowed to operate inside the toll roads
and limited access highways, subject to the following:
a. Motorcycles shall have an engine displacement of at least
400 cubic centimeters (cc) provided that:
The RTCs Decision dated 10 March 2003 declared DO 123
unconstitutional on the ground that it violates the equal
protection clause by allowing only motorcycles with at least
400 cubic centimeters engine displacement to use the toll
ways. The RTC reasoned that the creation of a distinction
within the class of motorcycles was not based on real
differences.
We need not pass upon the constitutionality of the
classification of motorcycles under DO 123. As previously
discussed, the DPWH has no authority to regulate limited
access highways since EO 546 has devolved this function to
the DOTC. Thus, DO 123 is void for want of authority of the
DPWH to promulgate it.
On the other hand, the assailed portion of AO 1 states:
Section 3. On limited access highways, it is unlawful for any
person or group of persons to:
(h) Drive any bicycle, tricycle, pedicab, motorcycle or any
vehicle (not motorized);
Petitioners assail the DPWHs failure to provide "scientific" and
"objective" data on the danger of having motorcycles plying our
highways. They attack this exercise of police power as
baseless and unwarranted. Petitioners belabor the fact that

there are studies that provide proof that motorcycles are safe
modes of transport. They also claim that AO 1 introduces an
unreasonable classification by singling-out motorcycles from
other motorized modes of transport. Finally, petitioners argue
that AO 1 violates their right to travel.
Petitioners arguments do not convince us.
We emphasize that the Secretary of the Department of Public
Works and Communications issued AO 1 on 19 February
1968.
Section 3 of RA 200029 authorized the issuance of the
guidelines. In contrast, DPWH issued DO 74, DO 215 and DO
123 after EO 546 devolved to the DOTC the authority to
regulate limited access highways.
We now discuss the constitutionality of AO 1. Administrative
issuances have the force and effect of law.30 They benefit from
the same presumption of validity and constitutionality enjoyed
by statutes.31 These two precepts place a heavy burden upon
any party assailing governmental regulations. The burden of
proving unconstitutionality rests on such party.32 The burden
becomes heavier when the police power is at issue.
The use of public highways by motor vehicles is subject to
regulation as an exercise of the police power of the state.33
The police power is far-reaching in scope and is the "most
essential, insistent and illimitable" of all government powers.34
The tendency is to extend rather than to restrict the use of
police power. The sole standard in measuring its exercise is
reasonableness.35 What is "reasonable" is not subject to exact
definition or scientific formulation. No all-embracing test of
reasonableness exists,36 for its determination rests upon
human judgment applied to the facts and circumstances of
each particular case.37
We find that AO 1 does not impose unreasonable restrictions.
It merely outlines several precautionary measures, to which toll
way users must adhere. These rules were designed to ensure
public safety and the uninhibited flow of traffic within limited
access facilities. They cover several subjects, from what lanes
should be used by a certain vehicle, to maximum vehicle
height. The prohibition of certain types of vehicles is but one of
these. None of these rules violates reason. The purpose of
these rules and the logic behind them are quite evident. A toll
way is not an ordinary road. The special purpose for which a
toll way is constructed necessitates the imposition of guidelines
in the manner of its use and operation. Inevitably, such rules
will restrict certain rights. But the mere fact that certain rights
are restricted does not invalidate the rules.
Consider Section 3(g) of AO 1, which prohibits the conduct of
rallies inside toll ways.38 The regulation affects the right to
peaceably assemble. The exercise of police power involves
restriction, restriction being implicit in the power itself. Thus,
the test of constitutionality of a police power measure is limited
to an inquiry on whether the restriction imposed on
constitutional rights is reasonable, and not whether it imposes
a restriction on those rights.
None of the rules outlined in AO 1 strikes us as arbitrary and
capricious. The DPWH, through the Solicitor General,
maintains that the toll ways were not designed to
accommodate motorcycles and that their presence in the toll
ways will compromise safety and traffic considerations. The
DPWH points out that the same study the petitioners rely on
cites that the inability of other drivers to detect motorcycles is
the predominant cause of accidents.39 Arguably, prohibiting
the use of motorcycles in toll ways may not be the "best"
measure to ensure the safety and comfort of those who ply the
toll ways.
However, the means by which the government chooses to act
is not judged in terms of what is "best," rather, on simply
whether the act is reasonable. The validity of a police power
measure does not depend upon the absolute assurance that
the purpose desired can in fact be probably fully accomplished,
or upon the certainty that it will best serve the purpose
intended.40 Reason, not scientific exactitude, is the measure
of the validity of the governmental regulation. Arguments based

on what is "best" are arguments reserved for the Legislatures


discussion. Judicial intervention in such matters will only be
warranted if the assailed regulation is patently whimsical. We
do not find the situation in this case to be so.
Neither do we find AO 1 oppressive. Petitioners are not being
deprived of their right to use the limited access facility. They
are merely being required, just like the rest of the public, to
adhere to the rules on how to use the facility. AO 1 does not
infringe upon petitioners right to travel but merely bars
motorcycles, bicycles, tricycles, pedicabs, and any non
motorized vehicles as the mode of traveling along limited
access highways.41 Several cheap, accessible and practical
alternative modes of transport are open to petitioners. There is
nothing oppressive in being required to take a bus or drive a
car instead of ones scooter, bicycle, calesa, or motorcycle
upon using a toll way.
Petitioners reliance on the studies they gathered is misplaced.
Police power does not rely upon the existence of definitive
studies to support its use. Indeed, no requirement exists that
the exercise of police power must first be conclusively justified
by research. The yardstick has always been simply whether
the governments act is reasonable and not oppressive.42 The
use of "reason" in this sense is simply meant to guard against
arbitrary and capricious government action. Scientific certainty
and conclusiveness, though desirable, may not be demanded
in every situation. Otherwise, no government will be able to act
in situations demanding the exercise of its residual powers
because it will be tied up conducting studies.
A police power measure may be assailed upon proof that it
unduly violates constitutional limitations like due process and
equal protection of the law.43 Petitioners attempt to seek
redress from the motorcycle ban under the aegis of equal
protection must fail. Petitioners contention that AO 1
unreasonably singles out motorcycles is specious. To begin
with, classification by itself is not prohibited.44
A classification can only be assailed if it is deemed invidious,
that is, it is not based on real or substantial differences. As
explained by Chief Justice Fernando in Bautista v. Juinio:
x x x To assure that the general welfare be promoted, which is
the end of law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may under such
circumstances invoked the equal protection clause only if they
can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted
by the spirit of hostility, or at the very least, discrimination that
finds no support in reason. It suffices then that the laws
operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the
privileges conferred and the liabilities imposed. Favoritism and
undue preference cannot be allowed. For the principle is that
equal protection and security shall be given to every person
under circumstances, which if not identical is analogous. If law
be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding the rest.
We find that it is neither warranted nor reasonable for
petitioners to say that the only justifiable classification among
modes of transport is the motorized against the non-motorized.
Not all motorized vehicles are created equal. A 16-wheeler
truck is substantially different from other light vehicles. The first
may be denied access to some roads where the latter are free
to drive. Old vehicles may be reasonably differentiated from
newer models.46 We find that real and substantial differences
exist between a motorcycle and other forms of transport
sufficient to justify its classification among those prohibited
from plying the toll ways. Amongst all types of motorized
transport, it is obvious, even to a child, that a motorcycle is
quite different from a car, a bus or a truck. The most obvious
and troubling difference would be that a two-wheeled vehicle is
less stable and more easily overturned than a four-wheeled
vehicle.

A classification based on practical convenience and common


knowledge is not unconstitutional simply because it may lack
purely theoretical or scientific uniformity. Moreover, we take
note that the Philippines is home to a host of unique motorized
modes of transport ranging from modified hand-carts (kuliglig)
to bicycle "sidecars" outfitted with a motor. To follow petitioners
argument to its logical conclusion would open up toll ways to
all these contraptions. Both safety and traffic considerations
militate against any ruling that would bring about such a
nightmare.
Petitioners complain that the prohibition on the use of
motorcycles in toll ways unduly deprive them of their right to
travel.
We are not persuaded.
A toll way is not an ordinary road. As a facility designed to
promote the fastest access to certain destinations, its use,
operation, and maintenance require close regulation. Public
interest and safety require the imposition of certain restrictions
on toll ways that do not apply to ordinary roads. As a special
kind of road, it is but reasonable that not all forms of transport
could use it.
The right to travel does not mean the right to choose any
vehicle in traversing a toll way. The right to travel refers to the
right to move from one place to another. Petitioners can
traverse the toll way any time they choose using private or
public four-wheeled vehicles. Petitioners are not denied the
right to move from Point A to Point B along the toll way.
Petitioners are free to access the toll way, much as the rest of
the public can. The mode by which petitioners wish to travel
pertains to the manner of using the toll way, a subject that can
be validly limited by regulation.
Petitioners themselves admit that alternative routes are
available to them. Their complaint is that these routes are not
the safest and most convenient. Even if their claim is true, it
hardly qualifies as an undue curtailment of their freedom of
movement and travel. The right to travel does not entitle a
person to the best form of transport or to the most convenient
route to his destination. The obstructions found in normal
streets, which petitioners complain of (i.e., potholes, manholes,
construction barriers, etc.), are not suffered by them alone.
Finally, petitioners assert that their possession of a drivers
license from the Land Transportation Office (LTO) and the fact
that their vehicles are registered with that office entitle them to
use all kinds of roads in the country. Again, petitioners are
mistaken. There exists no absolute right to drive. On the
contrary, this privilege, is heavily regulated. Only a qualified
group is allowed to drive motor vehicles: those who pass the
tests administered by the LTO. A drivers license issued by the
LTO merely allows one to drive a particular mode of transport.
It is not a license to drive or operate any form of transportation
on any type of road. Vehicle registration in the LTO on the
other hand merely signifies the roadworthiness of a vehicle.
This does not preclude the government from prescribing which
roads are accessible to certain vehicles.
WHEREFORE, we PARTLY GRANT the petition. We MODIFY
the Decision dated 10 March 2003 of the Regional Trial Court,
Branch 147, Makati City and its Order dated 16 June 2003 in
Civil Case No. 01-034. We declare VOID Department Order
Nos. 74, 215, and 123 of the Department of Public Works and
Highways, and the Revised Rules and Regulations on Limited
Access Facilities of the Toll Regulatory Board. We declare
VALID Administrative Order No. 1 of the Department of Public
Works and Communications.
SO ORDERED.

Reyes v CA

For resolution is the petition for review under Rule 45 of the


Rules of Court, assailing the February 4, 2008 Decision1 of the
Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed
the petition for the issuance of the writ of amparo under A.M.
No. 07-9-12-SC, as amended. It also assails the CAs
Resolution dated March 25, 2008, denying petitioners motion
for reconsideration of the aforesaid February 4, 2008 Decision.
The undisputed facts as found by the CA are as follows:
Petitioner was among those arrested in the Manila Peninsula
Hotel siege on November 30, 2007. In the morning of
November 30, 2007, petitioner together with fifty (50) others,
were brought to Camp Crame to await inquest proceedings. In
the evening of the same day, the Department of Justice (DOJ)
Panel of Prosecutors, composed of Emmanuel Y. Velasco,
Phillip L. Dela Cruz and Aristotle M. Reyes, conducted inquest
proceedings to ascertain whether or not there was probable
cause to hold petitioner and the others for trial on charges of
Rebellion and/or Inciting to Rebellion.
On December 1, 2007, upon the request of the Department of
Interior and Local Government (DILG), respondent DOJ
Secretary Raul Gonzales issued Hold Departure Order (HDO)
No. 45 ordering respondent Commissioner of Immigration to
include in the Hold Departure List of the Bureau of Immigration
and Deportation (BID) the name of petitioner and 49 others
relative to the aforementioned case in the interest of national
security and public safety.
On December 2, 2007, after finding probable cause against
petitioner and 36 others for the crime of Rebellion under Article
134 of the Revised Penal Code, the DOJ Panel of Prosecutors
filed an Information docketed as I.S. No. 2007-1045 before the
Regional Trial Court, Branch 150 of Makati City.
On December 7, 2007, petitioner filed a Motion for Judicial
Determination of Probable Cause and Release of the Accused
Fr. Reyes Upon Recognizance asserting that the DOJ panel
failed to produce any evidence indicating his specific
participation in the crime charged; and that under the
Constitution, the determination of probable cause must be
made personally by a judge.
On December 13, 2007, the RTC issued an Order dismissing
the charge for Rebellion against petitioner and 17 others for
lack of probable cause. The trial court ratiocinated that the
evidence submitted by the DOJ Panel of Investigating
Prosecutors failed to show that petitioner and the other
accused-civilians conspired and confederated with the
accused-soldiers in taking arms against the government; that
petitioner and other accused-civilians were arrested because
they ignored the call of the police despite the deadline given to
them to come out from the 2nd Floor of the Hotel and submit
themselves to the police authorities; that mere presence at the
scene of the crime and expressing ones sentiments on
electoral and political reforms did not make them conspirators
absent concrete evidence that the accused-civilians knew
beforehand the intent of the accused-soldiers to commit
rebellion; and that the cooperation which the law penalizes
must be one that is knowingly and intentionally rendered.
On December 18, 2007, petitioners counsel Atty. Francisco L.
Chavez wrote the DOJ Secretary requesting the lifting of HDO
No. 45 in view of the dismissal of Criminal Case No. 07-3126.
On even date, Secretary Gonzales replied to petitioners letter
stating that the DOJ could not act on petitioners request until
Atty. Chavezs right to represent petitioner is settled in view of
the fact that a certain Atty. J. V. Bautista representing himself
as counsel of petitioner had also written a letter to the DOJ.
On January 3, 2008, petitioner filed the instant petition claiming
that despite the dismissal of the rebellion case against
petitioner, HDO No. 45 still subsists; that on December 19,
2007, petitioner was held by BID officials at the NAIA as his
name is included in the Hold Departure List; that had it not
been for the timely intervention of petitioners counsel,
petitioner would not have been able to take his scheduled flight
to Hong Kong; that on December 26, 2007, petitioner was able
to fly back to the Philippines from Hong Kong but every time

petitioner would present himself at the NAIA for his flights


abroad, he stands to be detained and interrogated by BID
officers because of the continued inclusion of his name in the
Hold Departure List; and that the Secretary of Justice has not
acted on his request for the lifting of HDO No. 45. Petitioner
further maintained that immediate recourse to the Supreme
Court for the availment of the writ is exigent as the continued
restraint on petitioners right to travel is illegal.
On January 24, 2008, respondents represented by the Office
of the Solicitor General (OSG) filed the Return of the Writ
raising the following affirmative defenses: 1) that the Secretary
of Justice is authorized to issue Hold Departure Orders under
the DOJ Circulars No. 17, Series of 19982 and No. 18 Series
of 20073 pursuant to his mandate under the Administrative
Code of 1987 as ahead of the principal law agency of the
government; 2) that HDO No. 45 dated December 1, 2007 was
issued by the Sec. Gonzales in the course of the preliminary
investigation of the case against herein petitioner upon the
request of the DILG; 3) that the lifting of HDO No. 45 is
premature in view of public respondents pending Motion for
Reconsideration dated January 3, 2008 filed by the
respondents of the Order dated December 13, 2007 of the
RTC dismissing Criminal Case No. 07-3126 for Rebellion for
lack of probable cause; 4) that petitioner failed to exhaust
administrative remedies by filing a motion to lift HDO No. 45
before the DOJ; and 5) that the constitutionality of Circulars
No. 17 and 18 can not be attacked collaterally in an amparo
proceeding.
During the hearing on January 25, 2008 at 10:00 a.m. at the
Paras Hall of the Court of Appeals, counsels for both parties
appeared. Petitioners counsel Atty. Francisco Chavez
manifested that petitioner is currently in Hong Kong; that every
time petitioner would leave and return to the country, the
immigration officers at the NAIA detain and interrogate him for
several minutes because of the existing HDO; that the power
of the DOJ Secretary to issue HDO has no legal basis; and
that petitioner did not file a motion to lift the HDO before the
RTC nor the DOJ because to do so would be tantamount to
recognizing the power of the DOJ Secretary to issue HDO.
For respondents part, the Office of the Solicitor-General (OSG)
maintained that the Secretary of the DOJs power to issue
HDO springs from its mandate under the Administrative Code
to investigate and prosecute offenders as the principal law
agency of the government; that in its ten-year existence, the
constitutionality of DOJ Circular No. 17 has not been
challenged except now; and that on January 3, 2008, the DOJ
Panel of Investigating Prosecutors had filed a Motion for
Reconsideration of the Order of Dismissal of the trial court.
On February 1, 2008, petitioner filed a Manifestation attaching
thereto a copy of the Order dated January 31, 2008 of the trial
court denying respondent DOJs Motion for Reconsideration for
utter lack of merit. The trial court also observed that the said
Motion should be dismissed outright for being filed out of time.
The petition for a writ of amparo is anchored on the ground that
respondents violated petitioners constitutional right to travel.
Petitioner argues that the DOJ Secretary has no power to
issue a Hold Departure Order (HDO) and the subject HDO No.
45 has no legal basis since Criminal Case No. 07-3126 has
already been dismissed.
On February 4, 2008, the CA rendered the assailed Decision
dismissing the petition and denying the privilege of the writ of
amparo.
Petitioners Motion for Reconsideration5 thereon was also
denied in the assailed Resolution6 dated March 25, 2008.
Hence, the present petition which is based on the following
grounds:
I. THE DOJ SECRETARYS ARROGATION OF POWER AND
USURPATION OF AUTHORITY TO ISSUE A HOLD
DEPARTURE ORDER CANNOT BE JUSTIFIED THROUGH A
RATIONALE THAT IT HAS SUPPOSEDLY BEEN
"REGULARLY EXERCISED IN THE PAST" OR HAS "NEVER
BEEN QUESTIONED (IN THE PAST).

II. THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO


INDEPENDENT OF THAT OF THE REGIONAL TRIAL
COURTS, HENCE, PETITIONER CANNOT MERELY RELY
ON THE RESIDUAL POWER OF THE RTC MAKATI IN
CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED
POWER.

whereabouts of the person concerned or a refusal to


acknowledge the deprivation of liberty which places such
persons outside the protection of law."12

III. THE UTMOST EXIGENCY OF THE PETITION IS


EXEMPLIFIED BY THE CONTINUING ACTUAL RESTRAINT
ON PETITIONERS RIGHT TO TRAVEL THROUGH THE
MAINTENANCE OF HIS NAME IN THE HDO LIST AND DOES
NOT SIMPLY HINGE ON THE QUESTION OF WHETHER OR
NOT PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A
RESTRAINT.

To start off with the basics, the writ of amparo was originally
conceived as a response to the extraordinary rise in the
number of killings and enforced disappearances, and to the
perceived lack of available and effective remedies to address
these extraordinary concerns. It is intended to address
violations of or threats to the rights to life, liberty or security, as
an extraordinary and independent remedy beyond those
available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect
concerns that are purely property or commercial. Neither is it a
writ that we shall issue on amorphous and uncertain grounds.
Consequently, the Rule on the Writ of Amparo in line with the
extraordinary character of the writ and the reasonable certainty
that its issuance demands requires that every petition for the
issuance of the writ must be supported by justifying allegations
of fact, to wit:

IV. DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO


STATUTORY BASIS FOR THE DOJ SECRETARYS CLAIMED
POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE
CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY
STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF
LAW AND NEED NOT BE ATTACKED IN A DIRECT
PROCEEDING.
Petitioner maintains that the writ of amparo does not only
exclusively apply to situations of extrajudicial killings and
enforced disappearances but encompasses the whole gamut
of liberties protected by the Constitution. Petitioner argues that
"[liberty] includes the right to exist and the right to be free from
arbitrary personal restraint or servitude and includes the right
of the citizens to be free to use his faculties in all lawful ways."
Part of the right to liberty guaranteed by the Constitution is the
right of a person to travel.
In their Comment,8 both respondents Secretary Gonzalez and
Commissioner Libanan argue that: 1) HDO No. 45 was validly
issued by the Secretary of Justice in accordance with
Department of Justice Circular No. 17, Series of 1998,9 and
Circular No. 18, Series of 2007,10 which were issued pursuant
to said Secretarys mandate under the Administrative Code of
1987, as head of the principal law agency of the government,
to investigate the commission of crimes, prosecute offenders,
and provide immigration regulatory services; and; 2) the issue
of the constitutionality of the DOJ Secretarys authority to issue
hold departure orders under DOJ Circulars Nos. 17 and 18 is
not within the ambit of a writ of amparo.
The case hinges on the issue as to whether or not petitioners
right to liberty has been violated or threatened with violation by
the issuance of the subject HDO, which would entitle him to the
privilege of the writ of amparo.
The petition must fail.
Section 1 of the Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
The Court, in Secretary of National Defense et al. v. Manalo et
al.,11 made a categorical pronouncement that the Amparo
Rule in its present form is confined to these two instances of
"extralegal killings" and "enforced disappearances," or to
threats thereof, thus:
x x x As the Amparo Rule was intended to address the
intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined
to these two instances or to threats thereof. "Extralegal killings"
are "killings committed without due process of law, i.e., without
legal safeguards or judicial proceedings." On the other hand,
"enforced disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a person by
a government official or organized groups or private individuals
acting with the direct or indirect acquiescence of the
government; the refusal of the State to disclose the fate or

In Tapuz v. Del Rosario,13 the Court laid down the basic


principle regarding the rule on the writ of amparo as follows:

"(a) The personal circumstances of the petitioner;


(b) The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by an
assumed appellation;
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in
supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of
the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party and
the identity of the person responsible for the threat, act or
omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and
equitable reliefs."14
The writ shall issue if the Court is preliminarily satisfied with the
prima facie existence of the ultimate facts determinable from
the supporting affidavits that detail the circumstances of how
and to what extent a threat to or violation of the rights to life,
liberty and security of the aggrieved party was or is being
committed. (Emphasis supplied)
Here, petitioner invokes this extraordinary remedy of the writ of
amparo for the protection of his right to travel. He insists that
he is entitled to the protection covered by the Rule on the Writ
of Amparo because the HDO is a continuing actual restraint on
his right to travel. The Court is thus called upon to rule whether
or not the right to travel is covered by the Rule on the Writ of
Amparo.
The rights that fall within the protective mantle of the Writ of
Amparo under Section 1 of the Rules thereon are the following:
(1) right to life; (2) right to liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et al.,15 the
Court explained the concept of right to life in this wise:
While the right to life under Article III, Section 1 guarantees
essentially the right to be alive- upon which the enjoyment of
all other rights is preconditioned - the right to security of person
is a guarantee of the secure quality of this life, viz: "The life to
which each person has a right is not a life lived in fear that his
person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that

the government he established and consented to, will protect


the security of his person and property. The ideal of security in
life and property pervades the whole history of man. It
touches every aspect of mans existence." In a broad sense,
the right to security of person "emanates in a persons legal
and uninterrupted enjoyment of his life, his limbs, his body, his
health, and his reputation. It includes the right to exist, and the
right to enjoyment of life while existing, and it is invaded not
only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual."16
The right to liberty, on the other hand, was defined in the City
of Manila, et al. v. Hon. Laguio, Jr.,17 in this manner:
Liberty as guaranteed by the Constitution was defined by
Justice Malcolm to include "the right to exist and the right to be
free from arbitrary restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the
person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by
his Creator, subject only to such restraint as are necessary for
the common welfare." x x x
Secretary of National Defense et al. v. Manalo et al.18
thoroughly expounded on the import of the right to security,
thus:
A closer look at the right to security of person would yield
various permutations of the exercise of this right.
First, the right to security of person is "freedom from fear." In its
"whereas" clauses, the Universal Declaration of Human Rights
(UDHR) enunciates that "a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and
want has been proclaimed as the highest aspiration of the
common people." (emphasis supplied) Some scholars
postulate that "freedom from fear" is not only an aspirational
principle, but essentially an individual international human
right. It is the "right to security of person" as the word "security"
itself means "freedom from fear." Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of person.
The Philippines is a signatory to both the UDHR and the
ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from
fear" is the right and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused
by the same stimulus can range from being baseless to wellfounded as people react differently. The degree of fear can
vary from one person to another with the variation of the
prolificacy of their imagination, strength of character or past
experience with the stimulus. Thus, in the amparo context, it is
more correct to say that the "right to security" is actually the
"freedom from threat." Viewed in this light, the "threatened with
violation" Clause in the latter part of Section 1 of the Amparo
Rule is a form of violation of the right to security mentioned in
the earlier part of the provision.
Second, the right to security of person is a guarantee of bodily
and psychological integrity or security. Article III, Section II of
the 1987 Constitution guarantees that, as a general rule, ones
body cannot be searched or invaded without a search warrant.
Physical injuries inflicted in the context of extralegal killings
and enforced disappearances constitute more than a search or
invasion of the body. It may constitute dismemberment,
physical disabilities, and painful physical intrusion. As the
degree of physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical injuries constitute a
crime against persons because they are an affront to the bodily
integrity or security of a person.
Third, the right to security of person is a guarantee of
protection of ones rights by the government. In the context of
the writ of amparo, this right is built into the guarantees of the
right to life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom

from threat and guarantee of bodily and psychological integrity)


under Article III, Section 2. The right to security of person in
this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II,
Section 11 of the 1987 Constitution. As the government is the
chief guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security of person is
rendered ineffective if government does not afford protection to
these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar
of justice. x x x (emphasis supplied) 19
The right to travel refers to the right to move from one place to
another.20 As we have stated in Marcos v. Sandiganbayan,21
"xxx a persons right to travel is subject to the usual constraints
imposed by the very necessity of safeguarding the system of
justice. In such cases, whether the accused should be
permitted to leave the jurisdiction for humanitarian reasons is a
matter of the courts sound discretion." 22
Here, the restriction on petitioners right to travel as a
consequence of the pendency of the criminal case filed against
him was not unlawful. Petitioner has also failed to establish
that his right to travel was impaired in the manner and to the
extent that it amounted to a serious violation of his right to life,
liberty and security, for which there exists no readily available
legal recourse or remedy.
In Canlas et al. v. Napico Homeowners Association I XIII, Inc.
et al.,23 this Court ruled that:
This new remedy of writ of amparo which is made available by
this Court is intended for the protection of the highest possible
rights of any person, which is his or her right to life, liberty and
security. The Court will not spare any time or effort on its part in
order to give priority to petitions of this nature. However, the
Court will also not waste its precious time and effort on matters
not covered by the writ.
We find the direct recourse to this Court inappropriate,
considering the provision of Section 22 of the Rule on the Writ
of Amparo which reads:
Section 22. Effect of Filing of a Criminal Action. When a
criminal action has been commenced, no separate petition for
the writ shall be filed. The reliefs under the writ shall be
available by motion in the criminal case.1avvphi1
The procedure under this Rule shall govern the disposition of
the reliefs available under the writ of amparo.
Pursuant to the aforementioned Section 22, petitioner should
have filed with the RTC-Makati a motion to lift HDO No. 45 in
Criminal Case No. 07-3126. Petitioner, however, did not file in
the RTC-Makati a motion to lift the DOJs HDO, as his coaccused did in the same criminal case. Petitioner argues that it
was not the RTC-Makati but the DOJ that issued the said HDO,
and that it is his intention not to limit his remedy to the lifting of
the HDO but also to question before this Court the
constitutionality of the power of the DOJ Secretary to issue an
HDO.24 We quote with approval the CAs ruling on this matter:
The said provision [Section 22] is an affirmation by the
Supreme Court of its pronouncement in Crespo v. Mogul25
that once a complaint or information is filed in court, any
disposition of the case such as its dismissal or its continuation
rests on the sound discretion of the court. Despite the denial of
respondents MR of the dismissal of the case against
petitioner, the trial court has not lost control over Criminal Case
No. 07-3126 which is still pending before it. By virtue of its
residual power, the court a quo retains the authority to
entertain incidents in the instant case to the exclusion of even
this Court. The relief petitioner seeks which is the lifting of the
HDO was and is available by motion in the criminal case. (Sec.
22, Rule on the Writ of amparo, supra).26
Even in civil cases pending before the trial courts, the Court
has no authority to separately and directly intervene through

the writ of amparo, as elucidated in Tapuz v. Del Rosario,27


thus:
Where, as in this case, there is an ongoing civil process
dealing directly with the possessory dispute and the reported
acts of violence and harassment, we see no point in separately
and directly intervening through a writ of amparo in the
absence of any clear prima facie showing that the right to life,
liberty or securitythe personal concern that the writ is
intended to protectis immediately in danger or threatened, or
that the danger or threat is continuing. We see no legal bar,
however, to an application for the issuance of the writ, in a
proper case, by motion in a pending case on appeal or on
certiorari, applying by analogy the provisions on the coexistence of the writ with a separately filed criminal case.
Additionally, petitioner is seeking the extraordinary writ of
amparo due to his apprehension that the DOJ may deny his
motion to lift the HDO.28 Petitioners apprehension is at best
merely speculative. Thus, he has failed to show any clear
threat to his right to liberty actionable through a petition for a
writ of amparo. The absence of an actual controversy also
renders it unnecessary for us on this occasion to pass upon
the constitutionality of DOJ Circular No. 17, Series of 1998
(Prescribing Rules and Regulations Governing the Issuance of
Hold Departure Orders); and Circular No. 18, Series of 2007
(Prescribing Rules and Regulations Governing the Issuance
and Implementation of Watchlist Orders and for Other
Purposes).

15, 2009 had been disapproved and his travel considered


unauthorized by the Court. His absences shall not be deducted
from his leave credits but from his salary corresponding to the
seven (7) days that he was absent, pursuant to Section 50 of
the Omnibus Rules on Leave.6 The respondent was also
required to submit his explanation on his failure to comply with
OCA Circular No. 49-2003.
In his letter-explanation dated February 25, 2010, the
respondent narrated that his daughter, a nurse working in New
Jersey, USA, gave him a trip to Hongkong as a gift for his 65th
birthday. In the first week of September 2009, he received a
call from his daughter that she had already booked him,
together with his wife and two sons, in a hotel in Hongkong
from September 13 to 15, 2009. They flew in to Manila from
Surigao City on September 9, 2009, intending to prepare the
necessary papers for his authority to travel at the Supreme
Court the following day. However, sensing time constraint and
thinking of the futility of completing the requirements before
their scheduled flight, he opted not to immediately complete
the requirements and simply went ahead with their travel
abroad. He thought of submitting his compliance upon his
return to Manila. He acknowledged his mistake and regretted
his failure to comply with OCA Circular No. 49-2003. He
promised not to commit the same infraction again. He further
requested for reconsideration of the OCAs intended action to
deduct his salary corresponding to the seven (7) days that he
was absent, instead of charging his absences to his leave
credits.

WHEREFORE, the petition is DISMISSED. The assailed


Decision of the CA dated February 4, 2008 in CA-G.R. No.
00011 is hereby AFFIRMED.
SO ORDERED.

In an Evaluation Report dated September 6, 2010, the OCA


found the respondent guilty of violation of OCA Circular No. 492003 for traveling out of the country without filing the
necessary application for leave and without first securing a
travel authority from the Court. The OCA recommended:

Office of the Administrative Services v Macarine

a) this matter be RE-DOCKETED as a regular administrative


matter;

The Office of the Court Administrator (OCA) filed the present


administrative case against Judge Ignacio B. Macarine
(respondent) for violation of OCA Circular No. 49-20031 dated
May 20, 2003.
OCA Circular No. 49-2003 requires that all foreign travels of
judges and court personnel, regardless of the number of days,
must be with prior permission from the Court. A travel authority
must be secured from the OCA Judges must submit the
following requirements:
(1.) application or letter-request addressed to the Court
Administrator stating the purpose of the travel abroad;
(2.) application for leave covering the period of the travel
abroad, favorably recommended by the Executive Judge; and
(3.) certification from the Statistics Division, Court Management
Office, OCA as to the condition of the docket.2
The complete requirements should be submitted to and
received by the OCA at least two weeks before the intended
time of travel. No action shall be taken on requests for travel
authority with incomplete requirements.3
Judges and personnel who shall leave the country without
travel authority issued by the OCA shall be subject to
disciplinary action.4
On August 13, 2009, the respondent wrote then Court
Administrator, now Associate Justice Jose Portugal Perez,
requesting for authority to travel to Hongkong with his family for
the period of September 10 - 14, 2009 where he would
celebrate his 65th birthday. The respondent stated that his
travel abroad shall be charged to his annual forced leave.
However, he did not submit the corresponding application for
leave. For his failure to submit the complete requirements, his
request for authority to travel remained unacted upon. The
respondent proceeded with his travel abroad without the
required travel authority from the OCA.
On January 28, 2010,5 the respondent was informed by the
OCA that his leave of absence for the period of September 9-

b) Judge Ignacio B. Macarine, MCTC, Gen. Luna, Surigao del


Norte, be FINED in the amount of P5,000.00 for Violation for
Circular No. 49-2003 dated May 20, 2003; and c) the Financial
Management Office, Finance Division, OCA, be DIRECTED to
DEDUCT the amount equivalent to the seven (7) days salary of
Judge Ignacio Macarine as a result of his disapproved and
unauthorized leave of absence pursuant to Section 50,
Omnibus Rules on Leave, without deducting his leave credits
thereof. [emphases supplied]
True, the right to travel is guaranteed by the
Constitution.1wphi1 However, the exercise of such right is not
absolute. Section 6, Article III of the 1987 Constitution allows
restrictions on ones right to travel provided that such
restriction is in the interest of national security, public safety or
public health as may be provided by law. This, however, should
by no means be construed as limiting the Courts inherent
power of administrative supervision over lower courts. OCA
Circular No. 49-2003 does not restrict but merely regulates, by
providing guidelines to be complied by judges and court
personnel, before they can go on leave to travel abroad. To
"restrict" is to restrain or prohibit a person from doing
something; to "regulate" is to govern or direct according to rule.
To ensure management of court dockets and to avoid
disruption in the administration of justice, OCA Circular No. 492003 requires a judge who wishes to travel abroad to submit,
together with his application for leave of absence duly
recommended for approval by his Executive Judge, a
certification from the Statistics Division, Court Management
Office of the OCA, as to the condition of his docket, based on
his Certificate of Service for the month immediately preceding
the date of his intended travel, that he has decided and
resolved all cases or incidents within three (3) months from
date of submission, pursuant to Section 15(1) and (2), Article
VIII of the 1987 Constitution.7
For traveling abroad without having been officially allowed by
the Court, the respondent is guilty of violation of OCA Circular
No. 49-2003. Under Section 9(4), Rule 140 of the Revised
Rules of Court, violation of Supreme Court directives and

circular is considered a less serious charge and, therefore,


punishable by suspension from office without salary and other
benefits for not less than one (1) month nor more than three (3)
months; or a fine of more than P10,000.00 but not exceeding
P20,000.00.8

required travel authority, with the intention of securing one after


his travel. The respondent regretted his failure to comply with
the requirements of OCA Circular No. 49-2003. He
acknowledged his mistake and promised not to commit the
same infraction in the future.

Section 53, Rule IV of the Revised Rules on Administrative


Cases in the Civil Service grants the disciplining authority the
discretion to consider mitigating circumstances in the
imposition of the proper penalty. The Court had in several
instances refrained from imposing the actual penalties in the
presence of mitigating facts, such as the employees length of
service, acknowledgement of his or her infractions and feelings
of remorse for the same, advanced age, family circumstances,
and other humanitarian and equitable considerations.

We consider the outlined circumstances as mitigating.


Following judicial precedents, the respondent deserves some
degree of leniency in imposing upon him the appropriate
penalty.

In the present case, the respondent, after learning that his


daughter had already booked him and his family in a hotel in
Hongkong, immediately went to Manila to secure his travel
authority from the Court. However, with the short period of time
from their arrival in Manila on September 9, 2009 up to the
time of their booking in Hongkong from September 13 to 15,
2009, he was pressed for time and opted not to complete the

WHEREFORE, respondent Judge Ignacio B. Macarine,


Municipal Circuit Trial Court, Gen. Luna, Surigao del Norte, is
hereby given the ADMONITION that he acted irresponsibly
when he opted not to immediately secure a travel authority and
is saved only from the full force that his violation carries by the
attendant mitigating circumstances. He is also WARNED that
the commission of a similar violation in the future will merit a
more severe penalty. The recommendation of the Office of the
Court Administration that his absences, which were
unauthorized, shall not be deducted from his leave credits but
from his salary is hereby APPROVED.
SO ORDERED.