Writ of Amparo

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 180906
October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world behind secret
walls, they are not separated from the constitutional protection of their basic rights. The
constitution is an overarching sky that covers all in its protection. The case at bar involves the
rights to life, liberty and security in the first petition for a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section
191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact
and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001,
entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order
(TRO)2 filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to
stop herein petitioners (therein respondents) and/or their officers and agents from depriving them
of their right to liberty and other basic rights. Therein petitioners also sought ancillary remedies,
Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all
other legal and equitable reliefs under Article VIII, Section 5(5) 3 of the 1987 Constitution and Rule
135, Section 6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the
Secretary of the Department of National Defense and the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead, including but not limited to the Citizens Armed
Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing
the arrest of therein petitioners, or otherwise restricting, curtailing, abridging, or depriving them of
their right to life, liberty, and other basic rights as guaranteed under Article III, Section 1 4 of the
1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on
October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as AmparoPetition, to Admit Supporting Affidavits, and to Grant Interim and
Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein
respondents to make a verified return within the period provided by law and containing the specific
matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all
other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after
hearing, render judgment as required in Sec. 18 7 of the Amparo Rule; and (5) all other just and
equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under
the AmparoRule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file
with the CA (Court of Appeals) a verified written return within five (5) working days from
1
service of the writ. We REMAND the petition to the CA and designate the Division of
Associate Justice Lucas P. Bersamin to conduct the summary hearing on the petition on

November 8, 2007 at 2:00 p.m. and decide the petition in accordance with the Rule on the
Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners
(herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from notice of
this decision all official and unofficial reports of the investigation undertaken
in connection with their case, except those already on file herein;
2. To confirm in writing the present places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald Caigas within five days from notice of
this decision.
3. To cause to be produced to this Court all medical reports, records and
charts, reports of any treatment given or recommended and medicines
prescribed, if any, to the petitioners, to include a list of medical and (sic)
personnel (military and civilian) who attended to them from February 14, 2006
until August 12, 2007 within five days from notice of this decision.
The compliance with this decision shall be made under the signature and oath of
respondent AFP Chief of Staff or his duly authorized deputy, the latter's authority to be
express and made apparent on the face of the sworn compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein
respondents:
Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006,
several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the
residents of theirbarangay in San Idelfonso, Bulacan. Respondents were not able to attend as they
were not informed of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso,
Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was Bestre, but his mother, Ester
Manalo, replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks
and nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and
forced to the ground face down. He was kicked on the hip, ordered to stand and face up to the
light, then forcibly brought near the road. He told his mother to follow him, but three soldiers
stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning
de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all
members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized
brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being
forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.13
The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being
blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he
estimated was about 40 years of age or older. The leader of the team who entered his house and
abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his
abductors was "George" who was tall, thin, white-skinned and about 30 years old.14

The van drove off, then came to a stop. A person was brought inside the van and made to sit
beside Raymond. Both of them were beaten up. On the road, he recognized the voice of the person
beside him as his brother Reynaldo's. The van stopped several times until they finally arrived at a
house. Raymond and Reynaldo were each brought to a different room. With the doors of their
rooms left open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the
head and other parts of his body with the butt of their guns for about 15 minutes. After which,
Reynaldo was brought to his (Raymond's) room and it was his (Raymond's) turn to be beaten up in
the other room. The soldiers asked him if he was a member of the New People's Army. Each time
he said he was not, he was hit with the butt of their guns. He was questioned where his comrades
were, how many soldiers he had killed, and how many NPA members he had helped. Each time he
answered none, they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat
him up would salute them, call them "sir," and treat them with respect. He was in blindfolds when
interrogated by the high officials, but he saw their faces when they arrived and before the blindfold
was put on. He noticed that the uniform of the high officials was different from those of the other
soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead
of combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas
corpus case filed in connection with the respondents' abduction.16 While these officials
interrogated him, Raymond was not manhandled. But once they had left, the soldier guards beat
him up. When the guards got drunk, they also manhandled respondents. During this time,
Raymond was fed only at night, usually with left-over and rotten food.17
On the third week of respondents' detention, two men arrived while Raymond was sleeping and
beat him up. They doused him with urine and hot water, hit his stomach with a piece of wood,
slapped his forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of
his body with a burning wood. When he could no longer endure the torture and could hardly
breathe, they stopped. They then subjected Reynaldo to the same ordeal in another room. Before
their torturers left, they warned Raymond that they would come back the next day and kill him. 18
The following night, Raymond attempted to escape. He waited for the guards to get drunk, then
made noise with the chains put on him to see if they were still awake. When none of them came to
check on him, he managed to free his hand from the chains and jumped through the window. He
passed through a helipad and firing range and stopped near a fishpond where he used stones to
break his chains. After walking through a forested area, he came near a river and an Iglesia ni
Kristo church. He talked to some women who were doing the laundry, asked where he was and the
road to Gapan. He was told that he was in Fort Magsaysay. 19 He reached the highway, but some
soldiers spotted him, forcing him to run away. The soldiers chased him and caught up with him.
They brought him to another place near the entrance of what he saw was Fort Magsaysay. He was
boxed repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him.
Then a so-called "Mam" or "Madam" suddenly called, saying that she wanted to see Raymond
before he was killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay
where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their wounds were treated.
When the wounds were almost healed, the torture resumed, particularly when respondents' guards
got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by
steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything
there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that
eighteen people22 had been detained in thatbartolina, including his brother Reynaldo and himself.23
For about three and a half months, the respondents were detained in Fort Magsaysay. They were
2
kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The

house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their
house. They were also sometimes detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took
their urine samples and marked them. When asked how they were feeling, they replied that they
had a hard time urinating, their stomachs were aching, and they felt other pains in their body. The
next day, two ladies in white arrived. They also examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid. They brought with them the results of
respondents' urine test and advised them to drink plenty of water and take their medicine. The two
ladies returned a few more times. Thereafter, medicines were sent through the "master" of the DTU,
"Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two
weeks. While there, he met a soldier named Efren who said that Gen. Palparan ordered him to
monitor and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several
other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren
stayed with them. While there, Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the
Revo. They were detained in a big unfinished house inside the compound of "Kapitan" for about
three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out
of the house to a basketball court in the center of the compound and made to sit. Gen. Palparan
was already waiting, seated. He was about two arms' length away from respondents. He began by
asking if respondents felt well already, to which Raymond replied in the affirmative. He asked
Raymond if he knew him. Raymond lied that he did not. He then asked Raymond if he would be
scared if he were made to face Gen. Palparan. Raymond responded that he would not be because
he did not believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa
akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay,
basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag
pumunta sa mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang
kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na
kausapin si Bestre na sumuko na sa gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At
about 3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them
- brought them to their parents' house. Raymond was shown to his parents while Reynaldo stayed
in the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents
acceded. Hilario threatened Raymond's parents that if they continued to join human rights rallies,
they would never see their children again. The respondents were then brought back to Sapang. 29
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with
the four "masters" who were there: Arman, Ganata, Hilario and Cabalse. 30 When Gen. Palparan saw
Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as
Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for
him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them
strong. He also said that they should prove that they are on the side of the military and warned that
they would not be given another chance. 31 During his testimony, Raymond identified Gen. Palparan
by his picture.32

One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The
medicine, named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of
this medicine and instructed to take one capsule a day. Arman checked if they were getting their
dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy upon
waking up.33
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman
instructed Raymond that while in Sapang, he should introduce himself as "Oscar," a military
trainee from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the
men who abducted him from his house, and got acquainted with other military men and civilians. 34
After about three months in Sapang, Raymond was brought to Camp Tecson under the 24 th Infantry
Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put
on him and he was kept in the barracks.35
The next day, Raymond's chains were removed and he was ordered to clean outside the barracks.
It was then he learned that he was in a detachment of the Rangers. There were many soldiers,
hundreds of them were training. He was also ordered to clean inside the barracks. In one of the
rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home and be with
her parents. During the day, her chains were removed and she was made to do the laundry. 36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other
captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in the room with
"Allan" whose name they later came to know as Donald Caigas, called "master" or "commander"
by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At
times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their
chains were removed, but were put back on at night. They were threatened that if they escaped,
their families would all be killed.37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should
be thankful they were still alive and should continue along their "renewed life." Before the hearing
of November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend
the hearing. However, their parents had already left for Manila. Respondents were brought back to
Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond
was instructed to continue using the name "Oscar" and holding himself out as a military trainee.
He got acquainted with soldiers of the 24 th Infantry Battalion whose names and descriptions he
stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They
stayed in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there,
battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the
stomach with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They
were all made to clean, cook, and help in raising livestock.39
Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers
brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought
to Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin.
The soldiers said he was killed because he had a son who was a member of the NPA and he
coddled NPA members in his house.40 Another time, in another "Operation Lubog," Raymond was
brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man
of the house who was sick was there. They spared him and killed only his son right before
3
Raymond's eyes.41

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was
in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They
stayed in Zambales from May 8 or 9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed
and experienced in the camp,viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald
na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon
man kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang
bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang
katawan at ito'y sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong
sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng
dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas
ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa
kanila at binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong
pinatay nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga
bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod.
Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila
sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin
daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas,
pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di
nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw
pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang
sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang
babae at si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni
Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi
na kami kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to
raise poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for
which, he would take care of the food of their family. They were also told that they could farm a
small plot adjoining his land and sell their produce. They were no longer put in chains and were
instructed to use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent
themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They could see the highway from where they stayed.
They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could
get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not use it. They earned some more until they had
saved Php1,400.00 between them.

There were four houses in the compound. Raymond and Reynaldo were housed in one of them
while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of
the guards. Respondents' house did not have electricity. They used a lamp. There was no
television, but they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a
drinking session. At about 1:00 a.m., Raymond turned up the volume of the radio. When none of
the guards awoke and took notice, Raymond and Reynaldo proceeded towards the highway,
leaving behind their sleeping guards and barking dogs. They boarded a bus bound for Manila and
were thus freed from captivity.45
Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they
related to matters they witnessed together. Reynaldo added that when they were taken from their
house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his
shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When
Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told
that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol,
Reynaldo was hit on the back and punched in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was
separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of
Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and
to represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought
along Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan
and made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila
where Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black
and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the
blindfold once outside the province. In one of their trips, they passed by Fort Magsaysay and Camp
Tecson where Reynaldo saw the sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo
Manalo. Dr. Molino specialized in forensic medicine and was connected with the Medical Action
Group, an organization handling cases of human rights violations, particularly cases where torture
was involved. He was requested by an NGO to conduct medical examinations on the respondents
after their escape. He first asked them about their ordeal, then proceeded with the physical
examination. His findings showed that the scars borne by respondents were consistent with their
account of physical injuries inflicted upon them. The examination was conducted on August 15,
2007, two days after respondents' escape, and the results thereof were reduced into writing. Dr.
Molino took photographs of the scars. He testified that he followed the Istanbul Protocol in
conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with
the October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting
the abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado, disappeared or under the custody by the
military. This is a settled issue laid to rest in the habeas corpus case filed in their behalf
by petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against
M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen.
Jovito Palparan, as Commander of the 7 th Infantry Division in Luzon; Lt. Gen.
Hermogenes Esperon, in his capacity as the Commanding General of the Philippine
Army, and members of the Citizens Armed Forces Geographical Unit (CAFGU), namely:
Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza
and Rudy Mendoza. The respondents therein submitted a return of the writ... On July 4,
4
2006, the Court of Appeals dropped as party respondents Lt. Gen. Hermogenes C.
Esperon, Jr., then Commanding General of the Philippine Army, and on September 19,

2006, Maj. (sic) Jovito S. Palparan, then Commanding General, 7th Infantry Division,
Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding
that no evidence was introduced to establish their personal involvement in the taking of
the Manalo brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal
Hilario aka Rollie Castillo for lack of evidence establishing his involvement in any
capacity in the disappearance of the Manalo brothers, although it held that the remaining
respondents were illegally detaining the Manalo brothers and ordered them to release
the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner)
Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and
was thus unaware of the Manalo brothers' alleged abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual military directional
operations, neither does he undertake command directions of the AFP units in the field,
nor in any way micromanage the AFP operations. The principal responsibility of the
Secretary of National Defense is focused in providing strategic policy direction to the
Department (bureaus and agencies) including the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this
case, I have directed the Chief of Staff, AFP to institute immediate action in compliance
with Section 9(d) of the AmparoRule and to submit report of such compliance...
Likewise, in a Memorandum Directive also dated October 31, 2007, I have issued a policy
directive addressed to the Chief of Staff, AFP that the AFP should adopt the following
rules of action in the event the Writ of Amparo is issued by a competent court against
any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or disappearance of
the person identified in the petition which may aid in the prosecution of the
person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the
death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have brought about
the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death or
disappearance; and
(6) to bring the suspected offenders before a competent court.49
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of
the Writ, attesting that he received the above directive of therein respondent Secretary of National
Defense and that acting on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the
petitioners.
3.2. I have caused the immediate investigation and submission of the result thereof to
Higher headquarters and/or direct the immediate conduct of the investigation on the
matter by the concerned unit/s, dispatching Radio Message on November 05, 2007,
addressed to the Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D
PA and CO 24 IB PA). A Copy of the Radio Message is attached as ANNEX "3" of this
Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be conducted
by the concerned unit relative to the circumstances of the alleged disappearance of the

persons in whose favor the Writ ofAmparo has been sought for as soon as the same has
been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to another
Petition for the Writ ofAmparo (G.R. No. 179994) filed at the instance of relatives of a
certain Cadapan and Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to
establish the surrounding circumstances of the disappearances of the petitioners and to
bring those responsible, including any military personnel if shown to have participated
or had complicity in the commission of the complained acts, to the bar of justice, when
warranted by the findings and the competent evidence that may be gathered in the
process.50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA,
earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeo
and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the 24 th Infantry Batallion
detachment as detention area, I immediately went to the 24 th IB detachment in Limay,
Bataan and found no untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeo and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24 th IB in Limay,
Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the
Philippine National Police, Limay, Bataan regarding the alleged detentions or deaths and
were informed that none was reported to their good office;
13) I also directed Company Commander 1 st Lt. Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn
Cadapan, Karen Empeo and Manuel Merino were detained. As per the inquiry, however,
no such beachhouse was used as a detention place found to have been used by armed
men to detain Cadapan, Empeo and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen
Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission of the Return and would be
subsequently submitted.52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez,
Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan,
Bulacan, Pampanga, Tarlac and a portion of Pangasinan. 53 The 24th Infantry Battalion is part of the
7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7 th Infantry
Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged
abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la
Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; exCAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to
determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if
any.57Jimenez testified that this particular investigation was initiated not by a complaint as was the
usual procedure, but because the Commanding General saw news about the abduction of the
Manalo brothers on the television, and he was concerned about what was happening within his
territorial jurisdiction.58
5
Jimenez summoned all six implicated persons for the purpose of having them execute sworn
statements and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in

the morning and finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo
Lingad, took the individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned
and investigated61 as according to Jimenez, the directive to him was only to investigate the six
persons.62
Jimenez was beside Lingad when the latter took the statements. 63 The six persons were not known
to Jimenez as it was in fact his first time to meet them. 64 During the entire time that he was beside
Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a
single question to the six persons.65
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and
Rudy Mendoza had to come back the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified that the two signed on May 30,
2006, but the jurats of their statements indicated that they were signed on May 29, 2006. 66 When the
Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He
began writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006. 67 He then gave his
report to the Office of the Chief of Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence,
the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who
were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on 14 February 2006 by unidentified armed men and thereafter were
forcibly disappeared. After the said incident, relatives of the victims filed a case for
Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning dela
Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged
members of the Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit
"B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located nearby his residence, together with
some neighbor thereat. He claims that on 15 February 2006, he was being informed by
Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and
Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that
they only implicated him because he was a CAFGU and that they claimed that those who
abducted the Manalo brothers are members of the Military and CAFGU. Subject
vehemently denied any participation or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @
KA BESTRE of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the suspects,
he claims that on February 14, 2006, he was one of those working at the concrete chapel
being constructed nearby his residence. He claims further that he just came only to
know about the incident on other day (15 Feb 06) when he was being informed by
Kagawad Pablo Kunanan. That subject CAA vehemently denied any participation about
the incident and claimed that they only implicated him because he is a member of the
CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O")
states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a

member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was
very much aware about the background of the two (2) brothers Raymond and Reynaldo
as active supporters of the CPP NPA in their Brgy. and he also knew their elder brother
"KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that
on 14 February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of
his aunt and he learned only about the incident when he arrived home in their place. He
claims further that the only reason why they implicated him was due to the fact that his
mother has filed a criminal charge against their brother Rolando Manalo @ KA BESTRE
who is an NPA Commander who killed his father and for that reason they implicated him
in support of their brother. Subject CAA vehemently denied any involvement on the
abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E")
states that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond
and Reynaldo Manalo are familiar to him being his barriomate when he was still
unmarried and he knew them since childhood. Being one of the accused, he claims that
on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He
claims that he was being informed only about the incident lately and he was not aware of
any reason why the two (2) brothers were being abducted by alleged members of the
military and CAFGU. The only reason he knows why they implicated him was because
there are those people who are angry with their family particularly victims of summary
execution (killing) done by their brother @ KA Bestre Rolando Manalo who is an NPA
leader. He claims further that it was their brother @ KA BESTRE who killed his father and
he was living witness to that incident. Subject civilian vehemently denied any
involvement on the abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F")
states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, a farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He
claims that Raymond and Reynaldo Manalo are familiar to him being their barrio mate.
He claims further that they are active supporters of CPP/NPA and that their brother
Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the accused, he claims
that on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation of the
alleged abduction of the two (2) brothers and learned only about the incident when
rumors reached him by his barrio mates. He claims that his implication is merely
fabricated because of his relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers
Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they are active supporters or sympathizers of
the CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he
was helping in the construction of their concrete chapel in their place and he learned
only about the incident which is the abduction of Raymond and Reynaldo Manalo when
one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the
matter. He claims further that he is truly innocent of the allegation against him as being
one of the abductors and he considers everything fabricated in order to destroy his
name that remains loyal to his service to the government as a CAA member.
IV. DISCUSSION

5. Based on the foregoing statements of respondents in this particular case, the proof of
linking them to the alleged abduction and disappearance of Raymond and Reynaldo
Manalo that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that
incident is considered doubtful, hence, no basis to indict them as charged in this
investigation.
Though there are previous grudges between each families (sic) in the past to quote: the
killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo,
this will not suffice to establish a fact that they were the ones who did the abduction as a
form of revenge. As it was also stated in the testimony of other accused claiming that the
Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting their
village from any intervention by the leftist group, hence inside their village, they were
fully aware of the activities of Raymond and Reynaldo Manalo in so far as their
connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges of
abduction committed by the above named respondents has not been established in this
investigation. Hence, it lacks merit to indict them for any administrative punishment
and/or criminal liability. It is therefore concluded that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated
from the case.
8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate court's assessment of the
foregoing evidence and assail the December 26, 2007 Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND
GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR CASE,
EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE
PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT
OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF
ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY,
TO THE MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL
(MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL
AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that
resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced

Disappearances sponsored by the Court on July 16-17, 2007. The Summit was "envisioned to
provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and social spectrum, as
well as all the stakeholders in the justice system" 72 participated in mapping out ways to resolve the
crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of
extralegal killing and enforced disappearances."73 It was an exercise for the first time of the Court's
expanded power to promulgate rules to protect our people's constitutional rights, which made its
maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial
law regime.74 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." 75 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
whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which
places such persons outside the protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish. 77 In
1837, de Tocqueville's Democracy in America became available in Mexico and stirred great interest.
Its description of the practice of judicial review in the U.S. appealed to many Mexican jurists. 78 One
of them, Manuel Crescencio Rejn, drafted a constitutional provision for his native state,
Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national constitution in
1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise and
preservation of those rights granted to him by this Constitution and by laws enacted
pursuant hereto, against attacks by the Legislative and Executive powers of the federal
or state governments, limiting themselves to granting protection in the specific case in
litigation, making no general declaration concerning the statute or regulation that
motivated the violation.80
Since then, the protection has been an important part of Mexican constitutionalism. 81 If, after
hearing, the judge determines that a constitutional right of the petitioner is being violated, he
orders the official, or the official's superiors, to cease the violation and to take the necessary
measures to restore the petitioner to the full enjoyment of the right in question. Amparo thus
combines the principles of judicial review derived from the U.S. with the limitations on judicial
power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce
the constitution by protecting individual rights in particular cases, but prevents them from using
this power to make law for the entire nation.82
The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into
various forms, in response to the particular needs of each country. 83 It became, in the words of a
justice of the Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of
conveying to the world's legal heritage that institution which, as a shield of human dignity, her own
painful history conceived."84 What began as a protection against acts or omissions of public
authorities in violation of constitutional rights later evolved for several purposes: (1) Amparo
libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) Amparo
contra leyes for the judicial review of the constitutionality of statutes; (3) Amparo casacion for the
judicial review of the constitutionality and legality of a judicial decision; (4) Amparo
7
administrativo for the judicial review of administrative actions; and (5) Amparo agrario for the
protection of peasants' rights derived from the agrarian reform process. 85

In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to
protect against human rights abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to protect the whole gamut of
constitutional rights, including socio-economic rights.86Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to
some constitutional guarantees or fundamental rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo,
several of the above Amparo protections are guaranteed by our charter. The second paragraph of
Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial
power "to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government." The
Clause accords a similar general protection to human rights extended by the Amparo contra
leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy
of habeas corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring
of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case
of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse Clause through remedies of
injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas
corpus under Rule 102,90 these remedies may not be adequate to address the pestering problem of
extralegal killings and enforced disappearances. However, with the swiftness required to resolve a
petition for a writ of Amparo through summary proceedings and the availability of appropriate
interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil
law traditions - borne out of the Latin American and Philippine experience of human rights abuses offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The
remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings.91
The writ of Amparo serves both preventive and curative roles in addressing the problem of
extralegal killings and enforced disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is curative in that it facilitates the subsequent
punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action.
In the long run, the goal of both the preventive and curative roles is to deter the further
commission of extralegal killings and enforced disappearances.
In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on August 23, 2007, 93 prior to the
promulgation of the Amparo Rule. They also sought ancillary remedies including Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and
equitable remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6
of the Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to
have their petition treated as an Amparo petition as it would be more effective and suitable to the
circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and giving full faith and
credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed
and self-serving affidavit/testimony of herein respondent Raymond Manalo.94

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause
of action, to determine whether the evidence presented is metal-strong to satisfy the degree of
proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:
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.
(emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall
establish their claims bysubstantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.95
After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that
respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on
August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated
by respondent Raymond Manalo in a clear and convincing manner. His account is dotted with
countless candid details of respondents' harrowing experience and tenacious will to escape,
captured through his different senses and etched in his memory. A few examples are the following:
"Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel." 96 "(N)ilakasan ng
mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol
ni Manuel."97 "May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato
para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako
makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na
lugar."100
We affirm the factual findings of the appellate court, largely based on respondent Raymond
Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently identified by the
petitioners (herein respondents) to be military personnel and CAFGU auxiliaries.
Raymond recalled that the six armed men who barged into his house through the rear
door were military men based on their attire of fatigue pants and army boots, and the
CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and
Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso,
Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members,
served as lookouts during the abduction. Raymond was sure that three of the six military
men were Ganata, who headed the abducting team, Hilario, who drove the van, and
George. Subsequent incidents of their long captivity, as narrated by the petitioners,
validated their assertion of the participation of the elements of the 7 th Infantry Division,
Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the suspicion that the
8
petitioners were either members or sympathizers of the NPA, considering that the

abductors were looking for Ka Bestre, who turned out to be Rolando, the brother of
petitioners.
The efforts exerted by the Military Command to look into the abduction were, at best,
merely superficial. The investigation of the Provost Marshall of the 7 th Infantry Division
focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness
might be due to the fact that the Provost Marshall could delve only into the participation
of military personnel, but even then the Provost Marshall should have refrained from
outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the very least, he
was aware of the petitioners' captivity at the hands of men in uniform assigned to his
command. In fact, he or any other officer tendered no controversion to the firm claim of
Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and told
them what he wanted them and their parents to do or not to be doing. Gen. Palparan's
direct and personal role in the abduction might not have been shown but his knowledge
of the dire situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy that
unavoidably encouraged and not merely tolerated the abduction of civilians without due
process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth Division
(Justices Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal
Hilario had anything to do with the abduction or the detention. Hilario's involvement
could not, indeed, be then established after Evangeline Francisco, who allegedly saw
Hilario drive the van in which the petitioners were boarded and ferried following the
abduction, did not testify. (See the decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van in which
the petitioners were brought away from their houses on February 14, 2006. Raymond
also attested that Hilario participated in subsequent incidents during the captivity of the
petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board
a Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where
they were detained for at least a week in a house of strong materials (Exhibit D, rollo, p.
205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on
board the Revo, to an unfinished house inside the compound of Kapitan where they were
kept for more or less three months. (Exhibit D, rollo, p. 205) It was there where the
petitioners came face to face with Gen. Palparan. Hilario and Efren also brought the
petitioners one early morning to the house of the petitioners' parents, where only
Raymond was presented to the parents to relay the message from Gen. Palparan not to
join anymore rallies. On that occasion, Hilario warned the parents that they would not
again see their sons should they join any rallies to denounce human rights violations.
(Exhibit D, rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others
being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion
when Gen. Palparan required Raymond to take the medicines for his health. (Exhibit D,
rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a
direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other military
personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly
established.
xxx xxx xxx

As to the CAFGU auxiliaries, the habeas Court found them personally involved in the
abduction. We also do, for, indeed, the evidence of their participation is overwhelming. 101
We reject the claim of petitioners that respondent Raymond Manalo's statements were not
corroborated by other independent and credible pieces of evidence. 102 Raymond's affidavit and
testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and
medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the torture
they endured while in detention. Respondent Raymond Manalo's familiarity with the facilities in
Fort Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez
to be the "Division Training Unit," 104 firms up respondents' story that they were detained for some
time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the
Commission considered similar evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November 1989. The Commission's findings of fact were
mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz
regarding her ordeal.106 These statements were supported by her recognition of portions of the
route they took when she was being driven out of the military installation where she was
detained.107 She was also examined by a medical doctor whose findings showed that the 111
circular second degree burns on her back and abrasions on her cheek coincided with her account
of cigarette burning and torture she suffered while in detention.108
With the secret nature of an enforced disappearance and the torture perpetrated on the victim
during detention, it logically holds that much of the information and evidence of the ordeal will
come from the victims themselves, and the veracity of their account will depend on their credibility
and candidness in their written and/or oral statements. Their statements can be corroborated by
other evidence such as physical evidence left by the torture they suffered or landmarks they can
identify in the places where they were detained. Where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against them comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of Amparo. There is no
quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has
now passed as they have escaped from captivity and surfaced. But while respondents admit that
they are no longer in detention and are physically free, they assert that they are not "free in every
sense of the word"109 as their "movements continue to be restricted for fear that people they have
named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large
and have not been held accountable in any way. These people are directly connected to the Armed
Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty
and security."110 (emphasis supplied) Respondents claim that they are under threat of being once
again abducted, kept captive or even killed, which constitute a direct violation of their right to
security of person.111
Elaborating on the "right to security, in general," respondents point out that this right is "often
associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against
torture and cruel and unusual punishment." Conceding that there is no right to security expressly
mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from
torture and from incommunicado detention and solitary detention places112 fall under the general
coverage of the right to security of person under the writ of Amparo." They submit that the Court
ought to give an expansive recognition of the right to security of person in view of the State Policy
under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of
every human person and guarantees full respect for human rights." Finally, to justify a liberal
9
interpretation of the right to security of person, respondents cite the teaching in Moncupa v.
Enrile113 that "the right to liberty may be made more meaningful only if there is no undue restraint

by the State on the exercise of that liberty"114 such as a requirement to "report under unreasonable
restrictions that amounted to a deprivation of liberty" 115 or being put under "monitoring and
surveillance."116
In sum, respondents assert that their cause of action consists in the threat to their right to life and
liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed been violated as
respondents assert. The right to security or the right to security of person finds a textual hook in
Article III, Section 2 of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge...
At the core of this guarantee is the immunity of one's person, including the extensions of his/her
person - houses, papers, and effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more importantly, protects the privacy
and sanctity of the person himself. 117 The purpose of this provision was enunciated by the Court
in People v. CFI of Rizal, Branch IX, Quezon City, viz:118
The purpose of the constitutional guarantee against unreasonable searches and
seizures is to prevent violations of private security in person and property and unlawful
invasion of the security of the home by officers of the law acting under legislative or
judicial sanction and to give remedy against such usurpation when attempted. (Adams v.
New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is
an essential condition to the dignity and happiness and to the peace and security of
every individual, whether it be of home or of persons and correspondence. (Taada and
Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional
inviolability of this great fundamental right against unreasonable searches and seizures
must be deemed absolute as nothing is closer to a man's soul than the serenity of his
privacy and the assurance of his personal security. Any interference allowable can only
be for the best causes and reasons.119 (emphases supplied)
While the right to life under Article III, Section 1 120 guarantees essentially the right to be alive121 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 man's existence."122 In a broad
sense, the right to security of person "emanates in a person's 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."123
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.124 It is the "right to security of person" as the word "security" itself means "freedom from
fear."125 Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil
and Political Rights (ICCPR) also provides for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law. (emphasis
supplied)
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, acause of action. Fear caused by the same stimulus can range from
being baseless to well-founded 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.127
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, one's body
cannot be searched or invaded without a search warrant. 128 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.129
Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to
vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating
information, it constitutes an invasion of both bodily and psychological integrity as the dignity of
the human person includes the exercise of free will. Article III, Section 12 of the 1987 Constitution
more specifically proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the
free will shall be used against him (any person under investigation for the commission of
an offense). Secret detention places, solitary, incommunicado or other similar forms of
detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in
the sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under
investigation for the commission of an offense. Victims of enforced disappearances who are not
even under such investigation should all the more be protected from these degradations.
An overture to an interpretation of the right to security of person as a right against torture was
made by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In
this case, the claimant, who was lawfully detained, alleged that the state authorities had physically
abused him in prison, thereby violating his right to security of person. Article 5(1) of the European
Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following cases and in accordance with
a procedure prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that
"(n)o one shall be subjected to torture or to inhuman or degrading treatment or punishment."
10
Although the application failed on the facts as the alleged ill-treatment was found baseless, the
ECHR relied heavily on the concept of security in holding, viz:

...the applicant did not bring his allegations to the attention of domestic authorities at the
time when they could reasonably have been expected to take measures in order to
ensure his security and to investigate the circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with the
procedural obligation under Art.3 to conduct an effective investigation into his
allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has also made a
statement that the protection of the bodily integrity of women may also be related to the right to
security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by women of human
rights and fundamental freedoms under general international law or under specific
human rights conventions is discrimination within the meaning of article 1 of the
Convention (on the Elimination of All Forms of Discrimination Against Women). These
rights and freedoms include . . . the right to liberty and security of person.132
Third, the right to security of person is a guarantee of protection of one's 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.133 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. The Inter-American Court of Human
Rights stressed the importance of investigation in the Velasquez Rodriguez Case,134 viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.135
This third sense of the right to security of person as a guarantee of government protection has
been interpreted by the United Nations' Human Rights Committee 136 in not a few cases involving
Article 9137 of the ICCPR. While the right to security of person appears in conjunction with the right
to liberty under Article 9, the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily be a deprivation of
liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,138 a case
involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose
social views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its location as a
part of paragraph one could lead to the view that the right to security arises only in the
context of arrest and detention. The travaux prparatoires indicate that the discussions
of the first sentence did indeed focus on matters dealt with in the other provisions of
article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to
life, the right to liberty and the right to security of the person. These elements have been
dealt with in separate clauses in the Covenant. Although in the Covenant the only
reference to the right of security of person is to be found in article 9, there is no
evidence that it was intended to narrow the concept of the right to security only to

situations of formal deprivation of liberty. At the same time, States parties have
undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that,
as a matter of law, States can ignore known threats to the life of persons under their
jurisdiction, just because that he or she is not arrested or otherwise detained. States
parties are under an obligation to take reasonable and appropriate measures to protect
them. An interpretation of article 9 which would allow a State party to ignore threats to
the personal security of non-detained persons within its jurisdiction would render totally
ineffective the guarantees of the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and
prisoner of conscience who continued to be intimidated, harassed, and restricted in his
movements following his release from detention. In a catena of cases, the ruling of the Committee
was of a similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation
and persecution of opponents of the ruling party in that state;Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias
v. Angola,143 involving the murder of the complainant's partner and the harassment he
(complainant) suffered because of his investigation of the murder; and Chongwe v.
Zambia,144involving an assassination attempt on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not
only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty. 145 The ECHR interpreted the "right to security of
person" under Article 5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by
state authorities and had not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrariness... Having
assumed control over that individual it is incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities
to take effective measures to safeguard against the risk of disappearance and to conduct
a prompt effective investigation into an arguable claim that a person has been taken into
custody and has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar, we now
determine whether there is a continuing violation of respondents' right to security.
First, the violation of the right to security as freedom from threat to respondents' life, liberty and
security.
While respondents were detained, they were threatened that if they escaped, their families,
including them, would be killed. In Raymond's narration, he was tortured and poured with gasoline
after he was caught the first time he attempted to escape from Fort Magsaysay. A call from a
certain "Mam," who wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be killed has come to
pass. It should be stressed that they are now free from captivity not because they were released by
virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards
the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in
Limay, Bataan, respondents' captors even told them that they were still deciding whether they
should be executed. Respondent Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw
11
pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.148

The possibility of respondents being executed stared them in the eye while they were in detention.
With their escape, this continuing threat to their life is apparent, moreso now that they have
surfaced and implicated specific officers in the military not only in their own abduction and torture,
but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen
Empeo, and Manuel Merino, among others.
Understandably, since their escape, respondents have been under concealment and protection by
private citizens because of the threat to their life, liberty and security. The threat vitiates their free
will as they are forced to limit their movements or activities. 149 Precisely because respondents are
being shielded from the perpetrators of their abduction, they cannot be expected to show evidence
of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and
security. Nonetheless, the circumstances of respondents' abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent threat that they will again be abducted,
tortured, and this time, even executed. These constitute threats to their liberty, security, and life,
actionable through a petition for a writ of Amparo.
Next, the violation of the right to security as protection by the government. Apart from the failure of
military elements to provide protection to respondents by themselves perpetrating the abduction,
detention, and torture, they also miserably failed in conducting an effective investigation of
respondents' abduction as revealed by the testimony and investigation report of petitioners' own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He
merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians
whom he met in the investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did not call for other witnesses to
test the alibis given by the six implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive
dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the
AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court
against any members of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and
securing statements from them; determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons involved in the death or
disappearance; and bringing of the suspected offenders before a competent court. 150 Petitioner
AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he immediately caused
to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of
the alleged disappearance and the recent reappearance of the respondents, and undertook to
provide results of the investigations to respondents.151 To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which they now seek through
the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion that there is a
violation of respondents' right to security as a guarantee of protection by the government.
In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective investigation and protection on
the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.

First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file with the court.
Second, that petitioners confirm in writing the present places of official assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records
and charts, and reports of any treatment given or recommended and medicines prescribed, if any,
to the Manalo brothers, to include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production order sought by
respondents partakes of the characteristics of a search warrant. Thus, they claim that the
requisites for the issuance of a search warrant must be complied with prior to the grant of the
production order, namely: (1) the application must be under oath or affirmation; (2) the search
warrant must particularly describe the place to be searched and the things to be seized; (3) there
exists probable cause with one specific offense; and (4) the probable cause must be personally
determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce.152 In the case at bar, however, petitioners point out that other than the
bare, self-serving and vague allegations made by respondent Raymond Manalo in his unverified
declaration and affidavit, the documents respondents seek to be produced are only mentioned
generally by name, with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case as the
involvement of petitioners in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order under the Amparo Rule should not
be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand of the people
such as respondents.
Instead, the Amparo production order may be likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which an
action is pending may (a) order any party to produce and permit the inspection
and copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters, photographs,
objects or tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his possession,
custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of
Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the
books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the
subpoena on the ground that it violated the search and seizure clause. The Court struck down the
argument and held that the subpoenapertained to a civil procedure that "cannot be identified or
confused with unreasonable searches prohibited by the Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the concerned unit relative to the circumstances
of the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought
for as soon as the same has been furnished Higher headquarters."
With respect to the second and third reliefs, petitioners assert that the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the
12
submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in
the resolution of the petition for a writ ofAmparo. They add that it will unnecessarily compromise

and jeopardize the exercise of official functions and duties of military officers and even unwittingly
and unnecessarily expose them to threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind
their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their
areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers
can be served with notices and court processes in relation to any investigation and action for
violation of the respondents' rights. The list of medical personnel is also relevant in securing
information to create the medical history of respondents and make appropriate medical
interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed
out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool
that gives voice to preys of silent guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of
Appeals dated December 26, 2007 is affirmed.
SO ORDERED.

EN BANC

REVEREND FATHER ROBERT P. REYES,

Petitioner,

G. R. No. 182161
Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
COURT OF APPEALS, SECRETARY RAUL M. GONZALEZ, IN HIS NACHURA,
CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF JUSTICE, AND LEONARDO-DE
COMMISSIONER MARCELINO C. LIBANAN, IN HIS CAPACITY AS THE CASTRO,
COMMISSIONER OF THE BUREAU OF IMMIGRATION,
BRION,
Respon
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.
- versus -

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 2 nd 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.

DECISION
LEONARDO-DE CASTRO, J.:
For resolution is the petition for review under Rule 45 of the Rules of Court, assailing the February
4, 2008 Decision[1] 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
13
Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and

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 1998 [2] and No.
18 Series of 2007[3] 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. 073126 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 amparoproceeding.
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. [4]
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 Reconsideration[5] thereon was also denied in the assailed
Resolution[6] 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).
14
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.
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.
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. [7]
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
whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which
places such persons outside the protection of law.[12]

In Tapuz v. Del Rosario,

amparo as follows:

[13]

the Court laid down the basic principle regarding the rule on the writ of

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:

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]

(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

15
thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.

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.
xxx
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 well-founded 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.
xxx
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.

16

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.
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 RTCMakati a motion to lift the DOJs HDO, as his co-accused 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. Mogul[25] 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 co-existence 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).
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.

Republic of the Philippines

Supreme Court
Manila

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND G.R. No. 193160
HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ,
Present:
POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS,
BGEN. REMEGIO M. DE VERA, 1ST LT. RYAN S. MATUTINA, LT. COL. CORONA, C.J.,
LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and CARPIO,
VICENTE A. CALLAGAN,
VELASCO, JR.,
Petitioners,
LEONARDO-DE
CASTRO,*
BRION,
- versus PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
NORIEL H. RODRIGUEZ,
VILLARAMA, JR.,
Respondent.
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, J
J.

EN BANC
Promulgated:
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS G.R.
DATA IN FAVOR OF NORIEL H. RODRIGUEZ,
No. 191805

November 15, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

NORIEL H. RODRIGUEZ,
Petitioner,
- versus -

GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME

VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT.
AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA,
an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under
the name HARRY, ANTONIO CRUZ, ALDWIN BONG PASICOLAN and VINCENT
CALLAGAN,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - -x

17

DECISION
SERENO, J.:
Before this Court are two consolidated cases, namely, (1) Petition for Partial Review on Certiorari
dated 20 April 2010 (G.R. No. 191805), and (2) Petition for Review on Certiorari dated 19 August
2010 (G.R. No. 193160).[1] Both Petitions assail the 12 April 2010 Decision of the Court of Appeals,
the dispositive portion of which reads:
WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED.
Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z. Ochoa, PCSupt.
Ameto G. Tolentino, PSSupt. Jude W. Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina
and 1Lt. Ryan S. Matutina, or their replacements in their official posts if they have already vacated
the same, are ORDERED to furnish this Court within five (5) days from notice of this decision,
official or unofficial reports pertaining to petitioner covering but not limited to intelligence
reports, operation reports and provost marshal reports prior to, during and subsequent to
September 6, 2009 made by the 5th Infantry Division, Philippine Army, its branches and
subsidiaries, including the 17th Infantry Battalion, Philippine Army.
The above-named respondents are also DIRECTED to refrain from using the said reports in any
transaction or operation of the military. Necessarily, the afore-named respondents areORDERED to
expunge from the records of the military all documents having any reference to petitioner.

Likewise, the afore-named respondents, as well as respondents Police Director General Jesus Ame
Versoza, Antonio Cruz, Aldwin Pasicolan and Vicente Callagan are DIRECTED to ensure that no
further violation of petitioners rights to life, liberty and security is committed against the latter or
any member of his family.
The petition is DISMISSED with respect to President Gloria Macapagal-Arroyo on account of her
presidential immunity from suit. Similarly, the petition is DISMISSED with respect to respondents
Calog and George Palacpac or Harry for lack of merit.
Petitioners prayer for issuance of a temporary protection order and inspection order is DENIED.
Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in G.R. No. 193160.
He is a member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization
affiliated with Kilusang Magbubukid ng Pilipinas (KMP).
On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police Director General
(PDG.) Jesus A. Verzosa, Police Senior Superintendent (P/SSupt.) Jude W. Santos, Brigadier
General (Brig. Gen.) Remegio M. De Vera, First Lieutenant (1 st Lt.) Ryan S. Matutina, Lieutenant
Colonel (Lt. Col.) Laurence E. Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and
Vicente A. Callagan (Callagan) are respondents in G.R. No. 191805 and petitioners in G.R. No.
193160. At the time the events relevant to the present Petitions occurred, former President Arroyo
was the President of the Philippines. PDG. Verzosa, P/SSupt. Santos, Brig. Gen. De Vera, 1 st Lt.
Matutina and Lt. Col. Mina were officers of the Philippine National Police (PNP). Cruz, Pasicolan
and Callagan were Special Investigators of the Commission on Human Rights (CHR) in Region II.
Antecedent Facts
Rodriguez claims that the military tagged KMP as an enemy of the State under the Oplan Bantay
Laya, making its members targets of extrajudicial killings and enforced disappearances. [2]
On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel, Cagayan
onboard a tricycle driven by Hermie Antonio Carlos (Carlos), when four men forcibly took him and
forced him into a car. Inside the vehicle were several men in civilian clothes, one of whom was
holding a .45 caliber pistol. Subsequently, three more persons arrived, and one of them carried a
gun at his side. Two men boarded the car, while the others rode on the tricycle.[3]
The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his back and
started punching him. The car travelled towards the direction of Sta. Teresita-Mission and moved
around the area until about 2:00 a.m. During the drive, the men forced Rodriguez to confess to
being a member of the New Peoples Army (NPA), but he remained silent. The car then entered a
place that appeared to be a military camp. There were soldiers all over the area, and there was a
banner with the word Bravo written on it. Rodriguez later on learned that the camp belonged to
the 17th Infantry Battalion of the Philippine Army.[4]
Rodriguez was brought to a canteen, where six men confronted him, ordering him to confess to his
membership in the NPA. Due to his exhaustion, he unintentionally fell asleep. As a result, the men
hit him on the head to wake him up. After the interrogation, two of the men guarded him, but did
not allow him to sleep.[5]
In the morning of 7 September 2009, the men tied the hands of Rodriguez, blindfolded him
and made him board a vehicle. While they were in transit, the soldiers repeatedly hit him in the
head and threatened to kill him. When the car stopped after about ten minutes, the soldiers
brought him to a room, removed his blindfold, and forced him to confess to being a member of the
NPA. During the interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was
detained inside the room for the entire day. The soldiers tied his stomach to a papag, and gave him
18
rice and viand. Fearing that the food might be poisoned, he refused to eat anything. He slept on
thepapag while being tied to it at the waist.[6]

On 8 September 2009, the men forced Rodriguez into a vehicle, which brought them to Bugey
and Mission. While passing houses along the way, the men asked him if his contacts lived in those
houses. When he failed to answer, a soldier pointed a gun to his head and threatened to kill him
and his family. Because he remained silent, the soldiers beat him and tied him up. The vehicle
returned to the military camp at past 1:00 p.m., where he was again subjected to tactical
interrogation about the location of an NPA camp and his alleged NPA comrades. He suffered
incessant mauling every time he failed to answer.[7]
At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made him their
guide on their way to an NPA camp in Birao. Accompanying them was a man named Harry, who,
according to the soldiers, was an NPA member who had surrendered to the military. Harry pointed
to Rodriguez and called him a member of the NPA. He also heard Harry tell the soldiers that the
latter knew the area well and was acquainted with a man named Elvis. The soldiers loaded
Rodriguez into a military truck and drove to Tabbak, Bugey. While he was walking with the soldiers,
he noticed a soldier with the name tag Matutina, who appeared to be an official because the other
soldiers addressed him as sir.[8]
Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Elvis
and told him that Rodriguez had identified his whereabouts location. The soldiers forced Rodriguez
to convince Elvis to disclose the location of the NPA camp. They brought the two to the mountains,
where both were threatened with death. When the soldiers punched Elvis, Rodriguez told them that
he would reveal the location of the NPA camp if they let Elvis go home. They finally released Elvis
around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights in the
mountains.[9]
On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify the
location of the NPA camp. He was blindfolded and warned to get ready because they would beat
him up again in the military camp. Upon arrival therein, they brought him to the same room where
he had first been detained, and two soldiers mauled him again. They repeatedly punched and
kicked him. In the afternoon, they let him rest and gave him an Alaxan tablet. Thereafter, he fell
asleep due to over-fatigue and extreme body pain. The soldiers, however, hit him again. After
giving him a pen and a piece of paper, they ordered him to write down his request for rice from the
people. When he refused, the soldiers maltreated him once more.[10]
On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring that he
had surrendered in an encounter in Cumao, and
that the soldiers did not shoot him because he became a military asset in May. When he refused to
sign the document, he received another beating. Thus, he was compelled to sign, but did so using
a different signature to show that he was merely coerced.[11]
The soldiers showed Rodriguez photographs of different persons and asked him if he knew
the men appearing therein. When he told them that he did not recognize the individuals on the
photos, the soldiers instructed him to write down the name of his school and organization, but he
declined. The soldiers then wrote something on the paper, making it appear that he was the one
who had written it, and forced him to sign the document. The soldiers took photographs of him
while he was signing. Afterwards, the soldiers forced him down, held his hands, and sat on his
feet. He did not only receive another beating, but was also electrocuted. The torture lasted for
about an hour.[12]
At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military operation in
the mountains, where he saw Matutina again. They all spent the night there.[13]
In the morning of 16 September 2009, the soldiers and Rodriguez started their descent. When
they stopped, the soldiers took his photograph and asked him to name the location of the NPA
camp. Thereafter, they all returned to the military camp. The soldiers asked him to take a bath and

wear a white polo shirt handed to him. He was then brought to the Enrile Medical Center, where Dr.
Juliet Ramil (Dr. Ramil) examined him.[14] When the doctor asked him why he had bruises and
contusions, he lied and told her that he sustained them when he slipped, as he noticed a soldier
observing him. Dr. Ramils medical certificate indicated that he suffered from four hematomas in
the epigastric area, chest and sternum.[15]
Back at the camp, the soldiers let Rodriguez eat with several military officials and took
pictures of him while he was eating with them. They also asked him to point to a map in front of
[16]
him and again took his photograph. Later, they told him that he would finally see his mother.
Rodriguez was brought to another military camp, where he was ordered to sign a piece of
paper stating that he was a surrenderee and was never beaten up. Scared and desperate to end his
ordeal, he signed the paper and was warned not to report anything to the media.[17]
Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take a
bath. They gave him a pair of jeans and perfume. While he was having breakfast, the two soldiers
guarding him repeatedly reminded him not to disclose to the media his experience in the camp and
to say instead that he had surrendered to the military. [18]
At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived surrounded by
several men. His mother, Wilma Rodriguez (Wilma), talked to Lt. Col. Mina. Rodriguez heard one of
the soldiers tell Wilma that he had surrendered to the military and had long been its asset. His
brother, Rodel Rodriguez (Rodel), informed him that the men accompanying them were from the
CHR, namely, Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift up
his shirt, and one of the CHR employees took photographs of his bruises.[19]
A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two weeks to
supposedly prevent the NPA from taking revenge on him. Respondent Calog also approached
Rodriguez and Rodel and asked them to become military assets. Rodel refused and insisted that
they take Rodriguez home to Manila. Again, the soldiers reminded them to refrain from facing the
media. The soldiers also told them that the latter will be taken to the Tuguegarao Airport and
guarded until they reached home.[20]
Rodriguez and his family missed their flight. Subsequently, the soldiers accompanied them
to the CHR office, where Rodriguez was made to sign an affidavit stating that he was neither
abducted nor tortured. Afraid and desperate to return home, he was forced to sign the document.
Cruz advised him not to file a case against his abductors because they had already freed him. The
CHR personnel then led him and his family to the CHR Toyota Tamaraw FX service vehicle. He
noticed that a vehicle with soldiers on board followed them.[21]
The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the vehicle. Upon
reaching a mall in Isabela, Rodriguez, his family, Callagan, 1 st Lt. Matutina and two other soldiers
transferred to an orange Toyota Revo with plate number WTG 579. Upon reaching the boundary of
Nueva Ecija and Nueva Viscaya, 1st Lt. Matutina alighted and called Rodriguez to a diner. A certain
Alan approached Rodriguez and handed him a cellphone with a SIM card. The latter and his family
then left and resumed their journey back home.[22]
Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September 2010. Callagan
and two soldiers went inside the house, and took photographs and a video footage thereof. The
soldiers explained that the photos and videos would serve as evidence of the fact that Rodriguez
and his family were able to arrive home safely. Despite Rodriguezs efforts to confront the soldiers
about their acts, they still continued and only left thirty minutes later.[23]
On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the International Committee
on Torture and Rehabilitation, examined Rodriguez and issued a Medical Certificate stating that the
latter had been a victim of torture.[24]
Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel Robles,
19
noticed that several suspicious-looking men followed them at the Metro Rail Transit (MRT), in the
streets and on a jeepney.[25]

On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of Amparo and
Petition for the Writ of Habeas Data with Prayers for Protection Orders, Inspection of Place, and
Production of Documents and Personal Properties dated 2 December 2009. [26] The petition was filed
against former President Arroyo, Gen. Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj.
Gen.) Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1 st Lt. Matutina, Calog,
George Palacpac (Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the following
reliefs:
a.
The issuance of the writ of amparo ordering respondents to desist from violating
Rodriguezs right to life, liberty and security.
b.
The issuance of an order to enjoin respondents from doing harm to or approaching
Rodriguez, his family and his witnesses.
c.
Allowing the inspection of the detention areas of the Headquarters of Bravo Co.,
5th Infantry Division, Maguing, Gonzaga, Cagayan and another place near where Rodriguez was
brought.
d.
Ordering respondents to produce documents submitted to them regarding any report
on Rodriguez, including operation reports and

provost marshall reports of the 5th Infantry Division, the Special Operations Group of the Armed
Forces of the Philippines (AFP), prior to, on and subsequent to 6 September 2009.
e.
Ordering records pertinent or in any way connected to Rodriguez, which are in the
custody of respondents, to be expunged, disabused, and forever barred from being used.[27]
On 15 December 2009, we granted the respective writs after finding that the petition sufficiently
alleged that Rodriguez had been abducted, tortured and later released by members of the
17th Infantry Battalion of the Philippine Army.[28] We likewise ordered respondents therein to file a
verified return on the writs on or before 22 December 2009 and to comment on the petition on or
before 4 January 2010.[29] Finally, we directed the Court of Appeals to hear the petition on 4 January
2010 and decide on the case within 10 days after its submission for decision.[30]
During the initial hearing on 4 January 2010, the Court of Appeals required the parties to submit
affidavits and other pieces of evidence at the next scheduled hearing on 27 January 2010.[31]
On 8 January 2010, respondents therein, through the Office of the Solicitor General (OSG),
filed their Return of the Writ, which was likewise considered as their comment on the petition. [32] In
their Return, respondents therein alleged that Rodriguez had surrendered to the military on 28 May
2009 after he had been put under surveillance and identified as Ka Pepito by former rebels.
[33]
According to his military handlers, Corporal (Cpl.) Rodel
B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA operating in
Cagayan Valley.[34] Wanting to bolt from the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he
would help the military in exchange for his protection.[35]
Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath of Loyalty and
an Agents Agreement/Contract, showing his willingness to return to society and become a military
asset.[36] Since then, he acted as a double agent, returning to the NPA to gather information.
[37]
However, he feared that his NPA comrades were beginning to suspect him of being an infiltrator.
[38]
Thus, with his knowledge and consent, the soldiers planned to stage a sham abduction to erase
any suspicion about him being a double agent. [39] Hence, the abduction subject of the instant
petition was conducted.[40]

Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ dated 15
January 2010,[41] alleging that they had exercised extraordinary diligence in locating Rodriguez,
facilitating his safe turnover to his family and securing their journey back home to Manila. More
specifically, they alleged that, on 16 September 2009, after Wilma sought their assistance in
ascertaining the whereabouts of her son, Cruz made phone calls to the military and law
enforcement agencies to determine his location. [42]Cruz was able to speak with Lt. Col. Mina, who
confirmed that Rodriguez was in their custody. [43] This information was transmitted to CHR
Regional Director Atty. Jimmy P. Baliga. He, in turn, ordered Cruz, Pasicolan and Callagan to
accompany Wilma to the 17th Infantry Division.[44]
When the CHR officers, along with Wilma and Rodel, arrived at the 17 th Infantry Battalion at Masin,
Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged
that Rodriguez had become one of their assets, as evidenced by the Summary on the Surrender of
Noriel Rodriguez and the latters Contract as Agent.[45] The CHR officers observed his casual and
cordial demeanor with the soldiers.[46] In any case, Cruz asked him to raise his shirt to see if he had
been subjected to any maltreatment. Cruz and Pasicolan did not see any traces of
torture. Thereafter, Rodriguez was released to his family, and they were made to sign a
certification to this effect. During the signing of the document, herein CHR officers did not witness
any threat, intimidation or force employed against Rodriguez or his family. [47]
During their journey back to the home of Rodriguez, the CHR officers observed that he was very
much at ease with his military escorts, especially with 1 st Lt. Matutina.[48] Neither was there any
force or intimidation when the soldiers took pictures of his house, as the taking of photographs
was performed with Wilmas consent.
Has not presented any adequate and competent evidence, must less substantial evidence, to
establish his claim that petitioners have violated, are violating or threatening with violation his
rights to life, liberty and security, as well as his right to privacy; hence, he is not entitled to the
privilege of the writs of amparo and habeas data and their corresponding interim reliefs (i.e.,
inspection order, production order and temporary protection order) provided under the Rule on the
Writ of Amparo and the Rule on the Writ of Habeas Data.[56]
In ascertaining whether the Court of Appeals committed reversible error in issuing its assailed
Decision and Resolution, the following issues must be resolved:
I.
Whether the interim reliefs prayed for by Rodriguez may be granted after the writs
of amparo and habeas data have already been issued in his favor.
II.
Whether former President Arroyo should be dropped as a respondent on the basis of
the presidential immunity from suit.
III.
Whether the doctrine of command responsibility can be used in amparo and habeas data
cases.
IV.
Whether the rights to life, liberty and property of Rodriguez were violated or threatened
by respondents in G.R. No. 191805.
At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to
ensure the protection of the peoples rights to life, liberty and security. [57] The rules on these writs
were issued in light of the alarming prevalence of extrajudicial killings and enforced
disappearances.[58] The Rule on the Writ ofAmparo took effect on 24 October 2007,[59] and the Rule
on the Writ of Habeas Data on 2 February 2008.[60]
The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief,
as it partakes of a summary proceeding that requires only substantial evidence to make the
20
appropriate interim and permanent reliefs available to the petitioner. [61] It is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages

requiring preponderance of evidence, or administrative responsibility requiring substantial

evidence that will require full and exhaustive proceedings. [62] Rather, it serves both preventive and
curative roles in addressing the problem of extrajudicial killings and enforced disappearances. [63] It
is preventive in that it breaks the expectation of impunity in the commission of these offenses, and
it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to
subsequent investigation and action.[64]
Meanwhile, the writ of habeas data provides a judicial remedy to protect a persons right to control
information regarding oneself, particularly in instances where such information is being collected
through unlawful means in order to achieve unlawful ends. [65] As an independent and summary
remedy to protect the right to privacy especially the right to informational privacy [66] the
proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil
or administrative culpability. If the allegations in the petition are proven through substantial
evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act
complained of; or (c) in case the database or information contains erroneous data or information,
order its deletion, destruction or rectification.[67]

First issue: Grant of interim reliefs

In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary protection
order. It must be underscored that this interim relief is only available before final
judgment. Section 14 of the Rule on the Writ of Amparo clearly provides:
Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court, justice or
judge may grant any of the following reliefs:
Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order
that the petitioner or the aggrieved party and any member of the immediate family be protected in a
government agency or by an accredited person or private institution capable of keeping and
securing their safety. If the petitioner is an organization, association or institution referred to in
Section 3(c) of this Rule, the protection may be extended to the officers involved.
The Supreme Court shall accredit the persons and private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and any member of the immediate family, in
accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply with the rules and conditions that
may be imposed by the court, justice or judge.
(a)
Inspection Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a designated land or other property, to
permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or
any relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or
whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the merit
of the opposition.
The movant must show that the inspection order is necessary to establish the right of the
aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person or persons authorized to make the inspection and
the date, time, place and manner of making the inspection and may prescribe other conditions to
protect the constitutional rights of all parties. The order shall expire five (5) days after the date of
its issuance, unless extended for justifiable reasons.
(b)
Production Order. The court, justice, or judge, upon verified motion and after due
hearing, may order any person in possession, custody or control of any designated documents,
papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or
electronic form, which constitute or contain evidence relevant to the petition or the return, to
produce and permit their inspection, copying or photographing by or on behalf of the movant.
The motion may be opposed on the ground of national security or of the privileged nature of the
information, in which case the court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all
the parties.
(c)
Witness Protection Order. The court, justice or judge, upon motion or motu proprio,
may refer the witnesses to the Department of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other government agencies, or to
accredited persons or private institutions capable of keeping and securing their safety. (Emphasis
supplied)
We held in Yano v. Sanchez[68] that [t]hese provisional reliefs are intended to assist the
court before it arrives at a judicious determination of the amparo petition. Being interim reliefs,
they can only be granted before a final adjudication of the case is made. In any case, it must be
underscored that the privilege of the writ of amparo, once granted, necessarily entails the
protection of the aggrieved party. Thus, since we grant petitioner the privilege of the writ
of amparo, there is no need to issue a temporary protection order independently of the former. The
order restricting respondents from going near Rodriguez is subsumed under the privilege of the
writ.

of imposing the appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have participated in whatever
way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court
shall craft, among them, the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined
above; or who are imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the
issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so
that the life of the victim is preserved and his liberty and security are restored. [70] (Emphasis
supplied.)
Thus, in the case at bar, the Court of Appeals, in its Decision [71] found respondents in G.R. No.
191805 with the exception of Calog, Palacpac or Harry to be accountable for the violations of
Rodriguezs right to life, liberty and security committed by the 17 th Infantry Battalion, 5th Infantry
Division of the Philippine Army. [72] The Court of Appeals dismissed the petition with respect to
former President Arroyo on account of her presidential immunity from suit. Rodriguez contends,
though, that she should remain a respondent in this case to enable the courts to determine
whether she is responsible or accountable therefor. In this regard, it must be clarified that the
Court of Appeals rationale for dropping her from the list of respondents no longer stands since her
presidential immunity is limited only to her incumbency.
In Estrada v. Desierto,[73] we clarified the doctrine that a non-sitting President does not enjoy
immunity from suit, even for acts committed during the latters tenure. We emphasize our ruling
therein that courts should look with disfavor upon the presidential privilege of immunity, especially
when it impedes the search for truth or impairs the vindication of a right, to wit:
We reject [Estradas] argument that he cannot be prosecuted for the reason that he must first be
convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was
aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency.
Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the
Impeachment Court is Functus Officio. Since the Impeachment Court is now functus officio, it is
untenable for petitioner to demand that he should first be impeached and then convicted before he
can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a
submission has nothing to commend itself for it will place him in a better situation than a nonsitting President who has not been subjected to impeachment proceedings and yet can be the
object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it
clear that when impeachment proceedings have become moot due to the resignation of the
President, the proper criminal and civil cases may already be filed against him, viz:
xxx

Second issue: Presidential immunity from suit

It bears stressing that since there is no determination of administrative, civil or criminal liability
in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or
accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v.
Tagitis:[69]

21
It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the enforced disappearance for purposes

xxx

xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President,
for example, and the President resigns before judgment of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts.
This is in accord with our ruling in In Re: Saturnino Bermudez that incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and
tenure but not beyond. xxx

immunity covers his entire term of office or until June 30, 2004 disregards the reality that he has
relinquished the presidency and there is now a new de jurePresident.
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from
suit during his term of office. He buttresses his position with the deliberations of the Constitutional
Commission, viz:
Mr. Suarez. Thank you.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the alleged mantle of immunity
of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President
to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions.
The rule is that unlawful acts of public officials are not acts of the State and the officer who acts
illegally is not acting as such but stands in the same footing as any other trespasser.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee did
very well in striking out this second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not agree to a
restoration of at least the first sentence that the president shall be immune from suit during his
tenure, considering that if we do not provide him that kind of an immunity, he might be spending all
his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas:

Indeed, a critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or impairs the
vindication of a right. In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting
President, was subpoenaed to produce certain recordings and documents relating to his
conversations with aids and advisers. Seven advisers of President Nixon's associates were facing
charges of conspiracy to obstruct justice and other offenses which were committed in a burglary
of the Democratic National Headquarters in Washington's Watergate Hotel during the 1972
presidential campaign. President Nixon himself was named an unindicted co-conspirator.
President Nixon moved to quash the subpoena on the ground, among others, that the President
was not subject to judicial process and that he should first be impeached and removed from office
before he could be made amenable to judicial proceedings. The claim was rejected by the US
Supreme Court. It concluded that when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair
administration of criminal justice. In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court
further held that the immunity of the President from civil damages covers only official acts.
Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v.
Jones where it held that the US President's immunity from suits for money damages arising out of
their official acts is inapplicable to unofficial conduct.[74] (Emphasis supplied)
Further, in our Resolution in Estrada v. Desierto,[75] we reiterated that the presidential immunity
from suit exists only in concurrence with the presidents incumbency:
Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His
arguments are merely recycled and we need not prolong the longevity of the debate on the subject.
In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its
bends and turns up to the present time. We held that given the intent of the 1987 Constitution to
breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting
President, cannot claim executive immunity for his alleged criminal acts committed while a sitting
President. Petitioner's rehashed arguments including their thinly disguised new spins are based
22
on the rejected contention that he is still President, albeit, a President on leave. His stance that his

The reason for the omission is that we consider it understood in present jurisprudence that
during his tenure he is immune from suit.
Mr. Suarez:
So there is no need to express it here.
Fr. Bernas:
There is no need. It was that way before. The only innovation made by the 1973 Constitution
was to make that explicit and to add other things.
Mr. Suarez:
On the understanding, I will not press for any more query, madam President.
I thank the Commissioner for the clarification.
Petitioner, however, fails to distinguish between term and tenure. The term means the time during
which the officer may claim to hold the office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure represents the term during which the
incumbent actually holds office. The tenure may be shorter than the term for reasons within or
beyond the power of the incumbent. From the deliberations, the intent of the framers is clear that
the immunity of the president from suit is concurrent only with his tenure and not his term. [76]
(Emphasis supplied)
Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo cannot
use the presidential immunity from suit to shield herself from judicial scrutiny that would assess
whether, within the context of amparo proceedings, she was responsible or accountable for the
abduction of Rodriguez.
Third issue: Command responsibility in amparo proceedings

To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that

the doctrine of command responsibility may be applied. As we explained in Rubrico v. Arroyo,
[77]
command responsibility pertains to the responsibility of commanders for crimes committed by
subordinate members of the armed forces or other persons subject to their control in international
wars or domestic conflict.[78] Although originally used for ascertaining criminal complicity, the
command responsibility doctrine has also found application in civil cases for human rights
abuses.[79] In the United States, for example, command responsibility was used in Ford v.
Garcia and Romagoza v. Garcia civil actions filed under the Alien Tort Claims Act and the Torture
Victim Protection Act.[80] This development in the use of command responsibility in civil
proceedings shows that the application of this doctrine has been liberally extended even to cases
not criminal in nature. Thus, it is our view that command responsibility may likewise find
application in proceedings seeking the privilege of the writ of amparo. As we held in Rubrico:
It may plausibly be contended that command responsibility, as legal basis to hold military/police
commanders liable for extra-legal killings, enforced disappearances, or threats, may be made
applicable to this jurisdiction on the theory that the command responsibility doctrine now
constitutes a principle of international law or customary international law in accordance with the
incorporation clause of the Constitution.

If command responsibility were to be invoked and applied to these proceedings, it should, at most,
be only to determine the author who, at the first instance, is accountable for, and has the duty to
address, the disappearance and harassments complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the premises to protect rights covered by the
writ of amparo. As intimated earlier, however, the determination should not be pursued to fix
criminal liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there be any.
[81]
(Emphasis supplied.)
Precisely in the case at bar, the doctrine of command responsibility may be used to determine
whether respondents are accountable for and have the duty to address the abduction of Rodriguez
in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing
precludes this Court from applying the doctrine of command responsibility in amparo proceedings
to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances.
In this regard, the Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting,
thus:
That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or
administrative liability should not abate the applicability of the doctrine of command
responsibility. Taking Secretary of National Defense v. Manalo and Razon v. Tagitis in proper
context, they do not preclude the application of the doctrine of command responsibility to Amparo
cases.
Manalo was actually emphatic on the importance of the right to security of person and its
contemporary signification as a guarantee of protection of ones rights by the government. It
further stated that 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
23
justice.

Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of
the doctrine of command responsibility:
Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were
remiss in their duties when the government completely failed to exercise the extraordinary
diligence that the Amparo Rule requires. We hold these organizations accountable through their
incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it
that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the
enforced disappearance of Tagitis.
Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility
doctrine to Amparo cases. The short title of the law is the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Obviously, it
should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the
crimes covered. Such limited treatment, however, is merely in keeping with the statutes purpose
and not intended to rule out the application of the doctrine of command responsibility to other
appropriate cases.
Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police
officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit
adoption of the doctrine of command responsibility in the present case will only bring Manalo and
Tagitis to their logical conclusion.
In fine, I submit that the Court should take this opportunity to state what the law ought to be if it
truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and
enforced disappearances or threats thereof. While there is a genuine dearth of evidence to hold
respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the
command responsibility doctrine, the ponencias hesitant application of the doctrine itself is
replete with implications abhorrent to the rationale behind the Rule on the Writ of Amparo. [82]
(Emphasis supplied.)
This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,[83] likewise
penned by Justice Carpio-Morales, wherein this Court ruled:
Rubrico categorically denies the application of command responsibility in amparo cases to
determine criminal liability. The Court maintains its adherence to this pronouncement as far
as amparo cases are concerned.
Rubrico, however, recognizes a preliminary yet limited application of command responsibility
in amparo cases to instances of determining the responsible or accountableindividuals or entities
that are duty-bound to abate any transgression on the life, liberty or security of the aggrieved
party.
If command responsibility were to be invoked and applied to these proceedings, it should, at most,
be only to determine the author who, at the first instance, is accountable for, and has the duty to
address, the disappearance and harassments complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the premises to protect rights covered by the
writ of amparo. As intimated earlier, however, the determination should not be pursued to fix
criminal liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there be any.

In other words, command responsibility may be loosely applied in amparo cases in order to
identify those accountable individuals that have the power to effectively implement whatever
processes an amparo court would issue. In such application, the amparo court does not impute
criminal responsibility but merely pinpoint the superiors it considers to be in the best position to
protect the rights of the aggrieved party.
Such identification of the responsible and accountable superiors may well be a preliminary
determination of criminal liability which, of course, is still subject to further investigation by the
appropriate government agency. (Emphasis supplied.)
As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors
have been established by substantial evidence to have participatedin whatever way, by action or
omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that
should be addressed to those (i) who exhibited involvement in the enforced disappearance without
bringing the level of their complicity to the level of responsibility defined above; or (ii) who are
imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance. Thus, although there is no
determination of criminal, civil or administrative liabilities, the doctrine of command responsibility
may nevertheless be applied to ascertain responsibility and accountability within these foregoing
definitions.
a.
Command responsibility of the President
Having established the applicability of the doctrine of command responsibility
in amparo proceedings, it must now be resolved whether the president, as commander-in-chief of
the military, can be held responsible or accountable for extrajudicial killings and enforced
disappearances. We rule in the affirmative.
To hold someone liable under the doctrine of command responsibility, the following elements must
obtain:
a.
the existence of a superior-subordinate relationship between the accused as superior
and the perpetrator of the crime as his subordinate;
b.
the superior knew or had reason to know that the crime was about to be or had been
committed; and
c.
the superior failed to take the necessary and reasonable measures to prevent the
criminal acts or punish the perpetrators thereof.[84]
The president, being the commander-in-chief of all armed forces, [85] necessarily possesses control
over
the
military
that
qualifies
him
as
a
superior within the purview of the command responsibility doctrine. [86]
On the issue of knowledge, it must be pointed out that although international tribunals apply a
strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through
circumstantial evidence.[87] In the Philippines, a more liberal view is adopted and superiors may be
charged with constructive knowledge. This view is buttressed by the enactment of Executive Order
No. 226, otherwise known as the Institutionalization of the Doctrine of Command Responsibility in
all Government Offices, particularly at all Levels of Command in the Philippine National Police and
other Law Enforcement Agencies (E.O. 226).[88] Under E.O. 226, a government official may be held
liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a
crime or offense shall be committed, is being committed, or has been committed by his
subordinates, or by others within his area of responsibility and, despite such knowledge, he did
not take preventive or corrective action either before, during, or immediately after its commission.
[89]
Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the
24
acts are widespread within the government officials area of jurisdiction; (b) the acts have been

repeatedly or regularly committed within his area of responsibility; or (c) members of his
immediate staff or office personnel are involved.[90]
Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the
commander-in-chief of the armed forces, the president has the power to effectively command,
control and discipline the military.[91]
b.
Responsibility or accountability of former President Arroyo
The next question that must be tackled is whether Rodriguez has proven through substantial
evidence that former President Arroyo is responsible or accountable for his abduction. We rule in
the negative.
Rodriguez anchors his argument on a general allegation that on the basis of the Melo
Commission and the Alston Report, respondents in G.R. No. 191805 already had knowledge of
and information on, and should have known that a climate of enforced disappearances had been
perpetrated on members of the NPA. [92]Without even attaching, or at the very least, quoting these
reports, Rodriguez contends that the Melo Report points to rogue military men as the perpetrators.
While the Alston Report states that there is a policy allowing enforced disappearances and pins the
blame on the President, we do not automatically impute responsibility to former President Arroyo
for each and every count of forcible disappearance. [93] Aside from Rodriguezs general averments,
there is no piece of evidence that could establish her responsibility or accountability for his
abduction. Neither was there even a clear attempt to show that she should have known about the
violation of his right to life, liberty or security, or that she had failed to investigate, punish or
prevent it.
Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805
The doctrine of totality of evidence in amparo cases was first laid down in this Courts ruling
in Razon,[94] to wit:
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their
totality, and to consider any evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our
rules to the most basic test of reason i.e., to the relevance of the evidence to the issue at hand
and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test.[95] (Emphasis supplied.)
In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the
same being supported by substantial evidence. A careful examination of the records of this case
reveals that the totality of the evidence adduced by Rodriguez indubitably prove the responsibility
and accountability of some respondents in G.R. No. 191805 for violating his right to life, liberty and
security.
a.
The totality of evidence proved by substantial evidence the responsibility or
accountability of respondents for the violation of or threat to Rodriguezs right to life, liberty and
security.
After a careful examination of the records of these cases, we are convinced that the Court of
Appeals correctly found sufficient evidence proving that the soldiers of the 17 th Infantry Battalion,
5th Infantry Division of the military abducted Rodriguez on 6 September 2009, and detained and
tortured him until 17 September 2009.
Rodriguezs Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward
account of his horrific ordeal with the military, detailing the manner in which he was captured and
maltreated on account of his suspected membership in the NPA. [96] His narration of his suffering
included an exhaustive description of his physical surroundings, personal circumstances and

perceived observations. He likewise positively identified respondents 1 st Lt. Matutina and Lt. Col.
Mina to be present during his abduction, detention and torture, [97] and respondents Cruz, Pasicolan
and Callagan as the CHR representatives who appeared during his release.[98]
More particularly, the fact of Rodriguezs abduction was corroborated by Carlos in his Sinumpaang
Salaysay dated 16 September 2009,[99] wherein he recounted in detail the circumstances
surrounding the victims capture.
As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas
validate the physical maltreatment Rodriguez suffered in the hands of the soldiers of the
17th Infantry Battalion, 5th Infantry Division. According to the Certification dated 12 October 2009
executed by Dr. Ramil,[100] she examined Rodriguez in the Alfonso Ponce Enrile Memorial District
Hospital on 16 September 2009 and arrived at the following findings:
FACE
-

10cm healed scar face right side

2cm healed scar right eyebrow (lateral area)
2cm healed scar right eye brow (median area)
4cm x 2cm hematoma anterior chest at the sternal area right side
3cm x 2cm hematoma sternal area left side
6cm x 1cm hematoma from epigastric area to ant. chest left side
6cm x 1cm hematoma from epigastric area to ant. chest right side
Multiple healed rashes (brownish discoloration) both forearm
Multiple healed rashes (brownish discoloration)
both leg arm
hip area/lumbar area[101]

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the
results of which confirmed that the injuries suffered by the latter were inflicted through torture. Dr.
Pamugas thus issued a Medical Report dated 23 September 2009,[102] explicitly stating that
Rodriguez had been tortured during his detention by the military, to wit:
X. Interpretation of Findings
The above physical and psychological findings sustained by the subject are related to the torture
and ill-treatment done to him. The multiple circular brown to dark brown spots found on both legs
and arms were due to the insect bites that he sustained when he was forced to join twice in the
military operations. The abrasions could also be due to the conditions related during military
operations. The multiple pin-point blood spots found on his left ear is a result of an unknown
object placed inside his left ear. The areas of tenderness he felt during the physical examination
were due to the overwhelming punching and kicking on his body. The occasional difficulty of
sleeping is a symptom experience (sic) by the subject as a result of the psychological trauma he
encountered during his detention.

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical
finding that the injuries suffered by Rodriguez matched his account of the maltreatment inflicted
on him by the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the Philippine Army.
Further, the kind of injuries he sustained showed that he could not have sustained them from
merely falling, thus making respondents claim highly implausible.
Despite these medical findings that overwhelmingly supported and lent credibility to the
allegations of Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No. 191805 still
stubbornly clung to their argument that he was neither abducted nor detained. Rather, they claimed
that he was a double agent, whose relationship with the military was at all times congenial. This
contention cannot be sustained, as it is far removed from ordinary human experience.
If it were true that Rodriguez maintained amicable relations with the military, then he should have
unhesitatingly assured his family on 17 September 2009 that he was among friends. Instead, he
vigorously pleaded with them to get him out of the military facility. In fact, in the Sinumpaang
Salaysay dated 4 December 2009[104] Wilma executed, she made the following averments:
18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa mukha syang
pagod at malaki ang kanyang ipinayat.
19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang iiwan sa
lugar na iyon;
xxx

xxx

xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang linggo sa
kampo ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo;
24. Na hindi ako pumayag na maiwan ang aking anak;
xxx

xxx

xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa kaligtasan ng aming
buong pamilya, lalo na kay Noriel; xxx[105]
Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3
December 2009:[106]
24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina sya, malaki ang
ipinayat at nanlalalim ang mga mata;
25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko syang
masigla at masayahin;
26. Na ilang minuto lang ay binulugan nya ako ng Kuya, ilabas mo ako dito, papatayin nila ako.

XI. Conclusions and Recommendations

The physical injuries and psychological trauma suffered by the subject are secondary to the
torture and ill-treatment done to him while in detention for about 11 days. The physical injuries
sustained by the subject, of which the age is compatible with the alleged date of infliction (sic).
[103]
(Emphasis supplied.)

25

27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang aking
kapatid sa kanila para raw ma-train sya.
28. Na hindi kami pumayag ng aking nanay; xxx[107]

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly
contradictory, contention of respondents in G.R. No. 191805 that while Rodriguez had complained
of his exhaustion from his activities as a member of the CPP-NPA, he nevertheless willingly
volunteered to return to his life in the NPA to become a double-agent for the military. The lower
court ruled in this manner:
In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military
handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the
wilderness, and that he wanted to become an ordinary citizen again because of the empty
promises of the CPP-NPA. However, in the same Return, respondents state that petitioner agreed
to become a double agent for the military and wanted to re-enter the CPP-NPA, so that he could get
information regarding the movement directly from the source. If petitioner was tired of life in the
wilderness and desired to become an ordinary citizen again, it defies logic that he would agree to
become an undercover agent and work alongside soldiers in the mountains or the wilderness he
dreads to locate the hideout of his alleged NPA comrades.[108] (Emphasis supplied.)
Furthermore, the appellate court also properly ruled that aside from the abduction, detention and
torture of Rodriguez, respondents, specifically 1 st Lt. Matutina, had violated and threatened the
formers right to security when they made a visual recording of his house, as well as the photos of
his relatives, to wit:
In the videos taken by the soldiers one of whom was respondent Matutina in the house of
petitioner on September 18, 2009, the soldiers even went as far as taking videos of the photos of
petitioners relatives hung on the wall of the house, as well as videos of the innermost part of the
house. This Court notes that 1Lt. Matutina, by taking the said videos, did not merely intend to
make proofs of the safe arrival of petitioner and his family in their home. 1Lt. Matutina also desired
to instill fear in the minds of petitioner and his family by showing them that the sanctity of their
home, from then on, will not be free from the watchful eyes of the military, permanently captured
through the medium of a seemingly innocuous cellhpone video camera. The Court cannot and
will not condone such act, as it intrudes into the very core of petitioners right to security
guaranteed by the fundamental law.[109] (Emphasis supplied.)
Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory
defenses presented by respondents in G.R. No. 191805, give credence to his claim that he had
been abducted, detained and tortured by soldiers belonging to the 17 th Infantry Battalion,
5th Infantry Division of the military.
It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no
substantial evidence to show that they violated, or threatened with violation, Rodriguezs right to
life, liberty and security. Despite the dearth of evidence to show the CHR officers responsibility or
accountability, this Court nonetheless emphasizes its criticism as regards their capacity to
recognize torture or any similar form of abuse. The CHR, being constitutionally mandated to
protect human rights and investigate violations thereof,[110] should ensure that its officers are wellequipped to respond effectively to and address human rights violations. The actuations of
respondents unmistakably showed their insufficient competence in facilitating and ensuring the
safe release of Rodriguez after his ordeal.
b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to
Rodriguezs rights to life, liberty and security.
The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life,
26
liberty and security may be caused by either an act or an omissionof a public official.[111] Moreover,
in the context of amparo

proceedings, responsibility may refer to the participation of the respondents, by action

or omission, in enforced disappearance.[112] Accountability, on the other hand, may attach to
respondents who are imputed with knowledge relating to the enforced disappearance and
who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance.[113]
In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo [114] that the right
to security of a person includes the positive obligation of the government to ensure the
observance of the duty to investigate, viz:
Third, the right to security of person is a guarantee of protection of one's 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. The Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests that depends upon the initiative
of the victim or his family or upon their offer of proof, without an effective search for the truth by
the government.
xxx

xxx

xxx

Similarly, the European Court of Human Rights (ECHR) has interpreted the right to security not
only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty. The ECHR interpreted the right to security of
person under Article 5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey. In this case, the claimant's son had been arrested by
state authorities and had not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity with the substantive
and procedural rules of national law but must equally be in keeping with the very purpose of Article
5, namely to protect the individual from arbitrariness... Having assumed control over that individual
it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5
must be seen as requiring the authorities to take effective measures to safeguard against the risk
of disappearance and to conduct a prompt effective investigation into an arguable claim that a
person has been taken into custody and has not been seen since.[115] (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or
accountable for the violation of Rodriguezs right to life, liberty and security on account of their
abject failure to conduct a fair and effective official investigation of his ordeal in the hands of the
military. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera
and Lt. Col. Mina only conducted a perfunctory investigation, exerting no efforts to take Ramirezs
account of the events into consideration. Rather, these respondents solely relied on the reports
and narration of the military. The ruling of the appellate court must be emphasized:
In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are
accountable, for while they were charged with the investigation of the subject incident, the
investigation they conducted and/or relied on is superficial and one-sided. The records disclose
that the military, in investigating the incident complained of, depended on theComprehensive
Report of Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of
the 501st Infantry Brigade, 5th Infantry Division, Philippine Army. Such report, however, is merely
based on the narration of the military. No efforts were undertaken to solicit petitioners version of
the subject incident and no witnesses were questioned regarding the alleged abduction of
petitioner.
Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act
No. 6975, otherwise known as the PNP Law, specifies the PNP as the governmental office with
the mandate to investigate and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution. In this case, PDG Verzosa failed to order the
police to conduct the necessary investigation to unmask the mystery surrounding petitioners
abduction and disappearance. Instead, PDG Verzosa disclaims accountability by merely stating
that petitioner has no cause of action against him. Palpable, however, is the lack of any effort on
the part of PDG Verzosa to effectively and aggressively investigate the violations of petitioners
right to life, liberty and security by members of the 17 th Infantry Battalion, 17th Infantry Division,
Philippine Army.[116] (Emphasis supplied.)
Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez
violated his right to security, for which respondents in G.R. No. 191805 must be held responsible or
accountable.
Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or
accountability on the part of respondents P/CSupt. Tolentino, P/SSupt. Santos, Calog and
Palacpac. Respondent P/CSupt. Tolentino had already retired when the abduction and torture of
Rodriguez was perpetrated, while P/SSupt. Santos had already been reassigned and transferred to
the National Capital Regional Police Office six months before the subject incident occurred.
Meanwhile, no sufficient allegations were maintained against respondents Calog and Palacpac.
From all the foregoing, we rule that Rodriguez was successful in proving through substantial
evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen.
De Vera, 1st Lt. Matutina, and Lt. Col. Mina were responsible and accountable for the violation of
Rodriguezs rights to life, liberty and security on the basis of (a) his abduction, detention and
torture from 6 September to 17 September 2009, and (b) the lack of any fair and effective official
investigation as to his allegations. Thus, the privilege of the writs of amparo and habeas data must
be granted in his favor. As a result, there is no longer any need to issue a temporary protection
order, as the privilege of these writs already has the effect of enjoining respondents in G.R. No.
191805 from violating his rights to life, liberty and security.
It is also clear from the above discussion that despite (a) maintaining former President Arroyo in
27
the list of respondents in G.R. No. 191805, and (b) allowing the application of the command
responsibility doctrine to amparo and habeas data proceedings, Rodriguez failed to prove through

substantial evidence that former President Arroyo was responsible or accountable for the violation
of his rights to life, liberty and property. He likewise failed to prove through substantial evidence
the accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan.
WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805
and DENY the Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is
hereby AFFIRMED WITH MODIFICATION.
The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo,
P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz,
Aldwin Pasicolan and Vicent Callagan for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice
(DOJ) to take the appropriate action with respect to any possible liability or liabilities, within their
respective legal competence, that may have been incurred by respondents Gen. Victor Ibrado,
PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera,
1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to
submit to this Court the results of their action within a period of six months from receipt of this
Decision.
In the event that herein respondents no longer occupy their respective posts, the directives
mandated in this Decision and in the Court of Appeals are enforceable against the incumbent
officials holding the relevant positions. Failure to comply with the foregoing shall constitute
contempt of court.
SO ORDERED.
Right to Privacy
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 193636
July 24, 2012
MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of Ilocos Norte, and
P/SUPT. WILLIAM 0. FANG, in his capacity as Chief, Intelligence Division, PNP Provincial Office,
Ilocos Norte,Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed pursuant to
Rule 191 of the Rule on the Writ of Habeas Data, 2 seeking a review of the 9 September 2010
Decision in Special Proc. No. 14979 of the Regional Trial Court, First Judicial Region, Laoag City,
Branch 13 (RTC Br. 13).3 The questioned Decision denied petitioner the privilege of the writ of
habeas data.4
At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa) was the Mayor
of Dingras, Ilocos Norte.5 Meanwhile, respondent Police Senior Superintendent (P/SSUPT.) Marlou
C. Chan was the Officer-in-Charge, and respondent Police Superintendent (P/SUPT.) William O.
Fang was the Chief of the Provincial Investigation and Detective Management Branch, both of the
Ilocos Norte Police Provincial Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative Order No.
275 (A.O. 275), "Creating an Independent Commission to Address the Alleged Existence of Private
Armies in the Country."7 The body, which was later on referred to as the Zearosa
Commission,8 was formed to investigate the existence of private army groups (PAGs) in the

country with a view to eliminating them before the 10 May 2010 elections and dismantling them
permanently in the future.9 Upon the conclusion of its investigation, the Zearosa Commission
released and submitted to the Office of the President a confidential report entitled "A Journey
Towards H.O.P.E.: The Independent Commission Against Private Armies Report to the President"
(the Report).10
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNPIlocos Norte) conducted a
series of surveillance operations against her and her aides, 11 and classified her as someone who
keeps a PAG.12Purportedly without the benefit of data verification, PNPIlocos Norte forwarded the
information gathered on her to the Zearosa Commission, 13 thereby causing her inclusion in the
Reports enumeration of individuals maintaining PAGs. 14 More specifically, she pointed out the
following items reflected therein:
(a) The Report cited the PNP as its source for the portion regarding the status of PAGs in the
Philippines.15
(b) The Report stated that "x x x the PNP organized one dedicated Special Task Group (STG) for
each private armed group (PAG) to monitor and counteract their activities."16
(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP and captioned as
"Status of PAGs Monitoring by STGs as of April 19, 2010," which classifies PAGs in the country
according to region, indicates their identity, and lists the prominent personalities with whom these
groups are associated.17 The first entry in the table names a PAG, known as the Gamboa Group,
linked to herein petitioner Gamboa.18
(d) Statistics on the status of PAGs were based on data from the PNP, to wit:
The resolutions were the subject of a national press conference held in Malacaang on March 24,
2010 at which time, the Commission was also asked to comment on the PNP report that out of one
hundred seventeen (117) partisan armed groups validated, twenty-four (24) had been dismantled
with sixty-seven (67) members apprehended and more than eighty-six (86) firearms confiscated.
Commissioner Herman Basbao qualified that said statistics were based on PNP data but that the
more significant fact from his report is that the PNP has been vigilant in monitoring the activities of
these armed groups and this vigilance is largely due to the existence of the Commission which has
continued communicating with the Armed Forces of the Philippines (AFP) and PNP personnel in
the field to constantly provide data on the activities of the PAGs. Commissioner Basbao stressed
that the Commissions efforts have preempted the formation of the PAGs because now everyone is
aware that there is a body monitoring the PAGs movement through the PNP. Commissioner
Lieutenant General Edilberto Pardo Adan also clarified that the PAGs are being destabilized so that
their ability to threaten and sow fear during the election has been considerably weakened. 19
(e) The Report briefly touched upon the validation system of the PNP:
Also, in order to provide the Commission with accurate data which is truly reflective of the
situation in the field, the PNP complied with the Commissions recommendation that they revise
their validation system to include those PAGs previously listed as dormant. In the most recent
briefing provided by the PNP on April 26, 2010, there are one hundred seven (107) existing PAGs.
Of these groups, the PNP reported that seven (7) PAGs have been reorganized.20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of the
Report naming Gamboa as one of the politicians alleged to be maintaining a PAG. 21 Gamboa
averred that her association with a PAG also appeared on print media. 22 Thus, she was publicly
tagged as someone who maintains a PAG on the basis of the unverified information that the PNPIlocos Norte gathered and forwarded to the Zearosa Commission. 23 As a result, she claimed that
her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as
published in the Report also made her, as well as her supporters and other people identified with
her, susceptible to harassment and police surveillance operations.24
28
Contending that her right to privacy was violated and her reputation maligned and destroyed,
Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of habeas data against

respondents in their capacities as officials of the PNP-Ilocos Norte. 25 In her Petition, she prayed for
the following reliefs: (a) destruction of the unverified reports from the PNP-Ilocos Norte database;
(b) withdrawal of all information forwarded to higher PNP officials; (c) rectification of the damage
done to her honor; (d) ordering respondents to refrain from forwarding unverified reports against
her; and (e) restraining respondents from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the
corresponding writ on 14 July 2010 after finding the Petition meritorious on its face. 27 Thus, the
trial court (a) instructed respondents to submit all information and reports forwarded to and used
by the Zearosa Commission as basis to include her in the list of persons maintaining PAGs; (b)
directed respondents, and any person acting on their behalf, to cease and desist from forwarding
to the Zearosa Commission, or to any other government entity, information that they may have
gathered against her without the approval of the court; (c) ordered respondents to make a written
return of the writ together with supporting affidavits; and (d) scheduled the summary hearing of the
case on 23 July 2010.28
In their Return of the Writ, respondents alleged that they had acted within the bounds of their
mandate in conducting the investigation and surveillance of Gamboa. 29 The information stored in
their database supposedly pertained to two criminal cases in which she was implicated, namely:
(a) a Complaint for murder and frustrated murder docketed as NPS DOC No. 1-04-INQ-091-00077,
and (b) a Complaint for murder, frustrated murder and direct assault upon a person in authority, as
well as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10A-00009.30
Respondents likewise asserted that the Petition was incomplete for failing to comply with the
following requisites under the Rule on the Writ of Habeas Data: (a) the manner in which the right to
privacy was violated or threatened with violation and how it affected the right to life, liberty or
security of Gamboa; (b) the actions and recourses she took to secure the data or information; and
(c) the location of the files, registers or databases, the government office, and the person in
charge, in possession or in control of the data or information. 31 They also contended that the
Petition for Writ of Habeas Data, being limited to cases of extrajudicial killings and enforced
disappearances, was not the proper remedy to address the alleged besmirching of the reputation
of Gamboa.32
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the Petition. 33 The trial
court categorically ruled that the inclusion of Gamboa in the list of persons maintaining PAGs, as
published in the Report, constituted a violation of her right to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the list of persons maintaining
PAGs, Gamboas right to privacy indubitably has been violated. The violation understandably
affects her life, liberty and security enormously. The untold misery that comes with the tag of
having a PAG could even be insurmountable. As she essentially alleged in her petition, she fears
for her security that at any time of the day the unlimited powers of respondents may likely be
exercised to further malign and destroy her reputation and to transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that there was
certainly intrusion into Gamboas activities. It cannot be denied that information was gathered as
basis therefor. After all, under Administrative Order No. 275, the Zearosa Commission was tasked
to investigate the existence of private armies in the country, with all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987.
xxx
xxx
xxx
By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she accused
respondents, who are public officials, of having gathered and provided information that made the
Zearosa Commission to include her in the list. Obviously, it was this gathering and forwarding of
information supposedly by respondents that petitioner barks at as unlawful. x x x.34

Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that
Gamboa failed to prove through substantial evidence that the subject information originated from
respondents, and that they forwarded this database to the Zearosa Commission without the
benefit of prior verification.35 The trial court also ruled that even before respondents assumed their
official positions, information on her may have already been acquired. 36 Finally, it held that the
Zearosa Commission, as the body tasked to gather information on PAGs and authorized to
disclose information on her, should have been impleaded as a necessary if not a compulsory party
to the Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010, 38 raising the following
assignment of errors:
1. The trial court erred in ruling that the Zearosa Commission be impleaded as either a necessary
or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present sufficient proof to link
respondents as the informant to [sic] the Zearosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zearosa Commission to [sic] the
PNP as alleged by Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to PNP as an agency. 39
On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present
substantial evidence to show that her right to privacy in life, liberty or security was violated, and
(b) the trial court correctly dismissed the Petition on the ground that she had failed to present
sufficient proof showing that respondents were the source of the report naming her as one who
maintains a PAG.40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to
dismantle PAGs in the country should be done in accordance with due process, such that the
gathering and forwarding of unverified information on her must be considered unlawful. 41 She also
reiterates that she was able to present sufficient evidence showing that the subject information
originated from respondents.42
In determining whether Gamboa should be granted the privilege of the writ of habeas data, this
Court is called upon to, first, unpack the concept of the right to privacy; second, explain the writ of
habeas data as an extraordinary remedy that seeks to protect the right to informational privacy;
and finally, contextualize the right to privacy vis--vis the state interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional
right. This Court, in Morfe v. Mutuc,43 thus enunciated:
The due process question touching on an alleged deprivation of liberty as thus resolved goes a
long way in disposing of the objections raised by plaintiff that the provision on the periodical
submission of a sworn statement of assets and liabilities is violative of the constitutional right to
privacy. There is much to be said for this view of Justice Douglas: "Liberty in the constitutional
sense must mean more than freedom from unlawful governmental restraint; it must include privacy
as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all
freedom." As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the
most comprehensive of rights and the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel respect for his
personality as a unique individual whose claim to privacy and interference demands respect. xxx.
xxx
xxx
xxx
x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of
the Court, stated: "Various guarantees create zones of privacy. The right of association contained
29
in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers in any house in time of peace without the consent of

the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures. The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a
zone of privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." After referring to various American
Supreme Court decisions, Justice Douglas continued: "These cases bear witness that the right of
privacy which presses for recognition is a legitimate one."
xxx
xxx
xxx
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: "The concept of limited government
has always included the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between absolute and
limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government, safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector protection, in other words, of the dignity and
integrity of the individual has become increasingly important as modern society has developed.
All the forces of a technological age industrialization, urbanization, and organization operate
to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference between a democratic and a
totalitarian society."44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the right to privacy in
Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution. It is expressly recognized in section 3 (1) of
the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.
xxx
xxx
xxx
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.
xxx
xxx
xxx
Sec. 8. The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that
"every person shall respect the dignity, personality, privacy and peace of mind of his neighbors
and other persons" and punishes as actionable torts several acts by a person of meddling and

prying into the privacy of another. It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of another person, and
recognizes the privacy of letters and other private communications. The Revised Penal Code
makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets,
and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping
Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on
privileged communication likewise recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly drawn. x x x. 46 (Emphases
supplied)
Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion
or constraint. However, in Standard Chartered Bank v. Senate Committee on Banks, 47 this Court
underscored that the right to privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim respondent has violated, suffice it to
state that privacy is not an absolute right. While it is true that Section 21, Article VI of the
Constitution, guarantees respect for the rights of persons affected by the legislative investigation,
not every invocation of the right to privacy should be allowed to thwart a legitimate congressional
inquiry. In Sabio v. Gordon, we have held that the right of the people to access information on
matters of public concern generally prevails over the right to privacy of ordinary financial
transactions. In that case, we declared that the right to privacy is not absolute where there is an
overriding compelling state interest. Employing the rational basis relationship test, as laid down in
Morfe v. Mutuc, there is no infringement of the individuals right to privacy as the requirement to
disclosure information is for a valid purpose, in this case, to ensure that the government agencies
involved in regulating banking transactions adequately protect the public who invest in foreign
securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed
with the assailed legislative investigation.48
Therefore, when the right to privacy finds tension with a competing state objective, the courts are
required to weigh both notions. In these cases, although considered a fundamental right, the right
to privacy may nevertheless succumb to an opposing or overriding state interest deemed
legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to protect the image,
privacy, honor, information, and freedom of information of an individual, and to provide a forum to
enforce ones right to the truth and to informational privacy. 49 It seeks to protect a persons right to
control information regarding oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful ends. 50 It must be emphasized that
in order for the privilege of the writ to be granted, there must exist a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the other. Section 1 of the Rule
on the Writ of Habeas Data reads:
Habeas data. The writ of habeas data is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting or storing of
data information regarding the person, family, home and correspondence of the aggrieved party.
The notion of informational privacy is still developing in Philippine law and jurisprudence.
Considering that even the Latin American habeas data, on which our own Rule on the Writ of
Habeas Data is rooted, finds its origins from the European tradition of data protection, 51 this Court
can be guided by cases on the protection of personal data decided by the European Court of
30
Human Rights (ECHR). Of particular note is Leander v. Sweden, 52 in which the ECHR balanced the
right of citizens to be free from interference in their private affairs with the right of the state to

protect its national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as
a temporary replacement museum technician at the Naval Museum, which was adjacent to a
restricted military security zone. 53He was refused employment when the requisite personnel
control resulted in an unfavorable outcome on the basis of information in the secret police register,
which was kept in accordance with the Personnel Control Ordinance and to which he was
prevented access.54 He claimed, among others, that this procedure of security control violated
Article 8 of the European Convention of Human Rights55 on the right to privacy, as nothing in his
personal or political background would warrant his classification in the register as a security risk. 56
The ECHR ruled that the storage in the secret police register of information relating to the private
life of Leander, coupled with the refusal to allow him the opportunity to refute the same, amounted
to an interference in his right to respect for private life. 57 However, the ECHR held that the
interference was justified on the following grounds: (a) the personnel control system had a
legitimate aim, which was the protection of national security, 58 and (b) the Personnel Control
Ordinance gave the citizens adequate indication as to the scope and the manner of exercising
discretion in the collection, recording and release of information by the authorities. 59 The following
statements of the ECHR must be emphasized:
58. The notion of necessity implies that the interference corresponds to a pressing social need
and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Gillow
judgment of 24 November 1986, Series A no. 109, p. 22, 55).
59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the
scope of which will depend not only on the nature of the legitimate aim pursued but also on the
particular nature of the interference involved. In the instant case, the interest of the respondent
State in protecting its national security must be balanced against the seriousness of the
interference with the applicants right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting national security, for the
Contracting States to have laws granting the competent domestic authorities power, firstly, to
collect and store in registers not accessible to the public information on persons and, secondly, to
use this information when assessing the suitability of candidates for employment in posts of
importance for national security.
Admittedly, the contested interference adversely affected Mr. Leanders legitimate interests
through the consequences it had on his possibilities of access to certain sensitive posts within the
public service. On the other hand, the right of access to public service is not as such enshrined in
the Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20,
34-35), and, apart from those consequences, the interference did not constitute an obstacle to his
leading a private life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available to the
respondent State in assessing the pressing social need in the present case, and in particular in
choosing the means for achieving the legitimate aim of protecting national security, was a wide
one.
xxx
xxx
xxx
66. The fact that the information released to the military authorities was not communicated to Mr.
Leander cannot by itself warrant the conclusion that the interference was not "necessary in a
democratic society in the interests of national security", as it is the very absence of such
communication which, at least partly, ensures the efficacy of the personnel control procedure (see,
mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 27, 58).
The Court notes, however, that various authorities consulted before the issue of the Ordinance of
1969, including the Chancellor of Justice and the Parliamentary Ombudsman, considered it
desirable that the rule of communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise the purpose of the control
(see paragraph 31 above).

67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in
the Swedish personnel control system meet the requirements of paragraph 2 of Article 8 (art. 8-2).
Having regard to the wide margin of appreciation available to it, the respondent State was entitled
to consider that in the present case the interests of national security prevailed over the individual
interests of the applicant (see paragraph 59 above). The interference to which Mr. Leander was
subjected cannot therefore be said to have been disproportionate to the legitimate aim pursued.
(Emphases supplied)
Leander illustrates how the right to informational privacy, as a specific component of the right to
privacy, may yield to an overriding legitimate state interest. In similar fashion, the determination of
whether the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in
this case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and
the relevant state interest involved.
The collection and forwarding of information by the PNP vis--vis the interest of the state to
dismantle private armies.
The Constitution explicitly mandates the dismantling of private armies and other armed groups not
recognized by the duly constituted authority.60 It also provides for the establishment of one police
force that is national in scope and civilian in character, and is controlled and administered by a
national police commission.61
Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a
legitimate state aim, which is to investigate the existence of PAGs with the ultimate objective of
dismantling them permanently.
To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an
investigative body, including the power to summon witnesses, administer oaths, take testimony or
evidence relevant to the investigation and use compulsory processes to produce documents,
books, and records.62 A.O. 275 likewise authorized the Zearosa Commission to deputize the
Armed Forces of the Philippines, the National Bureau of Investigation, the Department of Justice,
the PNP, and any other law enforcement agency to assist the commission in the performance of its
functions.63
Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and
ordinances relative to the protection of lives and properties; (b) maintain peace and order and take
all necessary steps to ensure public safety; and (c) investigate and prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions
accorded to the Zearosa Commission and the PNP, the latter collected information on individuals
suspected of maintaining PAGs, monitored them and counteracted their activities. 65 One of those
individuals is herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data contained in the
Report listing her as a PAG coddler came from the PNP. Contrary to the ruling of the trial court,
however, the forwarding of information by the PNP to the Zearosa Commission was not an
unlawful act that violated or threatened her right to privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence regarding PAGs with the body
specifically created for the purpose of investigating the existence of these notorious groups.
Moreover, the Zearosa Commission was explicitly authorized to deputize the police force in the
fulfillment of the formers mandate, and thus had the power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the PNP released information
to the Zearosa Commission without prior communication to Gamboa and without affording her
the opportunity to refute the same cannot be interpreted as a violation or threat to her right to
privacy since that act is an inherent and crucial component of intelligence-gathering and
investigation.1wphi1 Additionally, Gamboa herself admitted that the PNP had a validation system,
31
which was used to update information on individuals associated with PAGs and to ensure that the

data mirrored the situation on the field.66 Thus, safeguards were put in place to make sure that the
information collected maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court declines to make any further
determination as to the propriety of sharing information during specific stages of intelligence
gathering. To do otherwise would supplant the discretion of investigative bodies in the
accomplishment of their functions, resulting in an undue encroachment on their competence.
However, to accord the right to privacy with the kind of protection established in existing law and
jurisprudence, this Court nonetheless deems it necessary to caution these investigating entities
that information-sharing must observe strict confidentiality. Intelligence gathered must be released
exclusively to the authorities empowered to receive the relevant information. After all, inherent to
the right to privacy is the freedom from "unwarranted exploitation of ones person or from
intrusion into ones private activities in such a way as to cause humiliation to a persons ordinary
sensibilities."67
In this case, respondents admitted the existence of the Report, but emphasized its confidential
nature.1wphi1 That it was leaked to third parties and the media was regrettable, even warranting
reproach. But it must be stressed that Gamboa failed to establish that respondents were
responsible for this unintended disclosure. In any event, there are other reliefs available to her to
address the purported damage to her reputation, making a resort to the extraordinary remedy of
the writ of habeas data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her
inclusion in the list of individuals maintaining PAGs made her and her supporters susceptible to
harassment and to increased police surveillance. In this regard, respondents sufficiently explained
that the investigations conducted against her were in relation to the criminal cases in which she
was implicated. As public officials, they enjoy the presumption of regularity, which she failed to
overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs
the alleged intrusion on the private life of Gamboa, especially when the collection and forwarding
by the PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of
the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed Decision in Special Proc. No.
14979 dated 9 September 2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it denies
Gamboa the privilege of the writ of habeas data, is AFFIRMED.
SO ORDERED.
MARIA LOURDES P.A. SERENO
Associate justice
Privacy of communication
SECOND DIVISION
[G.R. No. 121087. August 26, 1999]
FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated December
14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated
July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and
sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal, as maximum, but increased the death indemnity
awarded to the heirs of the victim, Enrique Ike Lingan, from P30,000.00 to P50,000.00.
The information against petitioner alleged

That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being
then a member of the Lucena Integrated National Police, with intent to kill, did then and there
willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters,
where authorities are supposed to be engaged in the discharge of their duties, by boxing the said
Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his
head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral
concussion and shock which directly caused his death.
The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and
Enrique Ike Lingan, who were reporters of the radio station DWTI in Lucena City, together with
one Mario Ilagan, went to the Entertainment City following reports that it was showing nude
dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer
appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena
brought out his camera and took a picture.[2]
At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached
Jalbuena and demanded to know why he took a picture. [3] Jalbuena replied: Wala kang pakialam,
because this is my job.[4] Sioco pushed Jalbuena towards the table as he warned the latter that he
would kill him.[5] When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the
joint followed by his companions.[6]
Jalbuena and his companions went to the police station to report the matter. Three of the
policemen on duty, including petitioner Navarro, were having drinks in front of the police station,
and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the
desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a
motorcycle.[7]
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around
fifteen minutes.[8] Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall,
said to him: Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba
kilala?[9] Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face
of Jalbuena, said, Ano, uutasin na kita?[10]
At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan, pumarito
kami para magpa-blotter, I am here to mediate. [11] Petitioner Navarro replied: Walang press,
press, mag-sampu pa kayo.[12] He then turned to Sgt. Aonuevo and told him to make of record the
behavior of Jalbuena and Lingan.[13]
This angered Lingan, who said: O, di ilagay mo diyan.[14] Petitioner Navarro retorted: Talagang
ilalagay ko.[15] The two then had a heated exchange.[16] Finally, Lingan said: Masyado kang
abusado, alisin mo yang baril mo at magsuntukan na lang tayo.[17] Petitioner Navarro replied: Ah,
ganoon?[18]
As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol above the
left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but
petitioner Navarro gave him a fist blow on the forehead which floored him. [19]
Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike Lingan
ang naghamon.[20] He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex Sioco at
Dante Liquin, na si Ike Lingan ang naghamon.[21] He then poked his gun at the right temple of
Jalbuena and made him sign his name on the blotter. [22] Jalbuena could not affix his signature. His
right hand was trembling and he simply wrote his name in print. [23]
Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman
took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy Casaada,
arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died
32
from his injuries.[24]

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between
petitioner and the deceased.[25] The following is an excerpt from the tape recording:
Lingan:
Pare, you are abusing yourself.
Navarro: Who is that abusing?
Lingan:
Im here to mediate. Do not include me in the problem. Im out of the problem.
....
Navarro: Wala sa akin yan. Ang kaso lang . . . .
Lingan:
Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with
me. I just came here to ayusin things. Do not say bad things against me. Im the number one loko
sa media. Im the best media man. . . .
Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong
sabihing loko ka!
Lingan:
Im brave also.
Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nagtatrabaho lang ako ng ayon sa serbisyo ko.
Lingan:
You are challenging me and him. . . .
Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita
tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.
Lingan:
Pati ako kalaban ninyo.
Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!
Lingan:
You are wrong. Bakit kalaban nyo ang press?
Navarro: Pulis ito! Aba!
Lingan:
Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.
Navarro: Mayabang ka ah!
(Sounds of a scuffle)
Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo
kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa
harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot
nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo
ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he
(petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice,
each time hitting his head on the concrete.[26]
In giving credence to the evidence for the prosecution, the trial court stated:
After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the
defense, this court finds that the evidence for the prosecution is the more credible, concrete and
sufficient to create that moral certainty in the mind of the court that accused herein is criminally
responsible.
The defenses evidence which consists of outright denial could not under the circumstance
overturn the strength of the prosecutions evidence.
This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any
motive to make false accusation, distort the truth, testify falsehood or cause accusation of one
who had neither brought him harm or injury.
Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms
the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries.
Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the
defense that the head injuries of deceased Lingan were caused by the latters falling down on the
concrete pavement head first.
The Court of Appeals affirmed:

We are far from being convinced by appellants aforesaid disquisition. We have carefully evaluated
the conflicting versions of the incident as presented by both parties, and we find the trial courts
factual conclusions to have better and stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a victim of appellants aggression does
not impair the probative worth of his positive and logical account of the incident in question. In
fact, far from proving his innocence, appellants unwarranted assault upon Jalbuena, which the
defense has virtually admitted, clearly betrays his violent character or disposition and his capacity
to harm others. Apparently, the same motivation that led him into assailing Jalbuena must have
provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him and
further challenged him to a fist fight.
....
On the other hand, appellants explanation as to how Lingan was injured is too tenuous and
illogical to be accepted. It is in fact contradicted by the number, nature and location of Lingans
injuries as shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two
times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered
lacerated wounds in his left forehead, left eyebrow, between his left and right eyebrows, and
contusion in the right temporal region of the head (Exh. E). Certainly, these injuries could not have
resulted from Lingans accidental fall.
Hence, this appeal. Petitioner Navarro contends:
THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW
AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A
FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS
MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF
DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS
CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE
RECORD.
The appeal is without merit.
First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that
he was a biased witness, having a grudge against him. The testimony of a witness who has an
interest in the conviction of the accused is not, for this reason alone, unreliable. [27] Trial courts,
which have the opportunity to observe the facial expressions, gestures, and tones of voice of a
witness while testifying, are competent to determine whether his or her testimony should be given
credence.[28] In the instant case, petitioner Navarro has not shown that the trial court erred in
according weight to the testimony of Jalbuena.
Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked
whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer
is in the affirmative. The law provides:
SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or
tape-recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the
next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any
other such record, or copies thereof, of any communication or spoken word secured either before
or after the effective date of this Act in the manner prohibited by this law; or to replay the same for
any other person or persons; or to communicate the contents thereof, either verbally or in writing,
or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided,
33
That the use of such record or any copies thereof as evidence in any civil, criminal investigation or
trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

....
SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport,
effect, or meaning of the same or any part thereof, or any information therein contained obtained or
secured by any person in violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of private communications.
[29]
Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is
not prohibited.
Nor is there any question that it was duly authenticated. A voice recording is authenticated by the
testimony of a witness (1) that he personally recorded the conversation; (2) that the tape played in
court was the one he recorded; and (3) that the voices on the tape are those of the persons such
are claimed to belong.[30] In the instant case, Jalbuena testified that he personally made the voice
recording;[31] that the tape played in court was the one he recorded; [32] and that the speakers on the
tape were petitioner Navarro and Lingan. [33] A sufficient foundation was thus laid for the
authentication of the tape presented by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange
between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him
and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and
Lingan, with the latter getting the worst of it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued a
medical certificate,[34] dated February 5, 1990, containing the following findings:
Post Mortem Findings:
= Dried blood, forehead & face
= No blood oozed from the ears, nose & mouth
= Swelling, 3 cm x 2 cm, temporal region, head, right
= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left
= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left
= Cyanosis of the tips of fingers & toes
CAUSE OF DEATH:
= CEREBRAL CONCUSSION & SHOCK
= BLOW ON THE HEAD
Dr. Yamamoto testified:
Q Give your opinion as to what was the possible cause of this findings number one, which is
oozing of blood from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under your findings No. 2
doctor?
WITNESS:
It may be caused by bumping to a hard object, sir.
Q Could a butt of a gun have caused it doctor?
A The swelling is big so it could have not been caused by a butt of a gun because the butt of a
gun is small, sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.

Q And findings No. 5 what could have caused it?

A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing, sir.
Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it
doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:
In this same post mortem report and under the heading cause of death it states: Cause of
Death: Cerebral concussion and Shock, will you explain it?
A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir.
Q Could any one of both caused the death of the victim?
A Yes, sir.
Q Could cerebral concussion alone have caused the death of the deceased?
A May be, sir.
Q How about shock?
A Yes, sir.
FISCAL:
Which of these two more likely to cause death?
WITNESS:
Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier, sir.
....
FISCAL:
Could a bumping or pushing of ones head against a concrete floor have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.[35]
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with
the handle of his pistol above the left eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the part
of the offended party immediately preceding the act should have been appreciated in favor of
petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the
offended party, capable of exciting, inciting, or irritating anyone. [36] The provocation must be
sufficient and should immediately precede the act. [37] People v. Paga, 79 SCRA 570 (1977).37 To be
sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be
proportionate in gravity.[38] And it must immediately precede the act so much so that there is no
interval between the provocation by the offended party and the commission of the crime by the
accused.[39]
In the present case, the remarks of Lingan, which immediately preceded the act of petitioner,
constituted sufficient provocation. In People v. Macaso,[40] we appreciated this mitigating
34
circumstance in favor of the accused, a policeman, who shot a motorist after the latter had

repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be
considered in favor of petitioner Navarro.
Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a
wrong as that committed should also be appreciated in favor of petitioner. The frantic
exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows
that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into
account in determining the penalty that should be imposed on petitioner Navarro. The allowance
of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by
any person committing a felony although the wrongful act done be different from that which he
intended.[41] In People v. Castro,[42] the mitigating circumstance of lack of intent to commit so grave
a wrong as that committed was appreciated in favor of the accused while finding him guilty of
homicide.
However, the aggravating circumstance of commission of a crime in a place where the public
authorities are engaged in the discharge of their duties should be appreciated against petitioner
Navarro. The offense in this case was committed right in the police station where policemen were
discharging their public functions.[43]
The crime committed as found by the trial court and the Court of Appeals was homicide, for which
the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two
mitigating circumstances and one aggravating circumstance, the penalty should be fixed in its
minimum period.[44] Applying the Indeterminate Sentence Law, petitioner Navarro should be
sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty
next lower in degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its
minimum period.[45]
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in
accordance with current jurisprudence.[46]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that
petitioner Felipe Navarro is hereby SENTENCED to suffer a prison term of 8 years of prision mayor,
as minimum, to 14 years and 8 months of reclusion temporal, as maximum.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 93833 September 28, 1995
SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.
KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of
Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in
the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious
mood" and in a manner offensive to petitioner's dignity and personality," contrary to
morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought
moral damages, attorney's fees and other expenses of litigation in the amount of
P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's

35

discretion. The transcript on which the civil case was based was culled from a tape
recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano
ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Tapos iniwan no. (Sic)
CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon
ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00
p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa
States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan
mo na kasi hindi ka sa akin makakahingi.
CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.
ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka
sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you
think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita
(Sinusumbatan na kita).
CHUCHI Itutuloy ko na M'am sana ang duty ko.
ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam
ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka
papasa.
CHUCHI Kumuha kami ng exam noon.
ESG Oo, pero hindi ka papasa.
CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG Kukunin ka kasi ako.
CHUCHI Eh, di sana
ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha
ka dito kung hindi ako.
CHUCHI Mag-eexplain ako.
ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito.
"Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang
ko.
ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi
pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI Kasi M'am, binbalikan ako ng mga taga Union.
ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung
hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI Ina-ano ko m'am na utang na loob.
ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.
CHUCHI Paano kita nilapastanganan?
ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na.
Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly
taping the confrontation was illegal, private respondent filed a criminal case before the
Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to
prohibit and penalize wire tapping and other related violations of private communication,
and other purposes." An information charging petitioner of violation of the said Act,
dated October 6, 1988 is quoted herewith:
INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic
Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and
within the jurisdiction of this honorable court, the above-named accused, Socorro D.
Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with
said accused, did then and there willfully, unlawfully and feloniously, with the use of a
tape recorder secretly record the said conversation and thereafter communicate in
writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the
ground that the facts charged do not constitute an offense, particularly a violation of
R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing
with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200;
and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication
by a personother than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for Review
on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in
a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision
declaring the trial court's order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In
thus quashing the information based on the ground that the facts alleged do not
constitute an offense, the respondent judge acted in grave abuse of discretion
correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which
respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the
instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision
of Republic Act 4200 does not apply to the taping of a private conversation by one of the
parties to the conversation. She contends that the provision merely refers to the
unauthorized taping of a private conversation by a party other than those involved in the
communication.8 In relation to this, petitioner avers that the substance or content of the
conversation must be alleged in the Information, otherwise the facts charged would not
constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the
taping of a "private communication," not a "private conversation" and that consequently,
her act of secretly taping her conversation with private respondent was not illegal under
the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the
language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other
Related Violations of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other
device or arrangement, to secretly overhear, intercept, or record such communication or

36

spoken word by using a device commonly known as a dictaphone or dictagraph or

detectaphone or walkie-talkie or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not
authorized by all the parties to any private communication to secretly record such
communication by means of a tape recorder. The law makes no distinction as to whether
the party sought to be penalized by the statute ought to be a party other than or different
from those involved in the private communication. The statute's intent to penalize all
persons unauthorized to make such recording is underscored by the use of the qualifier
"any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another
without the knowledge of the latter (will) qualify as a violator" 13 under this provision of
R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's
conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make
illegal, unauthorized tape recording of private conversations or communications taken
either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Taada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not
appear to be material. Now, suppose, Your Honor, the recording is not made by all the
parties but by some parties and involved not criminal cases that would be mentioned
under section 3 but would cover, for example civil cases or special proceedings whereby
a recording is made not necessarily by all the parties but perhaps by some in an effort to
show the intent of the parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their intention. Suppose
there is such a recording, would you say, Your Honor, that the intention is to cover it
within the purview of this bill or outside?
Senator Taada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but as
evidence to be used in Civil Cases or special proceedings?
Senator Taada: That is right. This is a complete ban on tape recorded conversations taken
without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Taada: I believe it is reasonable because it is not sporting to record the observation
of one without his knowing it and then using it against him. It is not fair, it is not
sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I
believe that all the parties should know that the observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Taada: Well no. For example, I was to say that in meetings of the board of directors
where a tape recording is taken, there is no objection to this if all the parties know. It is
but fair that the people whose remarks and observations are being made should know
that the observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Taada: That is why when we take statements of persons, we say: "Please be
informed that whatever you say here may be used against you." That is fairness and that
is what we demand. Now, in spite of that warning, he makes damaging statements
against his own interest, well, he cannot complain any more. But if you are going to take
a recording of the observations and remarks of a person without him knowing that it is
being taped or recorded, without him knowing that what is being recorded may be used
against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now
worded, if a party secretly records a public speech, he would be penalized under Section
1? Because the speech is public, but the recording is done secretly.
Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the
communication between one person and another person not between a speaker and a
public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted
deliberations from the Congressional Record, therefore plainly supports the view held by
the respondent court that the provision seeks to penalize even those privy to the private
communications. Where the law makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The
substance of the same need not be specifically alleged in the information. What R.A.
4200 penalizes are the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. The mere allegation that
an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the
Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere
(in the said law) is it required that before one can be regarded as a violator, the nature of
the conversation, as well as its communication to a third person should be professed."14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A.
4200 does not include "private conversations" narrows the ordinary meaning of the word
"communication" to a point of absurdity. The word communicate comes from the latin
word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting signification, communication
connotes the act of sharing or imparting, as in a conversation, 15 or signifies the
"process by which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)" 16 These definitions are
broad enough to include verbal or non-verbal, written or expressive communications of
"meanings or thoughts" which are likely to include the emotionally-charged exchange,
on February 22, 1988, between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning of the phrase "private
communication" are, furthermore, put to rest by the fact that the terms "conversation"
and "communication" were interchangeably used by Senator Taada in his Explanatory
Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being
overheard. But this statement ignores the usual nature of conversations as well the
undeniable fact that most, if not all, civilized people have some aspects of their lives
they do not wish to expose. Freeconversations are often characterized by exaggerations,
obscenity, agreeable falsehoods, and the expression of anti-social desires of views not
intended to be taken seriously. The right to the privacy of communication, among others,
has expressly been assured by our Constitution. Needless to state here, the framers of
our Constitution must have recognized the nature of conversations between individuals
and the significance of man's spiritual nature, of his feelings and of his intellect. They
must have known that part of the pleasures and satisfactions of life are to be found in

the unaudited, and free exchange of communication between individuals free from
every unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone
wiretapping, we held that the use of a telephone extension for the purpose of
overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those "device(s) or
arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must
be construed strictly in favor of the accused." 20 The instant case turns on a different
note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-recorders as among the acts
punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and
leaves us with no discretion, the instant petition is hereby DENIED. The decision
appealed from is AFFIRMED. Costs against petitioner.
SO ORDERED.

SECOND DIVISION
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:

There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner,
without his knowledge and consent. For that reason, the trial court declared the
documents and papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial courts decision,
petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled
that the documents and papers (marked as Annexes A-i to J-7 of respondents comment
in that case) were admissible in evidence and, therefore, their use by petitioners
attorney, Alfonso Felix, Jr., did not constitute malpractice or gross misconduct. For this
reason it is contended that the Court of Appeals erred in affirming the decision of the
trial court instead of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment.
Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case,
charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice
or gross misconduct because of the injunctive order of the trial court. In dismissing the
complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty.
Felix, Jr. which it found to be impressed with merit:2

This is a petition to review the decision of the Court of Appeals, affirming the decision of the
Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents
and papers taken by her from private respondents clinic without the latters knowledge
and consent.

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he

maintains that:

The facts are as follows:

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial
Court, there was admittedly an order of the Manila Regional Trial Court prohibiting
Cecilia from using the documents Annex A-I to J-7. On September 6, 1983, however
having appealed the said order to this Court on a petition for certiorari, this Court issued
a restraining order on aforesaid date which order temporarily set aside the order of the
trial court. Hence, during the enforceability of this Courts order, respondents request
for petitioner to admit the genuineness and authenticity of the subject annexes cannot
be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth
and authenticity of the questioned annexes. At that point in time, would it have been
malpractice for respondent to use petitioners admission as evidence against him in the
legal separation case pending in the Regional Trial Court of Makati? Respondent
submits it is- not malpractice.

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of
her mother, a driver and private respondents secretary, forcibly opened the drawers and
cabinet in her husbands clinic and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged paramours, greetings cards,
cancelled checks, diaries, Dr. Martins passport, and photographs. The documents and
papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her
husband.

37

declaring him the capital/exclusive owner of the properties described in paragraph 3 of

plaintiffs Complaint or those further described in the Motion to Return and Suppress
and ordering Cecilia Zulueta and any person acting in her behalf to immediately return
the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as
moral damages and attorneys fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and
her attorneys and representatives were enjoined from using or submitting/admitting as
evidence the documents and papers in question. On appeal, the Court of Appeals
affirmed the decision of the Regional Trial Court. Hence this petition.

Dr. Martin brought this action below for recovery of the documents and papers and for
damages against petitioner. The case was filed with the Regional Trial Court of Manila,
Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin,

xxx

xxx

xxx

Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself
under oath. Such verified admission constitutes an affidavit, and, therefore, receivable in

evidence against him. Petitioner became bound by his admission. For Cecilia to avail
herself of her husbands admission and use the same in her action for legal separation
cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr.
Martins admission as to their genuiness and authenticity did not constitute a violation of
the injunctive order of the trial court. By no means does the decision in that case
establish the admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the
writ of preliminary injunction issued by the trial court, it was only because, at the time he
used the documents and papers, enforcement of the order of the trial court was
temporarily restrained by this Court. The TRO issued by this Court was eventually lifted
as the petition for certiorari filed by petitioner against the trial courts order was
dismissed and, therefore, the prohibition against the further use of the documents and
papers became effective again.

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller.[1]
This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private
respondent Antonia Melodia Catolico (hereafter Catolico) not a true Servant, thereby
assailing the 30 September 1993 decision[2] and 2 December 1993 Resolution[3] of the
National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which
sustained the reinstatement and monetary awards in favor of private respondent[4] and
denied the petitioners motion for reconsideration.[5]
The facts are as follows:
Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter
WATEROUS) on 15 August 1988.

Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring the privacy of communication and correspondence
[to be] inviolable3 is no less applicable simply because it is the wife (who thinks herself
aggrieved by her husbands infidelity) who is the party against whom the constitutional
provision is to be enforced. The only exception to the prohibition in the Constitution is if
there is a lawful order [from a] court or when public safety or order requires otherwise,
as prescribed by law.4 Any violation of this provision renders the evidence obtained
inadmissible for any purpose in any proceeding.5

On 31 July 1989, Catolico received a memorandum[6] from WATEROUS Vice PresidentGeneral Manager Emma R. Co warning her not to dispense medicine to employees
chargeable to the latters accounts because the same was a prohibited practice. On the
same date, Co issued another memorandum[7] to Catolico warning her not to negotiate
with suppliers of medicine without consulting the Purchasing Department, as this would
impair the companys control of purchases and, besides she was not authorized to deal
directly with the suppliers.

The intimacies between husband and wife do not justify any one of them in breaking the
drawers and cabinets of the other and in ransacking them for any telltale evidence of
marital infidelity. A person, by contracting marriage, does not shed his/her integrity or
his right to privacy as an individual and the constitutional protection is ever available to
him or to her.

As regards the first memorandum, Catolico did not deny her responsibility but explained that
her act was due to negligence, since fellow employee Irene Soliven obtained the
medicines in bad faith and through misrepresentation when she claimed that she was
given a charge slip by the Admitting Dept. Catolico then asked the company to look
into the fraudulent activities of Soliven.[8]

The law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the
consent of the affected spouse while the marriage subsists.6 Neither may be examined
without the consent of the other as to any communication received in confidence by one
from the other during the marriage, save for specified exceptions.7 But one thing is
freedom of communication; quite another is a compulsion for each one to share what
one knows with the other. And this has nothing to do with the duty of fidelity that each
owes to the other.

In a memorandum[9] dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro

warned Catolico against the rush delivery of medicines without the proper documents.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

38

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners, vs. NATIONAL LABOR
RELATIONS COMMISSION and ANTONIA MELODIA CATOLICO, respondents.
DECISION
DAVIDE, JR. J.:

Regalado (Chairman), Romero, and Puno, JJ., concur

FIRST DIVISION
[G.R. No. 113271. October 16, 1997]

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed
an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP),
which he described as follows:
A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP
Sales Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets at
P384.00 per unit. Previous P.O.s issued to YSP, Inc. showed that the price per bottle is
P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per bottle (or
total of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832
dated December 15, 1988. Verification was made to YSP, Inc. to determine the
discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc.
Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents
refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per

their check voucher no. 629552 (shown to the undersigned), which was paid to Ms.
Catolico through China Bank check no. 892068 dated November 9, 1989....
The undersigned talked to Ms. Catolico regarding the check but she denied having received it
and that she is unaware of the overprice. However, upon conversation with Ms. Saldana,
EDRC Espana Pharmacy Clerk, she confirmed that the check amounting to P640.00 was
actually received by Ms. Catolico. As a matter of fact, Ms. Catolico even asked Ms.
Saldana if she opened the envelope containing the check but Ms. Saldana answered her
talagang ganyan, bukas. It appears that the amount in question (P640.00) had been
pocketed by Ms. Catolico.[10]
Forthwith, in her memorandum[11] dated 31 January 1990, Co asked Catolico to explain,
within twenty-four hours, her side of the reported irregularity. Catolico asked for
additional time to give her explanation,[12] and she was granted a 48-hour extension
from 1 to 3 February 1990. However, on 2 February 1990, she was informed that effective
6 February 1990 to 7 March 1990, she would be placed on preventive suspension to
protect the interests of the company.[13]
In a letter dated 2 February 1990, Catolico requested access to the file containing Sales
Invoice No. 266 for her to be able to make a satisfactory explanation. In said letter she
protested Saldaas invasion of her privacy when Saldaa opened an envelope
addressed to Catolico.[14]
In a letter[15] to Co dated 10 February 1990, Catolico, through her counsel, explained that the
check she received from YSP was a Christmas gift and not a refund of overprice. She
also averred that the preventive suspension was ill-motivated, as it sprang from an
earlier incident between her and Cos secretary, Irene Soliven.
On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum[16]
notifying Catolico of her termination; thus:
We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10,
1990 respectively regarding our imposition of preventive suspension on you for acts of
dishonesty. However, said letters failed to rebut the evidences [sic] in our possession
which clearly shows that as a Pharmacist stationed at Espana Branch, you actually made
Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle with
previous price of P320.00/bottle only. A check which you received in the amount of
P640.00 actually represents the refund of over price of said medicines and this was
confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.
Your actuation constitutes an act of dishonesty detrimental to the interest of the company.
Accordingly, you are hereby terminated effective March 8, 1990.
On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor
practice, illegal dismissal, and illegal suspension.[17]

cause and due process. He thus declared the dismissal and suspension illegal but
disallowed reinstatement, as it would not be to the best interest of the parties.
Accordingly, he awarded separation pay to Catolico computed at one-half months pay
for every year of service; back wages for one year; and the additional sum of P2,000.00
for illegal suspension representing 30 days work. Arbiter Lopez computed the award
in favor of Catolico as follows:
30 days Preventive Suspension

P 2,000.00

Backwages

26,858.50

1/12 of P26,858.50

2,238.21

Separation pay (3 years)

4,305.15

TOTAL AWARD:

P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside
because the Labor Arbiter erred in finding that Catolico was denied due process and that
there was no just cause to terminate her services.
In its decision[19] of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter
on the ground that petitioners were not able to prove a just cause for Catolicos
dismissal from her employment. It found that petitioners evidence consisted only of the
check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw
when the latter opened the envelope. But, it declared that the check was inadmissible in
evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution.[20] It
concluded:
With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the
constitutional right invoked by complainants, respondents case falls apart as it is bereft
of evidence which cannot be used as a legal basis for complainants dismissal.
The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of
the appealed decision by deleting the award for illegal suspension as the same was
already included in the computation of the aggregate of the awards in the amount of
P35,401.86.
Their motion for reconsideration having been denied, petitioners filed this special civil action
for certiorari, which is anchored on the following grounds:
I. Public respondent committed grave abuse of discretion in its findings of facts.
II. Due process was duly accorded to private respondent.
III. Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution.

39

In his decision[18] of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair
labor practice against petitioners. Nevertheless, he decided in favor of Catolico because
petitioners failed to prove what [they] alleged as complainants dishonesty, and to
show that any investigation was conducted. Hence, the dismissal was without just

As to the first and second grounds, petitioners insist that Catolico had been receiving
commissions from YSP, or probably from other suppliers, and that the check issued to
her on 9 November 1989 was not the first or the last. They also maintained that Catolico

occupied a confidential position and that Catolicos receipt of YSPs check, aggravated
by her propensity to violate company rules, constituted breach of confidence. And
contrary to the findings of NLRC, Catolico was given ample opportunity to explain her
side of the controversy.
Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti,
[21] the constitutional protection against unreasonable searches and seizures refers to
the immunity of ones person from interference by government and cannot be extended
to acts committed by private individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government.
In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed
with the NLRC's decision, as it was of the persuasion that (a) the conclusions reached by
public respondent are inconsistent with its findings of fact; and (b) the incident involving
the opening of envelope addressed to private respondent does not warrant the
application of the constitutional provisions. It observed that Catolico was given several
opportunities to explain her side of the check controversy, and concluded that the
opportunities granted her and her subsequent explanation satisfy the requirements of
just cause and due process. The OSG was also convinced that Catolicos dismissal
was based on just cause and that Catolicos admission of the existence of the check, as
well as her lame excuse that it was a Christmas gift from YSP, constituted substantial
evidence of dishonesty. Finally, the OSG echoed petitioners argument that there was no
violation of the right of privacy of communication in this case,[22] adding that petitioner
WATEROUS was justified in opening an envelope from one of its regular suppliers as it
could assume that the letter was a business communication in which it had an interest.
In its Comment which we required to be filed in view of the adverse stand of the OSG, the
NLRC contends that petitioners miserably failed to prove their claim that it committed
grave abuse of discretion in its findings of fact. It then prays that we dismiss this
petition.
In her Comment, Catolico asserts that petitioners evidence is too flimsy to justify her
dismissal. The check in issue was given to her, and she had no duty to turn it over to
her employer. Company rules do not prohibit an employee from accepting gifts from
clients, and there is no indication in the contentious check that it was meant as a refund
for overpriced medicines. Besides, the check was discovered in violation of the
constitutional provision on the right to privacy and communication; hence, as correctly
held by the NLRC, it was inadmissible in evidence.
Catolico likewise disputes petitioners claim that the audit report and her initial response that
she never received a check were sufficient to justify her dismissal. When she denied
having received a check from YSP, she meant that she did not receive any refund of
overprice, consistent with her position that what she received was a token gift. All that
can be gathered from the audit report is that there was apparently an overcharge, with
no basis to conclude that Catolico pocketed the amount in collusion with YSP. She thus
concluded that her dismissal was based on a mere suspicion.

40

Finally, Catolico insists that she could not have breached the trust and confidence of
WATEROUS because, being merely a pharmacist, she did not handle confidential

information or sensitive properties. She was doing the task of a saleslady: selling
drugs and making requisitions when supplies were low.
A thorough review of the record leads us to no other conclusion than that, except as to the
third ground, the instant petition must fail.
Concededly, Catolico was denied due process. Procedural due process requires that an
employee be apprised of the charge against him, given reasonable time to answer the
charge, allowed ample opportunity to be heard and defend himself, and assisted by a
representative if the employee so desires.[23] Ample opportunity connotes every kind of
assistance that management must accord the employee to enable him to prepare
adequately for his defense, including legal representation.[24]
In the case at bar, although Catolico was given an opportunity to explain her side, she was
dismissed from the service in the memorandum of 5 March 1990 issued by her
Supervisor after receipt of her letter and that of her counsel. No hearing was ever
conducted after the issues were joined through said letters. The Supervisors
memorandum spoke of evidences [sic] in [WATEROUS] possession, which were not,
however, submitted. What the evidences [sic] other than the sales invoice and the
check were, only the Supervisor knew.
Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove
just and valid cause for dismissing an employee, and its failure to discharge that burden
would result in a finding that the dismissal is unjustified.[25] Here, WATEROUS proved
unequal to the task.
It is evident from the Supervisors memorandum that Catolico was dismissed because of an
alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence
does not establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who
claims to have discovered Catolicos inappropriate transaction, stated in his affidavit:
[26]
4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation
of the [company] procedure, made an under the table deal with YSP Phils. to supply
WDRC needed medicines like Voren tablets at a jack-up price of P384.00 per bottle of 50
mg. which has a previous price of only P320.00;
5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the
cost per bottle was indeed overpriced. The Accounting Department of YSP Phils. through
Ms. Estelita Reyes confirmed that there was really an overprice and she said that the
difference was refunded through their check voucher no. 629552 which was shown to me
and the payee is Melodia Catolico, through a China Bank Check No. 892068 dated
November 9, 1989.
It clearly appears then that Catolicos dismissal was based on hearsay information. Estelita
Reyes never testified nor executed an affidavit relative to this case; thus, we have to
reject the statements attributed to her by Valdez. Hearsay evidence carries no probative
value.[27]

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed
Co, through the formers memorandum[28] of 29 January 1990, that WATEROUS paid
YSP P3,840.00 thru MBTC Check No. 222832, the said check was never presented in
evidence, nor was any receipt from YSP offered by petitioners.
Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate
an overcharge. The purchase order dated 16 August 1989[29] stated that the Voren
tablets cost P320.00 per box, while the purchase order dated 5 October 1989[30] priced
the Voren tablets at P384.00 per bottle. The difference in price may then be attributed to
the different packaging used in each purchase order.
Assuming that there was an overcharge, the two purchase orders for the Voren tablets were
recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez
and approved by Vice President-General Manager Emma R. Co. The purchase orders
were silent as to Catolicos participation in the purchase. If the price increase was
objectionable to petitioners, they or their officers should have disapproved the
transaction. Consequently, petitioners had no one to blame for their predicament but
themselves. This set of facts emphasizes the exceedingly incredible situation proposed
by petitioners. Despite the memorandum warning Catolico not to negotiate with
suppliers of medicine, there was no proof that she ever transacted, or that she had the
opportunity to transact, with the said suppliers. Again, as the purchase orders indicate,
Catolico was not at all involved in the sale of the Voren tablets. There was no occasion
for Catolico to initiate, much less benefit from, what Valdez called an under the table
deal with YSP.
Catolicos dismissal then was obviously grounded on mere suspicion, which in no case can
justify an employees dismissal. Suspicion is not among the valid causes provided by
the Labor Code for the termination of employment;[31] and even the dismissal of an
employee for loss of trust and confidence must rest on substantial grounds and not on
the employers arbitrariness, whims, caprices, or suspicion.[32] Besides, Catolico was
not shown to be a managerial employee, to which class of employees the term trust and
confidence is restricted.[33]
As regards the constitutional violation upon which the NLRC anchored its decision, we find
no reason to revise the doctrine laid down in People vs. Marti[34] that the Bill of Rights
does not protect citizens from unreasonable searches and seizures perpetrated by
private individuals. It is not true, as counsel for Catolico claims, that the citizens have
no recourse against such assaults. On the contrary, and as said counsel admits, such
an invasion gives rise to both criminal and civil liabilities.
Finally, since it has been determined by the Labor Arbiter that Catolicos reinstatement would
not be to the best interest of the parties, he correctly awarded separation pay to
Catolico. Separation pay in lieu of reinstatement is computed at one months salary for
every year of service.[35] In this case, however, Labor Arbiter Lopez computed the
separation pay at one-half months salary for every year of service. Catolico did not
oppose or raise an objection. As such, we will uphold the award of separation pay as
fixed by the Labor Arbiter.

41 WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and
resolution of the National Labor Relations Commission dated 30 September 1993 and 2

December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as

to its reason for upholding the Labor Arbiters decision, viz., that the evidence against
private respondent was inadmissible for having been obtained in violation of her
constitutional rights of privacy of communication and against unreasonable searches
and seizures which is hereby set aside.
Costs against petitioners.
SO ORDERED.
EN BANC
[G.R. No. 135882. June 27, 2001]
LOURDES T. MARQUEZ, in her capacity as Branch Manager, Union Bank of the Philippines,
petitioners, vs. HON. ANIANO A. DESIERTO, (in his capacity as OMBUDSMAN,
Evaluation and Preliminary Investigation Bureau, Office of the Ombudsman, ANGEL C.
MAYOR-ALGO, JR., MARY ANN CORPUZ-MANALAC and JOSE T. DE JESUS, JR., in their
capacities as Chairman and Members of the Panel, respectively, respondents.
DECISION
PARDO, J.:
In the petition at bar, petitioner seeks to-a. Annul and set aside, for having been issued without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction, respondents order dated
September 7, 1998 in OMB-0-97-0411, In Re: Motion to Cite Lourdes T. Marquez for
indirect contempt, received by counsel of September 9, 1998, and their order dated
October 14, 1998, denying Marquezs motion for reconsideration dated September 10,
1998, received by counsel on October 20, 1998.
b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding
with the hearing of the motion to cite Marquez for indirect contempt, through the
issuance by this Court of a temporary restraining order and/or preliminary injunction.[1]
The antecedent facts are as follows:
Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A.
Desierto dated April 29, 1998, to produce several bank documents for purposes of
inspection in camera relative to various accounts maintained at Union Bank of the
Philippines, Julia Vargas Branch, where petitioner is the branch manager. The accounts
to be inspected are Account Nos. 011-37270, 240-020718, 245-30317-3 and 245-30318-1,
involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence
Bureau (FFIB) v. Amado Lagdameo, et. al. The order further states:
It is worth mentioning that the power of the Ombudsman to investigate and to require the
production and inspection of records and documents is sanctioned by the 1987
Philippine Constitution, Republic Act No. 6770, otherwise known as the Ombudsman Act
of 1989 and under existing jurisprudence on the matter. It must be noted that R. A. 6770
especially Section 15 thereof provides, among others, the following powers, functions
and duties of the Ombudsman, to wit:

(8) Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any
investigation or inquiry, including the power to examine and have access to bank
accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same procedure
and with the same penalties provided therein.
Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy
of Bank Deposits (R.A. 1405) and places the office of the Ombudsman in the same
footing as the courts of law in this regard.[2]
The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail of
managers checks purchased by one George Trivinio, a respondent in OMB-0-97-0411,
pending with the office of the Ombudsman.
It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for
a total amount of P272.1 Million at Traders Royal Bank, United Nations Avenue branch,
on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs
in the amount of P70.6 million, were deposited and credited to an account maintained at the
Union Bank, Julia Vargas Branch.[3]
On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and
Atty. Fe B. Macalino at the banks main office, Ayala Avenue, Makati City. The meeting
was for the purpose of allowing petitioner and Atty. Macalino to view the checks
furnished by Traders Royal Bank. After convincing themselves of the veracity of the
checks, Atty. Macalino advised Ms. Marquez to comply with the order of the
Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.[4]
However, on June 4, 1998, petitioner wrote the Ombudsman explaining to him that the
accounts in question cannot readily be identified and asked for time to respond to the
order. The reason forwarded by petitioner was that despite diligent efforts and from the
account numbers presented, we can not identify these accounts since the checks are
issued in cash or bearer. We surmised that these accounts have long been dormant,
hence are not covered by the new account number generated by the Union Bank system.
We therefore have to verify from the Interbank records archives for the whereabouts of
these accounts.[5]
The Ombudsman, responding to the request of the petitioner for time to comply with the
order, stated: firstly, it must be emphasized that Union Bank, Julia Vargas Branch was
the depositary bank of the subject Traders Royal Bank Managers Checks (MCs), as
shown at its dorsal portion and as cleared by the Philippine Clearing House, not the
International Corporate Bank.

42

Notwithstanding the fact that the checks were payable to cash or bearer, nonetheless, the
name of the depositor(s) could easily be identified since the account numbers x x x
where said checks were deposited are identified in the order.

Even assuming that the accounts xxx were already classified as dormant accounts, the
bank is still required to preserve the records pertaining to the accounts within a certain
period of time as required by existing banking rules and regulations.
And finally, the in camera inspection was already extended twice from May 13, 1998 to
June 3, 1998, thereby giving the bank enough time within which to sufficiently comply
with the order.[6]
Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the
bank documents relative to the accounts in issue. The order states:
Viewed from the foregoing, your persistent refusal to comply with Ombudsmans order is
unjustified, and is merely intended to delay the investigation of the case. Your act
constitutes disobedience of or resistance to a lawful order issued by this office and is
punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The same may also
constitute obstruction in the lawful exercise of the functions of the Ombudsman which is
punishable under Section 36 of R.A. 6770.[7]
On July 10, 1998, petitioner together with Union Bank of the Philippines, filed a petition for
declaratory relief, prohibition and injunction[8] with the Regional Trial Court, Makati City,
against the Ombudsman.
The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a
declaration of her rights from the court due to the clear conflict between R. A. No. 6770,
Section 15 and R. A. No. 1405, Sections 2 and 3.
Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and other
persons acting under his authority were continuously harassing her to produce the bank
documents relative to the accounts in question. Moreover, on June 16, 1998, the
Ombudsman issued another order stating that unless petitioner appeared before the
FFIB with the documents requested, petitioner manager would be charged with indirect
contempt and obstruction of justice.
In the meantime,[9] on July 14, 1998, the lower court denied petitioners prayer for a
temporary restraining order and stated thus:
After hearing the arguments of the parties, the court finds the application for a Temporary
Restraining Order to be without merit.
Since the application prays for the restraint of the respondent, in the exercise of his
contempt powers under Section 15 (9) in relation to paragraph (8) of R.A. 6770, known as
The Ombudsman Act of 1989, there is no great or irreparable injury from which
petitioners may suffer, if respondent is not so restrained. Respondent should he decide
to exercise his contempt powers would still have to apply with the court. x x x Anyone
who, without lawful excuse x x x refuses to produce documents for inspection, when
thereunto lawfully required shall be subject to discipline as in case of contempt of Court
and upon application of the individual or body exercising the power in question shall be
dealt with by the Judge of the First Instance (now RTC) having jurisdiction of the case in
a manner provided by law (section 580 of the Revised Administrative Code). Under the
present Constitution only judges may issue warrants, hence, respondent should apply

with the Court for the issuance of the warrant needed for the enforcement of his
contempt orders. It is in these proceedings where petitioners may question the propriety
of respondents exercise of his contempt powers. Petitioners are not therefore left
without any adequate remedy.
The questioned orders were issued with the investigation of the case of Fact-Finding and
Intelligence Bureau vs. Amado Lagdameo, et. el., OMB-0-97-0411, for violation of R.A.
3019. Since petitioner failed to show prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of
injunction may be issued by this Court to delay this investigation pursuant to Section 14
of the Ombudsman Act of 1989.[10]
On July 20, 1998, petitioner filed a motion for reconsideration based on the following
grounds:

The FFIB opposed the motion,[23] and on October 14, 1998, the Ombudsman denied the
motion by order the dispositive portion of which reads:
Wherefore, respondent Lourdes T. Marquezs motion for reconsideration is hereby DENIED,
for lack of merit. Let the hearing of the motion of the Fact Finding Intelligence Bureau
(FFIB) to cite her for indirect contempt be intransferrably set to 29 October 1998 at 2:00
oclock p.m. at which date and time she should appear personally to submit her
additional evidence. Failure to do so shall be deemed a waiver thereof.[24]
Hence, the present petition.[25]

Petitioners application for Temporary Restraining Order is not only to restrain the
Ombudsman from exercising his contempt powers, but to stop him from implementing
his Orders dated April 29,1998 and June 16,1998; and

The issue is whether petitioner may be cited for indirect contempt for her failure to produce
the documents requested by the Ombudsman. And whether the order of the Ombudsman
to have an in camera inspection of the questioned account is allowed as an exception to
the law on secrecy of bank deposits (R. A. No. 1405).

b. The subject matter of the investigation being conducted by the Ombudsman at petitioners
premises is outside his jurisdiction.[11]

An examination of the secrecy of bank deposits law (R. A. No. 1405) would reveal the
following exceptions:

On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory
relief[12] on the ground that the Regional Trial Court has no jurisdiction to hear a petition
for relief from the findings and orders of the Ombudsman, citing R. A. No. 6770, Sections
14 and 27. On August 7, 1998, the Ombudsman filed an opposition to petitioners motion
for reconsideration dated July 20, 1998.[13]

1. Where the depositor consents in writing;

On August 19, 1998, the lower court denied petitioners motion for reconsideration,[14] and
also the Ombudsmans motion to dismiss.[15]

4. Deposit is subject of litigation;

a.

On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed
with the Office of the Ombudsman by Agapito B. Rosales, Director, Fact Finding and
Intelligence Bureau (FFIB).[16]
On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite
her in contempt on the ground that the filing thereof was premature due to the petition
pending in the lower court.[17] Petitioner likewise reiterated that she had no intention to
disobey the orders of the Ombudsman. However, she wanted to be clarified as to how
she would comply with the orders without her breaking any law, particularly R. A. No.
1405.[18]
Respondent Ombudsman panel set the incident for hearing on September 7, 1998.[19] After
hearing, the panel issued an order dated September 7, 1998, ordering petitioner and
counsel to appear for a continuation of the hearing of the contempt charges against her.
[20]

43

with the Regional Trial Court, Makati City,[22] which would determine whether obeying
the orders of the Ombudsman to produce bank documents would not violate any law.

On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of
the above order.[21] Her motion was premised on the fact that there was a pending case

2. Impeachment case;
3. By court order in bribery or dereliction of duty cases against public officials;

5. Sec. 8, R. A. No. 3019, in cases of unexplained wealth as held in the case of PNB vs.
Gancayco[26]
The order of the Ombudsman to produce for in camera inspection the subject accounts with
the Union Bank of the Philippines, Julia Vargas Branch, is based on a pending
investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for
violation of R. A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement
between the Public Estates Authority and AMARI.
We rule that before an in camera inspection may be allowed, there must be a pending case
before a court of competent jurisdiction. Further, the account must be clearly identified,
the inspection limited to the subject matter of the pending case before the court of
competent jurisdiction. The bank personnel and the account holder must be notified to
be present during the inspection, and such inspection may cover only the account
identified in the pending case.
In Union Bank of the Philippines v. Court of Appeals, we held that Section 2 of the Law on
Secrecy of Bank Deposits, as amended, declares bank deposits to be absolutely
confidential except:

(1)

(2)

In an examination made in the course of a special or general examination of a

bank that is specifically authorized by the Monetary Board after being satisfied that there
is reasonable ground to believe that a bank fraud or serious irregularity has been or is
being committed and that it is necessary to look into the deposit to establish such fraud
or irregularity,
In an examination made by an independent auditor hired by the bank to conduct its
regular audit provided that the examination is for audit purposes only and the results
thereof shall be for the exclusive use of the bank,

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the
shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as
"the most comprehensive of rights and the right most valued by civilized men."[1]
Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption
of a National Computerized Identification Reference System" on two important
constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate,
and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant
the petition for the rights sought to be vindicated by the petitioner need stronger barriers
against further erosion.

(3) Upon written permission of the depositor,

(4) In cases of impeachment,
(5) Upon order of a competent court in cases of bribery or dereliction of duty of public
officials, or

"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

(6) In cases where the money deposited or invested is the subject matter of the litigation[27]

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to
conveniently transact business with basic service and social security providers and
other government instrumentalities;

In the case at bar, there is yet no pending litigation before any court of competent authority.
What is existing is an investigation by the office of the Ombudsman. In short, what the
Office of the Ombudsman would wish to do is to fish for additional evidence to formally
charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending
case in court which would warrant the opening of the bank account for inspection.

WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services on social security and reduce, if not totally eradicate,
fraudulent transactions and misrepresentations;

Zones of privacy are recognized and protected in our laws. The Civil Code provides that
"[e]very person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons" and punishes as actionable torts several acts for
meddling and prying into the privacy of another. It also holds a public officer or
employee or any private individual liable for damages for any violation of the rights and
liberties of another person, and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime of the violation of secrets by
an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the
Secrecy of Bank Deposits Act, and the Intellectual Property Code.[28]
IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and desist
from requiring Union Bank Manager Lourdes T. Marquez, or anyone in her place to
comply with the order dated October 14, 1998, and similar orders. No costs.
SO ORDERED.
EN BANC
[G.R. No. 127685. July 23, 1998]

44

A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and reads as
follows:

BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR

VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR
SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER
CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.
DECISION
PUNO, J.:

WHEREAS, a concerted and collaborative effort among the various basic services and social
security providing agencies and other government instrumentalities is required to
achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue
of the powers vested in me by law, do hereby direct the following:
SECTION 1. Establishment of a National Computerized Identification Reference System. A
decentralized Identification Reference System among the key basic services and social
security providers is hereby established.
SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee
(IACC) to draw-up the implementing guidelines and oversee the implementation of the
System is hereby created, chaired by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator, National Statistics Office Managing
Director, National Computer Center.

SEC. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat
to the IACC and as such shall provide administrative and technical support to the IACC.
SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the
NSO shall serve as the common reference number to establish a linkage among
concerned agencies. The IACC Secretariat shall coordinate with the different Social
Security and Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary,
in coordination with the National Statistics Office, the GSIS and SSS as lead agencies
and other concerned agencies shall undertake a massive tri-media information
dissemination campaign to educate and raise public awareness on the importance and
use of the PRN and the Social Security Identification Reference.

C.

Respondents counter-argue:
A.

THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A

JUDICIAL REVIEW;

B.

A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE
POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE
POWERS OF CONGRESS;

C.

THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION

REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;

D.

A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.[3]

SEC. 6. Funding. The funds necessary for the implementation of the system shall be sourced
from the respective budgets of the concerned agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular
reports to the Office of the President, through the IACC, on the status of implementation
of this undertaking.

THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE
CONSTITUTION."[2]

We now resolve.
I

SEC. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen
Hundred and Ninety-Six.

As is usual in constitutional litigation, respondents raise the threshold issues relating to the
standing to sue of the petitioner and the justiciability of the case at bar. More
specifically, respondents aver that petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be promulgated.

(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and
January 23, 1997. On January 24, 1997, petitioner filed the instant petition against
respondents, then Executive Secretary Ruben Torres and the heads of the government
agencies, who as members of the Inter-Agency Coordinating Committee, are charged
with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary
restraining order enjoining its implementation.
Petitioner contends:

45

"A.

THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE

SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS
OF THE REPUBLIC OF THE PHILIPPINES.

B.

THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE

IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished
member of our Senate. As a Senator, petitioner is possessed of the requisite standing to
bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative
power.[4] As taxpayer and member of the Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the misalignment of public funds and the
misuse of GSIS funds to implement A.O. No. 308.[5]
The ripeness for adjudication of the petition at bar is not affected by the fact that the
implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails
A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for
the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents
themselves have started the implementation of A.O. No. 308 without waiting for the
rules. As early as January 19, 1997, respondent Social Security System (SSS) caused
the publication of a notice to bid for the manufacture of the National Identification (ID)
card.[6] Respondent Executive Secretary Torres has publicly announced that
representatives from the GSIS and the SSS have completed the guidelines for the
national identification system.[7] All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we need not wait for the formality of the
rules to pass judgment on its constitutionality. In this light, the dissenters insistence
that we tighten the rule on standing is not a commendable stance as its result would be
to throttle an important constitutional principle and a fundamental right.

II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere
administrative order but a law and hence, beyond the power of the President to issue.
He alleges that A.O. No. 308 establishes a system of identification that is allencompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of
Congress is understandable. The blurring of the demarcation line between the power of
the Legislature to make laws and the power of the Executive to execute laws will disturb
their delicate balance of power and cannot be allowed. Hence, the exercise by one
branch of government of power belonging to another will be given a stricter scrutiny by
this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is
"the authority, under the Constitution, to make laws, and to alter and repeal them."[8]
The Constitution, as the will of the people in their original, sovereign and unlimited
capacity, has vested this power in the Congress of the Philippines.[9] The grant of
legislative power to Congress is broad, general and comprehensive.[10] The legislative
body possesses plenary power for all purposes of civil government.[11] Any power,
deemed to be legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere.[12] In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects and
extends to matters of general concern or common interest.[13]
While Congress is vested with the power to enact laws, the President executes the laws.[14]
The executive power is vested in the President.[15] It is generally defined as the power to
enforce and administer the laws.[16] It is the power of carrying the laws into practical
operation and enforcing their due observance.[17]
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and
employees of his department.[18] He has control over the executive department, bureaus
and offices. This means that he has the authority to assume directly the functions of the
executive department, bureau and office, or interfere with the discretion of its officials.
[19] Corollary to the power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order. Thus, he is
granted administrative power over bureaus and offices under his control to enable him
to discharge his duties effectively.[20]
Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs.[21] It enables the President to fix a uniform
standard of administrative efficiency and check the official conduct of his agents.[22] To
this end, he can issue administrative orders, rules and regulations.

46

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order. An administrative order is:

"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders."[23]
An administrative order is an ordinance issued by the President which relates to specific
aspects in the administrative operation of government. It must be in harmony with the
law and should be for the sole purpose of implementing the law and carrying out the
legislative policy.[24] We reject the argument that A.O. No. 308 implements the legislative
policy of the Administrative Code of 1987. The Code is a general law and "incorporates
in a unified document the major structural, functional and procedural principles of
governance"[25] and "embodies changes in administrative structures and procedures
designed to serve the people."[26] The Code is divided into seven (7) Books: Book I
deals with Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the President,
Book IV on the Executive Branch, Book V on the Constitutional Commissions, Book VI
on National Government Budgeting, and Book VII on Administrative Procedure. These
Books contain provisions on the organization, powers and general administration of the
executive, legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other constitutional
bodies, the rules on the national government budget, as well as guidelines for the
exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The
Code covers both the internal administration of government, i.e, internal organization,
personnel and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside
government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative
Code of 1987. It establishes for the first time a National Computerized Identification
Reference System. Such a System requires a delicate adjustment of various contending
state policies-- the primacy of national security, the extent of privacy interest against
dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr.
Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic rights of
our citizenry vis-a-vis the State as well as the line that separates the administrative
power of the President to make rules and the legislative power of Congress, it ought to
be evident that it deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it confers
no right, imposes no duty, affords no protection, and creates no office. Under A.O. No.
308, a citizen cannot transact business with government agencies delivering basic
services to the people without the contemplated identification card. No citizen will
refuse to get this identification card for no one can avoid dealing with government. It is
thus clear as daylight that without the ID, a citizen will have difficulty exercising his
rights and enjoying his privileges. Given this reality, the contention that A.O. No. 308
gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of administrative
legislation and consequently erodes the plenary power of Congress to make laws. This
is contrary to the established approach defining the traditional limits of administrative

legislation. As well stated by Fisher: "x x x Many regulations however, bear directly on
the public. It is here that administrative legislation must be restricted in its scope and
application. Regulations are not supposed to be a substitute for the general policymaking that Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and regulations is not
an independent source of power to make laws."[28]

the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector-- protection, in other words, of the dignity and integrity
of the individual--has become increasingly important as modern society has developed.
All the forces of a technological age --industrialization, urbanization, and organization-operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society.'"

III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass
constitutional muster as an administrative legislation because facially it violates the
right to privacy. The essence of privacy is the "right to be let alone."[29] In the 1965
case of Griswold v. Connecticut,[30] the United States Supreme Court gave more
substance to the right of privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which can be found within the
penumbras of the First, Third, Fourth, Fifth and Ninth Amendments,[31] viz:
"Specific guarantees in the Bill of Rights have penumbras formed by emanations from these
guarantees that help give them life and substance x x x. Various guarantees create zones
of privacy. The right of association contained in the penumbra of the First Amendment
is one, as we have seen. The Third Amendment in its prohibition against the quartering
of soldiers `in any house' in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the `right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen
to create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: `The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the
people.'"

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution.[33] It is expressly recognized in
Section 3(1) of the Bill of Rights:
"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law."
Other facets of the right to privacy are protected in various provisions of the Bill of Rights,
viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
x

In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
"xxx

47

x.

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may
be provided by law.

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the
right of privacy of married persons; rightfully it stressed "a relationship lying within the
zone of privacy created by several fundamental constitutional guarantees." It has wider
implications though. The constitutional right to privacy has come into its own.

x.

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition

independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is particularly apt: 'The
concept of limited government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited government. Ultimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which belongs to

Sec. 17. No person shall be compelled to be a witness against himself."

Sec. 8. The right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law shall not be
abridged.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides
that "[e]very person shall respect the dignity, personality, privacy and peace of mind of
his neighbors and other persons" and punishes as actionable torts several acts by a
person of meddling and prying into the privacy of another.[35] It also holds a public
officer or employee or any private individual liable for damages for any violation of the
rights and liberties of another person,[36] and recognizes the privacy of letters and other

private communications.[37] The Revised Penal Code makes a crime the violation of
secrets by an officer,[38] the revelation of trade and industrial secrets,[39] and trespass
to dwelling.[40] Invasion of privacy is an offense in special laws like the Anti-Wiretapping
Law,[41] the Secrecy of Bank Deposit Act[42] and the Intellectual Property Code.[43] The
Rules of Court on privileged communication likewise recognize the privacy of certain
information.[44]
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental
right guaranteed by the Constitution, hence, it is the burden of government to show that
A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn.
A.O. No. 308 is predicated on two considerations: (1) the need to provide our citizens
and foreigners with the facility to conveniently transact business with basic service and
social security providers and other government instrumentalities and (2) the need to
reduce, if not totally eradicate, fraudulent transactions and misrepresentations by
persons seeking basic services. It is debatable whether these interests are compelling
enough to warrant the issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put
our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference
Number (PRN) as a "common reference number to establish a linkage among concerned
agencies" through the use of "Biometrics Technology" and "computer application
designs."
Biometry or biometrics is "the science of the application of statistical methods to biological
facts; a mathematical analysis of biological data."[45] The term "biometrics" has now
evolved into a broad category of technologies which provide precise confirmation of an
individual's identity through the use of the individual's own physiological and behavioral
characteristics.[46] A physiological characteristic is a relatively stable physical
characteristic such as a fingerprint, retinal scan, hand geometry or facial features. A
behavioral characteristic is influenced by the individual's personality and includes voice
print, signature and keystroke.[47] Most biometric identification systems use a card or
personal identification number (PIN) for initial identification. The biometric measurement
is used to verify that the individual holding the card or entering the PIN is the legitimate
owner of the card or PIN.[48]

48

A most common form of biological encoding is finger-scanning where technology scans a

fingertip and turns the unique pattern therein into an individual number which is called a
biocrypt. The biocrypt is stored in computer data banks[49] and becomes a means of
identifying an individual using a service. This technology requires one's fingertip to be
scanned every time service or access is provided.[50] Another method is the retinal
scan. Retinal scan technology employs optical technology to map the capillary pattern of
the retina of the eye. This technology produces a unique print similar to a finger print.
[51] Another biometric method is known as the "artificial nose." This device chemically
analyzes the unique combination of substances excreted from the skin of people.[52]
The latest on the list of biometric achievements is the thermogram. Scientists have
found that by taking pictures of a face using infra-red cameras, a unique heat
distribution pattern is seen. The different densities of bone, skin, fat and blood vessels
all contribute to the individual's personal "heat signature."[53]

In the last few decades, technology has progressed at a galloping rate. Some science fictions
are now science facts. Today, biometrics is no longer limited to the use of fingerprint to
identify an individual. It is a new science that uses various technologies in encoding any
and all biological characteristics of an individual for identification. It is noteworthy that
A.O. No. 308 does not state what specific biological characteristics and what particular
biometrics technology shall be used to identify people who will seek its coverage.
Considering the banquet of options available to the implementors of A.O. No. 308, the
fear that it threatens the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it does not state
whether encoding of data is limited to biological information alone for identification
purposes. In fact, the Solicitor General claims that the adoption of the Identification
Reference System will contribute to the "generation of population data for development
planning."[54] This is an admission that the PRN will not be used solely for identification
but for the generation of other data with remote relation to the avowed purposes of A.O.
No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose other than the identification of
the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed
as the dissenters do. Pursuant to said administrative order, an individual must present
his PRN everytime he deals with a government agency to avail of basic services and
security. His transactions with the government agency will necessarily be recorded-whether it be in the computer or in the documentary file of the agency. The individual's
file may include his transactions for loan availments, income tax returns, statement of
assets and liabilities, reimbursements for medication, hospitalization, etc. The more
frequent the use of the PRN, the better the chance of building a huge and formidable
information base through the electronic linkage of the files.[55] The data may be
gathered for gainful and useful government purposes; but the existence of this vast
reservoir of personal information constitutes a covert invitation to misuse, a temptation
that may be too great for some of our authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to the name, address
and other basic personal information about the individual.[57] Even that hospitable
assumption will not save A.O. No. 308 from constitutional infirmity for again said order
does not tell us in clear and categorical terms how these information gathered shall be
handled. It does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to safeguard the
privacy and guaranty the integrity of the information.[58] Well to note, the computer
linkage gives other government agencies access to the information. Yet, there are no
controls to guard against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without fear of
sanction or penalty, can make use of the data for whatever purpose, or worse,
manipulate the data stored within the system.[59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal information
which will be gathered about our people will only be processed for unequivocally
specified purposes.[60] The lack of proper safeguards in this regard of A.O. No. 308 may
interfere with the individual's liberty of abode and travel by enabling authorities to track
down his movement; it may also enable unscrupulous persons to access confidential

information and circumvent the right against self-incrimination; it may pave the way for
"fishing expeditions" by government authorities and evade the right against
unreasonable searches and seizures.[61] The possibilities of abuse and misuse of the
PRN, biometrics and computer technology are accentuated when we consider that the
individual lacks control over what can be read or placed on his ID, much less verify the
correctness of the data encoded.[62] They threaten the very abuses that the Bill of
Rights seeks to prevent.[63]
The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier
on an individual and transmit it over a national network is one of the most graphic
threats of the computer revolution.[64] The computer is capable of producing a
comprehensive dossier on individuals out of information given at different times and for
varied purposes.[65] It can continue adding to the stored data and keeping the
information up to date. Retrieval of stored data is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with
other data on the subject.[66] Once extracted, the information is putty in the hands of
any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would
dismiss its danger to the right to privacy as speculative and hypothetical. Again, we
cannot countenance such a laidback posture. The Court will not be true to its role as the
ultimate guardian of the people's liberty if it would not immediately smother the sparks
that endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable
expectation of privacy with regard to the National ID and the use of biometrics
technology as it stands on quicksand. The reasonableness of a person's expectation of
privacy depends on a two-part test: (1) whether by his conduct, the individual has
exhibited an expectation of privacy; and (2) whether this expectation is one that society
recognizes as reasonable.[67] The factual circumstances of the case determines the
reasonableness of the expectation.[68] However, other factors, such as customs,
physical surroundings and practices of a particular activity, may serve to create or
diminish this expectation.[69] The use of biometrics and computer technology in A.O.
No. 308 does not assure the individual of a reasonable expectation of privacy.[70] As
technology advances, the level of reasonably expected privacy decreases.[71] The
measure of protection granted by the reasonable expectation diminishes as relevant
technology becomes more widely accepted.[72] The security of the computer data file
depends not only on the physical inaccessibility of the file but also on the advances in
hardware and software computer technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of privacy, regardless of technology
used, cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and
regulations merely implement the policy of the law or order. On its face, A.O. No. 308
gives the IACC virtually unfettered discretion to determine the metes and bounds of the
ID System.

49

Nor do our present laws provide adequate safeguards for a reasonable expectation of
privacy. Commonwealth Act No. 591 penalizes the disclosure by any person of data
furnished by the individual to the NSO with imprisonment and fine.[73] Republic Act No.

1161 prohibits public disclosure of SSS employment records and reports.[74] These
laws, however, apply to records and data with the NSO and the SSS. It is not clear
whether they may be applied to data with the other government agencies forming part of
the National ID System. The need to clarify the penal aspect of A.O. No. 308 is another
reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of
privacy by using the rational relationship test.[75] He stressed that the purposes of A.O.
No. 308 are: (1) to streamline and speed up the implementation of basic government
services, (2) eradicate fraud by avoiding duplication of services, and (3) generate
population data for development planning. He concludes that these purposes justify the
incursions into the right to privacy for the means are rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the constitutionality
of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure.
We declared that the law, in compelling a public officer to make an annual report
disclosing his assets and liabilities, his sources of income and expenses, did not
infringe on the individual's right to privacy. The law was enacted to promote morality in
public administration by curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the public service.[78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not
an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is
clear on what practices were prohibited and penalized, and it was narrowly drawn to
avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by a worthy
purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we
now hold that when the integrity of a fundamental right is at stake, this court will give
the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not
do for the authorities to invoke the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to prove that their act is not irrational
for a basic right can be diminished, if not defeated, even when the government does not
act irrationally. They must satisfactorily show the presence of compelling state interests
and that the law, rule, or regulation is narrowly drawn to preclude abuses. This
approach is demanded by the 1987 Constitution whose entire matrix is designed to
protect human rights and to prevent authoritarianism. In case of doubt, the least we can
do is to lean towards the stance that will not put in danger the rights protected by the
Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line. In Whalen, the
United States Supreme Court was presented with the question of whether the State of
New York could keep a centralized computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a doctor's prescription. The New York
State Controlled Substances Act of 1972 required physicians to identify patients
obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized
medical use but with a potential for abuse, so that the names and addresses of the
patients can be recorded in a centralized computer file of the State Department of Health.
The plaintiffs, who were patients and doctors, claimed that some people might decline
necessary medication because of their fear that the computerized data may be readily
available and open to public disclosure; and that once disclosed, it may stigmatize them
as drug addicts.[80] The plaintiffs alleged that the statute invaded a constitutionally
protected zone of privacy, i.e, the individual interest in avoiding disclosure of personal

matters, and the interest in independence in making certain kinds of important

decisions. The U.S. Supreme Court held that while an individual's interest in avoiding
disclosure of personal matters is an aspect of the right to privacy, the statute did not
pose a grievous threat to establish a constitutional violation. The Court found that the
statute was necessary to aid in the enforcement of laws designed to minimize the
misuse of dangerous drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommendation by a specially
appointed commission which held extensive hearings on the matter. Moreover, the
statute was narrowly drawn and contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and requirements for the gathering,
storage and retrieval of the information. It enumerated who were authorized to access
the data. It also prohibited public disclosure of the data by imposing penalties for its
violation. In view of these safeguards, the infringement of the patients' right to privacy
was justified by a valid exercise of police power. As we discussed above, A.O. No. 308
lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se
against the use of computers to accumulate, store, process, retrieve and transmit data to
improve our bureaucracy. Computers work wonders to achieve the efficiency which both
government and private industry seek. Many information systems in different countries
make use of the computer to facilitate important social objectives, such as better law
enforcement, faster delivery of public services, more efficient management of credit and
insurance programs, improvement of telecommunications and streamlining of financial
activities.[81] Used wisely, data stored in the computer could help good administration
by making accurate and comprehensive information for those who have to frame policy
and make key decisions.[82] The benefits of the computer has revolutionized
information technology. It developed the internet,[83] introduced the concept of
cyberspace[84] and the information superhighway where the individual, armed only with
his personal computer, may surf and search all kinds and classes of information from
libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions
into individual privacy. The right is not intended to stifle scientific and technological
advancements that enhance public service and the common good. It merely requires
that the law be narrowly focused[85] and a compelling interest justify such intrusions.
[86] Intrusions into the right must be accompanied by proper safeguards and welldefined standards to prevent unconstitutional invasions. We reiterate that any law or
order that invades individual privacy will be subjected by this Court to strict scrutiny.
The reason for this stance was laid down in Morfe v. Mutuc, to wit:

50

"The concept of limited government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited government. Ultimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector-- protection, in other words, of the dignity and integrity
of the individual-- has become increasingly important as modern society has developed.
All the forces of a technological age-- industrialization, urbanization, and organization-operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the

capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."[87]
IV
The right to privacy is one of the most threatened rights of man living in a mass society. The
threats emanate from various sources-- governments, journalists, employers, social
scientists, etc.[88] In the case at bar, the threat comes from the executive branch of
government which by issuing A.O. No. 308 pressures the people to surrender their
privacy by giving information about themselves on the pretext that it will facilitate
delivery of basic services. Given the record-keeping power of the computer, only the
indifferent will fail to perceive the danger that A.O. No. 308 gives the government the
power to compile a devastating dossier against unsuspecting citizens. It is timely to
take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his limitations. In a
way, the threat is that because of its record-keeping, the society will have lost its benign
capacity to forget."[89] Oblivious to this counsel, the dissents still say we should not be
too quick in labelling the right to privacy as a fundamental right. We close with the
statement that the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" declared null
and void for being unconstitutional.
SO ORDERED.
Freedom of Expression
EN BANC
[G.R. No. 133486. January 28, 2000]
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS,
respondent.
DECISION
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results through mass media constitute
an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot
ban them totally in the guise of promoting clean, honest, orderly and credible elections.
Quite the contrary, exit polls -- properly conducted and publicized -- can be vital tools in
eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may
be prescribed by the Comelec so as to minimize or suppress the incidental problems in
the conduct of exit polls, without transgressing in any manner the fundamental rights of
our people.
The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission
on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21, 1998. In the
said Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting such exit survey and to authorize
the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote
during the elections for national officials particularly for President and Vice President,
results of which shall be [broadcast] immediately."[2] The electoral body believed that
such project might conflict with the official Comelec count, as well as the unofficial
quick count of the National Movement for Free Elections (Namfrel). It also noted that it
had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner.
We directed the Comelec to cease and desist, until further orders, from implementing the
assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the
exit polls were actually conducted and reported by media without any difficulty or
problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with
grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved
the issuance of a restraining order enjoining the petitioner or any [other group], its
agents or representatives from conducting exit polls during the x x x May 11
elections."[3]
In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to
seek a reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition[5] is meritorious.
Procedural Issues: Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11,
1998 election has already been held and done with. Allegedly, there is no longer any
actual controversy before us.

51

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11,
1998 election, its implications on the people's fundamental freedom of expression
transcend the past election. The holding of periodic elections is a basic feature of our
democratic government. By its very nature, exit polling is tied up with elections. To set

aside the resolution of the issue now will only postpone a task that could well crop up
again in future elections.[6]
In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines,
or rules. It has the symbolic function of educating bench and bar on the extent of
protection given by constitutional guarantees."[7] Since the fundamental freedoms of
speech and of the press are being invoked here, we have resolved to settle, for the
guidance of posterity, whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's
failure to exhaust available remedies before the issuing forum, specifically the filing of a
motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed
over to prevent a miscarriage of justice,[8] when the issue involves the principle of
social justice or the protection of labor,[9] when the decision or resolution sought to be
set aside is a nullity,[10] or when the need for relief is extremely urgent and certiorari is
the only adequate and speedy remedy available.[11]
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998,
only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy
thereof only on May 4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift resolution in time for the
May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court through a special civil
action for certiorari is therefore justified.
Main Issue: Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of an election by
confidentially asking randomly selected voters whom they have voted for, immediately
after they have officially cast their ballots. The results of the survey are announced to
the public, usually through the mass media, to give an advance overview of how, in the
opinion of the polling individuals or organizations, the electorate voted. In our electoral
history, exit polls had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member
of the mass media, committed to report balanced election-related data, including "the
exclusive results of Social Weather Station (SWS) surveys conducted in fifteen
administrative regions."
It argues that the holding of exit polls and the nationwide reporting of their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely
abused its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was
"pursuant to its constitutional and statutory powers to promote a clean, honest, orderly
and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy
and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly
confuse and influence the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the
contents of ballots," in violation of Section 2, Article V of the Constitution;[12] and
relevant provisions of the Omnibus Election Code.[13] It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to regulation by the State in
the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a
"clear and present danger of destroying the credibility and integrity of the electoral
process," considering that they are not supervised by any government agency and can
in general be manipulated easily. He insists that these polls would sow confusion among
the voters and would undermine the official tabulation of votes conducted by the
Commission, as well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus
be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban
exit polls? In answering this question, we need to review quickly our jurisprudence on
the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a higher level than substantive economic or
other liberties. x x x [T]his must be so because the lessons of history, both political and
legal, illustrate that freedom of thought and speech is the indispensable condition of
nearly every other form of freedom."[14]
Our Constitution clearly mandates that no law shall be passed abridging the freedom of
speech or of the press.[15] In the landmark case Gonzales v. Comelec,[16] this Court
enunciated that at the very least, free speech and a free press consist of the liberty to
discuss publicly and truthfully any matter of public interest without prior restraint.

52

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the

truth, of securing participation by the people in social and political decision-making, and
of maintaining the balance between stability and change.[17] It represents a profound
commitment to the principle that debates on public issues should be uninhibited, robust,
and wide open.[18] It means more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, or to take refuge in the
existing climate of opinion on any matter of public consequence. And paraphrasing the
eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the
thought we hate, no less than the thought we agree with.

Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and
unrestrained at all times and under all circumstances.[20] They are not immune to
regulation by the State in the exercise of its police power.[21] While the liberty to think is
absolute, the power to express such thought in words and deeds has limitations.
In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests in
determining the validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the comment or
utterance must be 'extremely serious and the degree of imminence extremely high'
before the utterance can be punished. The danger to be guarded against is the
'substantive evil' sought to be prevented. x x x"[23]
"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as follows: If the
words uttered create a dangerous tendency which the state has a right to prevent, then
such words are punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if
the natural tendency and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent."[24]
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in
its earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of
Manila;[26] as well as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v.
Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni Cristo v.
MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine,
the Court echoed the words of justice Holmes: "The question in every case is whether
the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree."[32]
A limitation on the freedom of expression may be justified only by a danger of such
substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers
to the time element; the danger must not only be probable but very likely to be
inevitable.[33] The evil sought to be avoided must be so substantive as to justify a clamp
over one's mouth or a restraint of a writing instrument.[34]
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be
presumed; rather the presumption is against its validity.[35] And it is respondent's

burden to overthrow such presumption. Any act that restrains speech should be greeted
with furrowed brows,[36] so it has been said.

ever present. In other words, the exit poll has a clear and present danger of destroying
the credibility and integrity of the electoral process."

To justify a restriction, the promotion of a substantial government interest must be clearly

shown.[37] Thus:

Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as
much as possible be representative or reflective of the general sentiment or view of the
community or group polled. Second, the survey result is not meant to replace or be at
par with the official Comelec count. It consists merely of the opinion of the polling group
as to who the electorate in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here are the credibility and the
integrity of the elections, which are exercises that are separate and independent from
the exit polls. The holding and the reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of the latter. If at all, the outcome of
one can only be indicative of the other.

"A government regulation is sufficiently justified if it is within the constitutional power of the
government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest."[38]
Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly, stifle fundamental personal liberties, when the end can
be more narrowly achieved.[39]
The freedoms of speech and of the press should all the more be upheld when what is sought
to be curtailed is the dissemination of information meant to add meaning to the equally
vital right of suffrage.[40] We cannot support any ruling or order "the effect of which
would be to nullify so vital a constitutional right as free speech."[41] When faced with
borderline situations in which the freedom of a candidate or a party to speak or the
freedom of the electorate to know is invoked against actions allegedly made to assure
clean and free elections, this Court shall lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate should not be
antagonistic. There can be no free and honest elections if, in the efforts to maintain
them, the freedom to speak and the right to know are unduly curtailed.[42]
True, the government has a stake in protecting the fundamental right to vote by providing
voting places that are safe and accessible. It has the duty to secure the secrecy of the
ballot and to preserve the sanctity and the integrity of the electoral process. However, in
order to justify a restriction of the people's freedoms of speech and of the press, the
state's responsibility of ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research
data which may be used to study influencing factors and trends in voting behavior. An
absolute prohibition would thus be unreasonably restrictive, because it effectively
prevents the use of exit poll data not only for election-day projections, but also for longterm research.[43]

The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder
and confusion in the voting centers -- does not justify a total ban on them. Undoubtedly,
the assailed Comelec Resolution is too broad, since its application is without
qualification as to whether the polling is disruptive or not.[44] Concededly, the Omnibus
Election Code prohibits disruptive behavior around the voting centers.[45] There is no
showing, however, that exit polls or the means to interview voters cause chaos in voting
centers. Neither has any evidence been presented proving that the presence of exit poll
reporters near an election precinct tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based
on the voters' answers to the survey questions will forever remain unknown and
unexplored. Unless the ban is restrained, candidates, researchers, social scientists and
the electorate in general would be deprived of studies on the impact of current events
and of election-day and other factors on voters' choices.
In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was
unconstitutional because such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they might indirectly affect the
voters' choices is impermissible, so is regulating speech via an exit poll restriction.[47]

Comelec Ban on Exit Polling

53

In the case at bar, the Comelec justifies its assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and
peaceful election. While admitting that "the conduct of an exit poll and the broadcast of
the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress
freedom may be curtailed if the exercise thereof creates a clear and present danger to
the community or it has a dangerous tendency." It then contends that "an exit poll has
the tendency to sow confusion considering the randomness of selecting interviewees,
which further make[s] the exit poll highly unreliable. The probability that the results of
such exit poll may not be in harmony with the official count made by the Comelec x x x is

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave
open any alternative channel of communication to gather the type of information
obtained through exit polling. On the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept
at a reasonable distance from the voting center. They may be required to explain to
voters that the latter may refuse to be interviewed, and that the interview is not part of

the official balloting process. The pollsters may further be required to wear distinctive
clothing that would show they are not election officials.[48] Additionally, they may be
required to undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general prohibition of
disruptive behavior, could ensure a clean, safe and orderly election.
For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities
are randomly selected in each province; (2) residences to be polled in such communities
are also chosen at random; (3) only individuals who have already voted, as shown by the
indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any
sort; (5) the poll results are released to the public only on the day after the elections.[49]
These precautions, together with the possible measures earlier stated, may be
undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling
the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption
is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the
media and the electorate. Quite the contrary, instead of disrupting elections, exit polls -properly conducted and publicized -- can be vital tools for the holding of honest, orderly,
peaceful and credible elections; and for the elimination of election-fixing, fraud and other
electoral ills.

EN BANC
[G.R. No. 147571. May 5, 2001]
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN
PUBLISHING
CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION
ON ELECTIONS, respondent.
DECISION
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and publicly
reporting the results thereof. On the other hand, petitioner Kamahalan Publishing
Corporation publishes the Manila Standard, a newspaper of general circulation, which
features newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections from
enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Violation of Ballot Secrecy

Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to
the ballots cast by the voters. The ballot system of voting is not at issue here.

The term election surveys is defined in 5.1 of the law as follows:

The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official
ballots to other persons, from making copies thereof, or from putting distinguishing
marks thereon so as to be identified. Also proscribed is finding out the contents of the
ballots cast by particular voters or disclosing those of disabled or illiterate voters who
have been assisted. Clearly, what is forbidden is the association of voters with their
respective votes, for the purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential disclosure to a pollster of
whom they have voted for.

54

SO ORDERED.

Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidates popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as
Survey).
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may
also choose not to reveal their identities. Indeed, narrowly tailored countermeasures
may be prescribed by the Comelec, so as to minimize or suppress incidental problems in
the conduct of exit polls, without transgressing the fundamental rights of our people.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of
the elections both at the national and local levels and release to the media the results of
such survey as well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish election survey results
up to the last day of the elections on May 14, 2001.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419
issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE.
No costs.

Petitioners argue that the restriction on the publication of election survey results constitutes
a prior restraint on the exercise of freedom of speech without any clear and present
danger to justify such restraint. They claim that SWS and other pollsters conducted and
published the results of surveys prior to the 1992, 1995, and 1998 elections up to as
close as two days before the election day without causing confusion among the voters

and that there is neither empirical nor historical evidence to support the conclusion that
there is an immediate and inevitable danger to the voting process posed by election
surveys. They point out that no similar restriction is imposed on politicians from
explaining their opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be denied
access to the results of election surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the period proscribed by
law bears a rational connection to the objective of the law, i.e., the prevention of the
debasement of the electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the evils sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not prohibit election survey
results but only require timeliness. Respondent claims that in National Press Club v.
COMELEC,[1] a total ban on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour, was
upheld by this Court. In contrast, according to respondent, it states that the prohibition
in 5.4 of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by
prohibiting the publication of election survey results affecting candidates within the
prescribed periods of fifteen (15) days immediately preceding a national election and
seven (7) days before a local election. Because of the preferred status of the
constitutional rights of speech, expression, and the press, such a measure is vitiated by
a weighty presumption of invalidity.[2] Indeed, any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its constitutional
validity. . . . The Government thus carries a heavy burden of showing justification for the
enforcement of such restraint.[3] There is thus a reversal of the normal presumption of
validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of invalidity attaches to a
measure like 5.4. For as we have pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to
ensuring equal opportunity, time, space, and the right to reply as well as uniform and
reasonable rates of charges for the use of such media facilities for public information
campaigns and forums among candidates.[4] This Court stated:

55

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity

among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press.[5]
MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present
danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v.
COMELEC,[6] this test was originally formulated for the criminal law and only later
appropriated for free speech cases. Hence, while it may be useful for determining the
validity of laws dealing with inciting to sedition or incendiary speech, it may not be
adequate for such regulations as the one in question. For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing free speech,
which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and
balancing the circumstances to determine whether public interest [in free, orderly,
honest, peaceful and credible elections] is served by the regulation of the free enjoyment
of the rights (page 7). After canvassing the reasons for the prohibition, i.e., to prevent
last-minute pressure on voters, the creation of bandwagon effect to favor candidates,
misinformation, the junking of weak and losing candidates by their parties, and the
form of election cheating called dagdag-bawas and invoking the States power to
supervise media of information during the election period (pages 11-16), the dissenting
opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen
that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and when
they are most susceptible to such unwarranted persuasion. These surveys may be
published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh
the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As
already stated, the purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and
space and the right of reply, including reasonable, equal rates therefor for public
information campaigns and forums among candidates. Hence the validity of the ban on
media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now
allows candidates to advertise their candidacies in print and broadcast media. Indeed,
to sustain the ban on the publication of survey results would sanction the censorship of
all speaking by candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters and thus debase the
electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves
freedom of speech, expression, and the press with little protection. For anyone who can
bring a plausible justification forward can easily show a rational connection between the
statute and a legitimate governmental purpose. In contrast, the balancing of interest
undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent
in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A.

No. 4880, which limited the period of election campaign and partisan political activity,
was an unconstitutional abridgment of freedom of expression.

be upheld only if the expression falls within one of the few unprotected categories dealt
with in Chaplinsky v. New Hampshire,[12] thus:

Nor can the ban on election surveys be justified on the ground that there are other countries
78, according to the Solicitor General, while the dissent cites 28 which similarly
impose restrictions on the publication of election surveys. At best this survey is
inconclusive. It is noteworthy that in the United States no restriction on the publication
of election survey results exists. It cannot be argued that this is because the United
States is a mature democracy. Neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia,
Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no
older nor more mature than the Philippines in political development, do not restrict the
publication of election survey results.

There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or
fighting words those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order and morality.

What test should then be employed to determine the constitutional validity of 5.4? The
United States Supreme Court, through Chief Justice Warren, held in United States v.
OBrien:
[A] government regulation is sufficiently justified [1] if it is within the constitutional power of
the Government; [2] if it furthers an important or substantial governmental interest; [3] if
the governmental interest is unrelated to the suppression of free expression; and [4] if
the incidental restriction on alleged First Amendment freedoms [of speech, expression
and press] is no greater than is essential to the furtherance of that interest.[8]
This is so far the most influential test for distinguishing content-based from content-neutral
regulations and is said to have become canonical in the review of such laws.[9] It is
noteworthy that the OBrien test has been applied by this Court in at least two cases.[10]
Under this test, even if a law furthers an important or substantial governmental interest, it
should be invalidated if such governmental interest is not unrelated to the suppression
of free expression. Moreover, even if the purpose is unrelated to the suppression of free
speech, the law should nevertheless be invalidated if the restriction on freedom of
expression is greater than is necessary to achieve the governmental purpose in
question.

Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v.
Minnesota,[13] it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the limitation
has been recognized only in exceptional cases. . . . No one would question but that a
government might prevent actual obstruction to its recruiting service or the publication
of the sailing dates of transports or the number and location of troops. On similar
grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements to
acts of violence and the overthrow by force of orderly government . . . .
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be
justified on the ground that it is only for a limited period and is only incidental. The
prohibition may be for a limited time, but the curtailment of the right of expression is
direct, absolute, and substantial. It constitutes a total suppression of a category of
speech and is not made less so because it is only for a period of fifteen (15) days
immediately before a national election and seven (7) days immediately before a local
election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be
valid in National Press Club v. COMELEC[14] and Osmea v. COMELEC.[15] For the ban
imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional
provision,[16] but it also provided an alternative so that, as this Court pointed out in
Osmea, there was actually no ban but only a substitution of media advertisements by
the COMELEC space and COMELEC hour.

Our inquiry should accordingly focus on these two considerations as applied to 5.4.

56

First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of
expression to the asserted governmental interest makes such interest not unrelated to
the suppression of free expression. By prohibiting the publication of election survey
results because of the possibility that such publication might undermine the integrity of
the election, 5.4 actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper columnists,
radio and TV commentators, armchair theorists, and other opinion makers. In effect,
5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal
opinion to statistical results. The constitutional guarantee of freedom of expression
means that the government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.[11] The inhibition of speech should

Second. Even if the governmental interest sought to be promoted is unrelated to the

suppression of speech and the resulting restriction of free expression is only incidental,
5.4 nonetheless fails to meet criterion [4] of the OBrien test, namely, that the restriction
be not greater than is necessary to further the governmental interest. As already stated,
5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon
effect, junking of weak or losing candidates, and resort to the form of election
cheating called dagdag-bawas. Praiseworthy as these aims of the regulation might be,
they cannot be attained at the sacrifice of the fundamental right of expression, when
such aim can be more narrowly pursued by punishing unlawful acts, rather than speech
because of apprehension that such speech creates the danger of such evils. Thus, under
the Administrative Code of 1987,[17] the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous,
misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus survey results calculated to mislead
voters. Candidates can have their own surveys conducted. No right of reply can be
invoked by others. No principle of equality is involved. It is a free market to which each
candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects,
it is doubtful whether the Government can deal with this natural-enough tendency of
some voters. Some voters want to be identified with the winners. Some are susceptible
to the herd mentality. Can these be legitimately prohibited by suppressing the
publication of survey results which are a form of expression? It has been held that
[mere] legislative preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be insufficient to justify
such as diminishes the exercise of rights so vital to the maintenance of democratic
institutions.[18]
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression
even though such suppression is only for a limited period, and (3) the governmental
interest sought to be promoted can be achieved by means other than the suppression of
freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its
decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The
flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is
a decision, order, or resolution within the meaning of Art. IX-A, 7. Indeed, counsel for
COMELEC maintains that Resolution 3636 was rendered by the Commission.
However, the Resolution does not purport to adjudicate the right of any party. It is not an
exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To
the contrary, Resolution 3636 clearly states that it is promulgated to implement the
provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim that this
petition for prohibition is inappropriate. Prohibition has been found appropriate for
testing the constitutionality of various election laws, rules, and regulations.[19]
WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of
COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional.

On the one hand are the freedoms of speech and of the press, which, as often stated, are
accorded a preferred status in our constitutional hierarchy,[1] essential as they are to
preservation and vitality of our civil and political institutions.[2] The primacy, the high
estate of these freedoms is a fundamental postulate of our constitutional system.[3]
On the other hand, the Constitution requires the State to guarantee equal access to
opportunities for public service,[4] and mandates Congress to provide a system for
securing the secrecy and sanctity of the ballot.[5] The States interest in holding free,
orderly, honest, peaceful and credible elections[6] cannot be denied.
At the heart of the controversy is Section 5.4 of Republic Act No. 9006,[7] otherwise known as
the Fair Election Act,[8] which states that:
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.
Surveys, as used above, pertain to election surveys, which in Section 5 thereofxxx refer to the measurement of opinions and perceptions of the voters as regards a
candidates popularity, qualifications, platforms or a matter of public discussion in
relation to the election, including voters preference for candidates or publicly discussed
issues during the campaign period. xxx
The Fair Election Act was signed into law by the President on February 12, 2001. Pursuant to
its authority under Section 13 thereof, the Commission on Elections (COMELEC) on
March 1, 2001 promulgated through Resolution No. 3636 the Implementing Rules and
Regulations of the Fair Election Act. Section 24 of the implementing rules is a verbatim
reproduction of Section 5.4.
Petitioners contend that the subject provisions violate the freedoms of speech and of the
press enshrined in Section 4, Article III of the Constitution thus:
No law shall be passed abridging the freedom of speech, of expression, or of the press xxx.
As publisher of a newspaper, Kamahalan maintains that its right to freedom of the press is
unduly infringed by section 5.4. Insofar as publication (of surveys) is a component of
the freedom of speech, the freedom of SWS is also purportedly severely restricted.

SO ORDERED.

DISSENTING OPINIONS
KAPUNAN, J.:

57

Two seemingly conflicting rights or interests, both integral to our democratic system, are
involved in this case.

Although among our most cherished rights, the freedoms of speech and of the press are not
absolute or unlimited. In certain instances, this Court has allowed the regulation of the
exercise of these freedoms vis-a-vis election-related laws. In Osmena vs. Commission
on Elections[9] and National Press Club vs. Commission on Elections,[10] the law
prohibiting newspapers, radio broadcasting and television station from selling or giving
free of charge print space or air time for campaign or other political purposes was
declared valid. In Badoy vs. Commission of Elections,[11] the prohibition on the
publication of paid political advertisements outside the COMELEC space was likewise
upheld. In Gonzales vs. Commission on Elections,[12] where the prohibition on the early
nomination of candidates and the limitation on the period of election campaign or
partisan political activity under Republic Act No. 4880 was assailed for being violative of

the freedoms of speech, of the free press, of assembly and of association, the Court
declared the law not unconstitutional.
Courts have employed certain tests to determine the validity of restrictions on the rights to
free speech and free press. The dangerous tendency rule provided that the State has
the power to proscribe and punish speech which creates a dangerous tendency which
the State has a right to prevent.[13] This formulation, however, had long been
abandoned in the United States as well as in this jurisdiction.
The clear and present danger rule postulates that the question in every case is whether the
words are used in such circumstances and are of such nature as to create a clear an
present danger that they will bring about the substantive evils that Congress has the
right to prevent.[14] This rule has been applied in our jurisdiction in a number of cases.
[15]
Nevertheless, Associate Justice Fred Ruiz Castro, Later Chief Justice, in his separate opinion
in Gonzales vs. Commission on Elections,[16] expressed the view that in determining the
constitutionality of Republic Act No. 4880 assailed therein, another approach, the socalled balancing-of-interests test, was more appropriate. He observed:
However useful the clear and present danger formulation was in the appraisal of a specific
type of situation, there is fairly extensive recognition that it is not a rule of universal
applicability and validity, not an automatic mechanism that relives a court of the need for
careful scrutiny of the features of a given situation and evaluation of the competing
interests involved.[17]
Justice Castro cited American Communications Association v. Douds,[18] where the
balancing-of-interests test was supplied. In said case, the United States Supreme
Court stated that in suggesting that the substantive evil must be serious and
substantial, it was never the intention of [the U.S. Supreme Court] to lay down an
absolutist test measured in terms of danger to the Nation.[19] Chief Justice Vinzons,
expounded:
When a particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is
to determine which of the two conflicting interests demands the greater protection under
the particular circumstances presented. xxx In essence, the problem is one of weighing
the probable effects of the statute upon the free exercise of the right of speech and
assembly against the congressional determination xxx We must, therefore, undertake
the delicate and difficult task xxx to weigh the circumstances and to appraise the
substantiality of the reasons advance in support of the regulation of the free enjoyment
of the rights.[20]
The test is further explained thus:

58

The theory of balance of interests represents a wholly pragmatic approach to the problem of
First Amendment freedom, indeed, to the whole problem of constitutional interpretation.
It rests on the theory that it is the Courts function in the case before it when it finds
public interests served by legislation on the one hand, and First Amendment freedoms
affected by it on the other, to balance the one against the other and to arrive at a

judgment where the greater weight shall be place. If on balance it appears that public
interest served by restrictive legislation is of such character that it outweighs the
abridgment of freedom, then the court will find the legislation valid. In short, the
balance-of-interests theory rests on the basis that constitutional freedoms are not
absolute, not even those stated in the First Amendment, and that they may be abridged
to some extent to serve appropriate and important public interests.[21]
In Zaldivar vs. Sandiganbayan,[22] this Court reiterated that the clear-and-present danger test
was not a cure-all to freedom of speech controversies:
The clear and present danger doctrine, which test is invoked by respondents counsel is not
a magic incantation which dissolves all problems and dispenses with analysis and
judgment in the testing of the legitimacy of claims to free speech, and which compels a
court to exonerate a defendant the moment the doctrine is invoked, absent proof of
impending apocalypse. The Clear and present danger doctrine has been an accepted
method for marking out the appropriate limits of freedom of speech and of assembly in
certain contexts. It is not, however, the only test which has been recognized and applied
by courts.[23]
Zaldivar cited the case of Lagunzad vs. Soto Vda. De Gonzales,[24] where the Court also
referred to the shortcomings of the clear-and-present doctrine noted by Justice Castro in
Gonzales. Justice Melencio-Herrera further wrote:
xxx Another criterion for permissible limitation on freedom of speech and of the press, which
includes such vehicles of the mass media as radio, television and the movies, is the
balancing-of-interests test. The principle requires a court to take conscious and
detailed consideration of the interplay of interests observable in a given situation or type
of situation.[25] [Citations omitted.]
It is my considered opinion that given the apparent conflict between petitioners rights of
speech and press rights enshrined in the Constitution, and the inherent power of
Congress to legislate on matters public interest and welfare, and in pursuance of the
constitutional policy of ensuring of free, orderly, honest, peaceful and credible
elections, it is ultimately this Courts function and duty to undertake the delicate and
difficult task of weighing and balancing the circumstances to determine whether public
interest is served by the regulation of the free enjoyment of the rights.
I believe that Congress did not exceed constitutional limitations in enacting Section 5.4.
Indisputably, the State has a legitimate interest in fostering an informed electorate.[26] It has a
compelling interest in protecting voters from confusion and undue influence[27] and,
generally, in preserving the integrity of its election process.[28] In furtherance of these
State interests, Congress is empowered to enact laws relative to the conduct of
elections. It may not only regulate the time, manner and place of the holding of the
elections but may likewise regulate the election campaigns and other activities relative
thereto.[29]
In enacting the Fair Election Act, Congress declared that the State shall, during the election
period, supervise or regulate the enjoyment or utilization of all franchises or permits for
the operation of media of communication or information to guarantee or ensure equal

opportunity for public service, including access to media time and space, and the
equitable right to reply for public information campaigns and fora among candidates and
assure free, orderly, honest, peaceful and credible elections.[30] Further, said law aims
to ensure that bona fide candidates for any public office shall be free from any form of
harassment and discrimination.[31]
Towards these ends, Section 5.4 was incorporated specifically to prevent the evils brought
about by election surveys published immediately before an election. The deliberations
on the Senate Floor are revealing:
Adverting to the bill of Senator Tatad, Senator Defensor Santiago said that the country has no
law regulating the conduct of surveys and the activities of survey stations and private
groups particularly those relating to political opinions. She said that some Western
countries prohibit political opinion polls or surveys for certain periods before elections
to avoid last minute pressure on voters as politicians and political parties often cause
the conduct and dissemination of surveys to advance their political interests.
She informed the body that the Internet reported on a worldwide survey on the publication of
poll results prior to elections where 30 of the 78 countries surveyed apply legal
restrictions on the publication of public opinion survey results comprising an embargo
prior to general elections, which ranges from 24 hours to six weeks before an election.
She said that among the reasons for the government restrictions cited by the Internet
survey were protecting the integrity of the democratic process, the rights of privacy and
national security considerations.
According to the report, she said, some countries in recent years have prolonged their
embargo periods for example, Italy, from seven to 28 days; Canada, from no ban to
three days; and Chile, from one to seven days while other countries have shortened or
withdrawn their embargoes for example, Croatia, from three days to 24 hours;
Colombia, from 10 to seven days; and Argentina, from two weeks to no ban.
In this connection, Senator Defensor Santiago asked whether Senator Roco would consider
an amendment providing for the criteria for the publication of opinion surveys as she
expressed fear that an opinion survey firm might work diligently for some time in order
to establish a reputation for credibility and then, at the ultimate hour, sell its services to
the highest bidder.
Senator Roco recalled that earlier in the session, he had discussed with senator Defensor
Santiago and some senators the idea of not just lifting the ban on election propaganda
but also of giving fair protection to candidates, especially from the unfairness of
reporting certain survey results during the campaign period. He added that the
committee had been studying the rule in the United States where poll surveyors mention
who authorized and paid for the survey, and what method was used, and furnish raw
data to anybody who feels aggrieved by the poll results. He agreed that there must be a
period when surveys should not be published because they influence elections through
self-fulfilling predictions.

59

However, Senator Roco expressed concern that a full-blown debate on another issue might
impede the approval of the bill, although he welcomed an amendment which would
create a balance of fair reporting and fair opportunity for candidates.

Senator Defensor Santiago warned that the fate of the countrys leadership should not be left
in the hands of survey firms which are not accountable to the people and possess no
amount of sovereign power. Additionally, she expressed resentment that a public official
like herself should be treated like a can of sardines because poll surveys have reduced
political life to a mere matter of appearances.
Senator Roco commented that all professions which deal with communications are aware that
the way a question is put can influence the answer; the more simplistic question can
give rise to a host of interpretations. On the other hand, he said, it is a matter of public
interest if there is an attempt to measure validity or acceptability of issues; still, full
disclosure and transparency should apply to poll surveyors and to all who try to
promote and protect public welfare.[32]
The original proposal was a 30-day restriction on the publication of surveys. Senator Flavier
suggested the deletion of the restriction,[33] while Senator Osmea was amenable to a
shorter period of 3 days.[34] Senators Roco and Defensor-Santiago vigorously opposed
the deletion. Senator Roco said that:
x x x the committee cannot accept the deletion of the prohibition as he observed that in the
Philippines, the bandwagon effect is part of campaign planning. He recalled that in 1969,
the influence of propaganda was so evident: every single pole or space was plastered
with "Marcos-Lopez" posters and for the duration of the one-year campaign period, the
newspapers kept on repeating that Marcos-Lopez was unbeatable that after a while, the
people believed it. He explained that it is the publication and not the conduct of surveys
that would be prohibited in this Act. However, he pointed out that the surveys would be
useful to senatorial candidates, especially those who wish to land in the top six slots,
because their names would be repeatedly mentioned on TV so that the voters might be
influenced to vote for them. He said that candidates particularly those who do not have
access to TV and radio have no money to influence publications should be given equal
break during the 30-day period. He appealed the Members to support the committee's
position.[35]
Senator Defensor-Santiago concurred with Senator Roco:
x x x She pointed out that at the start of the debate, the Body was of the consensus that the
operating principles of the bill should be equality and impartiality. She opined that these
principles would be violated if the Body would delete the prohibition. Moreover, she
argued that a political neophyte who deserves exposure because of his honesty,
competence and efficiency would probably not be in the winning circle until the crucial
decisive few days before the election. She said that the publication of a survey at any
point earlier than that would be detrimental to the candidate and to national interest. She
expressed support for Senator Roco's appeal to maintain the present provision. She
said that the freedom of expression in a constitutional dimension was not relevant to the
discussion because a candidate who can afford it can ask any agency to conduct a
survey; however, out of compelling national interest in the Philippine culture context, the
State prohibits the publication of surveys within a certain period so as to avoid
manipulating the minds of the electorate and to preserve the principle of equality and
impartiality.[36]

Eventually, the position of Senators Roco and Defensor-Santiago prevailed[37] although, after
the Bicameral Conference, the original 30-day limitation was reduced to 15 days with
respect to surveys affecting national candidates.
Evidently, Congress found that the publication of surveys within the prohibited period
inordinately works against candidates who are shown to be "losing. The assailed
provision thus seeks to avert the "bandwagon effect" supposedly caused by the
publication of election surveys. The bandwagon effect results when a voter opts for a
candidate or candidates whom the surveys reveal as the leading contender or
contenders, the voter believing, rightly or wrongly, that the candidate or candidates
whom the voter actually prefers would lose anyway, as indicated in the surveys. The
bandwagon effect produces more votes for the "winning" candidate ordained as such by
the surveys and less votes for the "losing" candidate. Surveys add to the prospects of
the "winner" and lessen that of the "loser," who is thereby deprived of an equal
opportunity to get elected. Hence, the surveys take the form of a self-fulfilling prophecy.
Ideally, a citizen ought to vote for a candidate based on the latter's personal qualifications and
platform for governance. This is the ideal that the law aims to achieve; surveys
published during the prescribed period before the elections have been deemed by
Congress to frustrate this objective.
The prospect of misinformation magnifies the dangers of the bandwagon effect. There is
nothing to prevent unscrupulous interests from procuring the services of an enterprise
masquerading as a "credible" research institution to conduct "surveys" with
predetermined results, and cause their publication. Worse, there is nothing to prevent
the simple publication of entirely false results. The evil of the bandwagon effect caused
by election surveys, whether absolutely accurate or utterly untrue, is further enhanced
by the pervasiveness of media. Advances in technology have widened the electorate's
access to both information and, regrettably, to misinformation.
It may be argued that propaganda portraying a candidate as possessing certain virtues or
espousing certain causes, regardless of the truth of these claims, also influence the
voter in making his or her choice. The distinction lies in that a survey lulls the voter into
thinking that the election is over but the counting, and that his vote for a losing
candidate would not matter in the end. While election propaganda expressly urge the
voter to choose a candidate because of his qualifications and causes, the surveys,
clothed with the mantle of statistics and couched in esoteric terminology, implicitly urge
the voter to choose a candidate because of his popularity. This persuasive effect is
unique to surveys; it is a feature absent in election propaganda.
This congressional concern regarding the bandwagon effect is supported by a study cited by
the Solicitor General:

60

It is noteworthy that it is easier to translate voting intentions into potential seats in a twoparty system than in a multi-party arrangement. The accuracy of election polls is also
determined by actual voter turnout; pre-election surveys can sometimes be out of date
by the time they are reported. x x x. Last, polls can present an opportunity for deliberate
misrepresentation or connivance by those who publish survey results; many examples
of this practice by political parties have been cited. Advocacy groups seeking to
influence the public agenda can also commission polls for public release and may draft

questions to support their case or point of view. In short, public opinion surveys are
blunt instruments of prediction and are susceptible to many forms of error.
Opponents of political polling point to notable failures like the predicted victories of Landon
over Roosevelt in 1936, of Dewey over Truman in 1948, and of Wilson over Heath in
Britain in 1970. Most pollsters considered the outcome of the 1980 presidential election
in the United States too close to call, yet Ronald Reagan won by a landslide. The 1992
surprise victory of the Conservatives over Labour in Britain is another similar example. x
xx
THE IMPACT OF POLLING ON THE ELECTORAL PROCESS
A. Direct Effects
Because polls are generally perceived to be accurate and scientific, the debate on polling
centres largely whether it undermines the democratic process by influencing electoral
behaviour and election results. Some political strategists and observers argue that the
publication of polls gives an unfair advantage to parties or candidates whose fortunes
are seen to be improving. The so-called "bandwagon" effect assumes that knowledge of
a popular "tide" will likely change voting intentions in favour of the frontrunner, that
many electors feel more comfortable supporting a popular choice or that people accept
the perceived collective wisdom of others as being enough reason for supporting a
candidate.
The bandwagon phenomenon, however, is dismissed by those who argue that voters do not
pay much attention to poll results in the first place, that not everyone believes them, and
that it is not important for everyone to be on the winning side. Furthermore, while some
voters may want to be on the victorious side, at least a few will rally to support the
expected loser out of sympathy - the so-called "underdog" effect - which would cancel
out or annul any shifts in preference.
Although academics in the United States have long been divided over the impact of published
polls on the outcome of elections, recent research supports the proposition that their
publication can influence a close election, with the most impact occurring late in a
campaign. Recent studies in Canada also support the notion that polls published during
political campaigns can create the "politics of expectations," a situation that stimulates
the bandwagon effect and promotes "strategic voting," in which voting is influenced by
the chances of winning. For example, citizens may cast ballots for their second-choice
candidate who appears to have a better chance than the first choice of defeating a
disliked candidate or party. Such behaviour is said to be increasing in Canada as close
three-party races become more common. It is therefore argued that voters making such
strategic choices have every right to expect that the results of opinion surveys are
scientifically valid.[38]
The same study also pointed out other "indirect effects" of surveys published during the
election period, that it detracts from the "real" issues of the election and affects a
candidate's momentum:
B. Indirect Effects

The indirect effects of polls during elections may be as important as their possible direct
influence. Because of the multiplicity of published surveys and the attention they receive
from the media, some charge that polls detract from discussion of the "real" issues.
Indeed, many describe news coverage of Canadian elections as being analogous to that
of a sporting event or "horse-race," with serious analysis of the issues or investigation
into areas of voter concern being largely ignored. The media's emphasis on who is
winning and who is losing (as well as on the campaign "style" of leaders and their
parties) may also result in so-called "leader-fixation." As one scholar explains:
Polls conducted throughout the campaign . . . focus on leadership in an attempt to predict the
outcome of the election and to explain it in terms of leader appeal. The polls are
presented as measures to gauge how the leaders' campaigns are fairing. In this sense
the media coverage misrepresents the political system, narrows the focus of public
debate, and denigrates political leaders and institutions.[39]
The deliberations during the Bicameral Conference also intimate another purpose in passing
the challenged provisions, that is, to prevent the nefarious election scheme known as
"dagdag-bawas." Dagdag-bawas, a phenomenon peculiar to Philippine elections, takes
place when votes cast in favor of one candidate are deducted then credited to another.
Senator Roco also observed that last-minute surveys generate "junking" of candidates
at the tail end of the surveys by their very own party-mates or supporters.
CHAIRMAN ROCO. I do not want to say it that way. I only said, that if you will target people to
campaign against, you will target people who are outside 1 to 6 because it is a waste of
time to try to drag No. 6 down to 13. Legitimate campaign.
Mapababa mo man ang No.1, umabot ng no. 6, he or she still occupies one post. Hindi
nawawala. Ang tatargetin mo, 9, 10, 11, parang junking doon sa sample ballots
mawawala yong mga mabababa because yon ang puedeng mawala. Yong 1 to 6 or 1 to
8, ang hirap-hirap nang tanggalin.
So, in your sample ballots you don't care. Sa sample ballots, kung sa surveys 10, 11, 12, eh,
lalo kung 12, naku, candidate 'yon for disappearance. Yon ang mga napapalitan ang mga
favorite. Hindi ba? Sa Bicol tanggal yon. Ang lalabas doon Bicolano lang. Di ba? Kung
mahina-hina ang No.12, tanggal na yon. Mahina-hina ang No.11, tanggal na yon sa mga
regions. Every region has its own favorite. Papasok na sa sample ballots. Walang
dayaan yon. But you will not try to eliminate somebody who is impossible to eliminate.
What is your interest? Loren is No.1, so, she becomes No.3. Who cares! Maybe, she's a
bit unhappy. But she is still senator, you see![40]

pollsters or survey groups controlled by vested interests to manipulate the survey

results. It is conceded that Sections 5.2 and 5.3 affords interested parties an opportunity
to examine and analyze the published surveys and to refute or confirm their accuracy.
However, these regulations lose their efficacy during the period contemplated by Section
5.4 because said interested parties would no longer have adequate time to test the
veracity of said surveys, especially if they are published, say, a day before the elections.
[42]
Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen
that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and when
they are most susceptible to such unwarranted persuasion. These surveys may be
published thereafter.
Our electoral system and processes are not necessarily of the same level of political maturity
that countries like the United States and other more developed countries have attained.
It is noteworthy that numerous other countries recognized the deleterious effects on the
electoral process by the publication of surveys immediately before the elections.
Accordingly, they impose similar restrictions, although varying as to the periods: Turkey
and Luxembourg, 30 days; South Africa, 42 days; Italy, 28 days; Indonesia, 21 days;
Peru, Venezuela and Uruguay, 15 days; Poland, 12 days; France, Hungary, Portugal,
Switzerland, Chile, Columbia and Mexico, 7 days; Spain, 5 days; Russia, Australia and
Bolivia, 2 days; Fiji, New Zealand, Armenia, Belarus, Bulgaria, Croatia, Khazakstan and
Lithuania, 1 day.[43]
The reasons advanced in support of Section 5.4, far from being matters of mere legislative
preferences or beliefs regarding the evils sought to be remedied, sufficiently justify the
restriction on such vital rights as the freedoms of speech and of the press. It bears
stressing that it is Congress, not this Court, which his primarily charged with the
determination of the need for regulation of such activities. Thus, insofar as the need for
regulation of the publication of election surveys within the periods laid down in Section
5.4 is concerned, this Court is in no position to substitute its judgment as to the
necessity or desirability of the same for that of Congress.[44]
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition.
SECOND DIVISION

Senator Legarda-Leviste also expressed that "it is the fear of some of the other senators that
because they are perceived to be the last three or four slot occupants and they could be
the target of a 'dagdag-bawas.'[41]

61

That the law, in Sections 5.2 and 5.3, prescribes certain requirements in the publication of
surveys and allows the inspection thereof do not suffice to thwart the dangers sought to
be avoided by Section 5.4. Election surveys are more in demand as the elections draw
closer. The reason is obvious. The public rating of the candidates shifts from time to
time over the months. But a survey taken very close to the election might be taken as
indicative of a firm and final tally of the results, giving more motive to fly-by-night

NEWSOUNDS BROADCASTING
NETWORK INC. and CONSOLIDATED
BROADCASTING SYSTEM, INC.,
Petitioners,

G.R. Nos. 170270 &

179411
Present:

- versus -

QUISUMBING,
Chairperson,
CARPIO MORALES,

HON. CEASAR G. DY, FELICISIMO

G. MEER, BAGNOS MAXIMO, RACMA
FERNANDEZ-GARCIA and THE CITY
OF CAUAYAN,
Respondents.

TINGA,
VELASCO, JR., and
PERALTA, JJ.*

Promulgated:
April 2, 2009

x---------------------------------------------------------------------------------------x
DECISION
TINGA, J.:
Whenever the force of government or any of its political subdivisions bears upon to
close down a private broadcasting station, the issue of free speech infringement cannot
be minimized, no matter the legal justifications offered for the closure. In many respects,
the present petitions offer a textbook example of how the constitutional guarantee of
freedom of speech, expression and of the press may be unlawfully compromised.
Tragically, the lower courts involved in this case failed to recognize or assert the
fundamental dimensions, and it is our duty to reverse, and to affirm the Constitution and
the most sacred rights it guarantees.
Before us are two petitions for review involving the same parties, the cases having been
consolidated by virtue of the Resolution of this Court dated 16 June 2008.[1] Both
petitions emanated from a petition for mandamus[2] filed with the Regional Trial Court
(RTC) of Cauayan City docketed as Special Civil Action No. Br. 20-171, the petition
having been dismissed in a Decision dated 14 September 2004 by the Cauayan City RTC,
Branch 20.[3] Consequently, petitioners filed with the Court of Appeals a petition for
certiorari under Rule 65 and an appeal to the RTC decision. The appellate court ruled
against petitioners in both instances. The petition in G.R. No. 170270 assails the 27
October 2005 decision of the Court of Appeals in CA-G.R. SP No. 87815,[4] while the
petition in G.R. 179411 assails the 30 May 2007 decision of the Court of Appeals in C.A.G.R. SP No. 88283.[5]
I.

62

Bombo Radyo Philippines (Bombo Radyo) operates several radio stations under the AM and
FM band throughout the Philippines. These stations are operated by corporations
organized and incorporated by Bombo Radyo, particularly petitioners Newsounds
Broadcasting Network, Inc. (Newsounds) and Consolidated Broadcasting System, Inc.
(CBS). Among the stations run by Newsounds is Bombo Radyo DZNC Cauayan
(DZNC), an AM radio broadcast station operating out of Cauayan City, Isabela. CBS, in
turn, runs Star FM DWIT Cauayan (Star FM), also operating out of Cauayan City, airing
on the FM band. The service areas of DZNC and Star FM extend from the province of
Isabela to throughout Region II and the Cordillera region.[6]

In 1996, Newsounds commenced relocation of its broadcasting stations, management

office and transmitters on property located in Minante 2, Cauayan City, Isabela. The
property is owned by CBS Development Corporation (CDC), an affiliate corporation
under the Bombo Radyo network which holds title over the properties used by Bombo
Radyo stations throughout the country.[7] On 28 June 1996, CDC was issued by the then
municipal government of Cauayan a building permit authorizing the construction of a
commercial establishment on the property.[8] On 5 July 1996, the Housing and Land Use
Regulatory Board (HLURB) issued a Zoning Decision certifying the property as
commercial.[9] That same day, the Office of the Municipal Planning and Development
Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be
constructed by CDC conformed to local zoning regulations, noting as well that the
location is classified as a Commercial area.[10] Similar certifications would be issued
by OMPDC from 1997 to 2001.[11]
A building was consequently erected on the property, and therefrom, DZNC and Star FM
operated as radio stations. Both stations successfully secured all necessary operating
documents, including mayors permits from 1997 to 2001.[12] During that period, CDC
paid real property taxes on the property based on the classification of the land as
commercial.[13]
All that changed beginning in 2002. On 15 January of that year, petitioners applied for the
renewal of the mayors permit. The following day, the City Assessors Office in Cauayan
City noted on CDCs Declaration of Real Property filed for 2002 confirmed that based on
the existing file, CDCs property was classified as commercial.[14] On 28 January,
representatives of petitioners formally requested then City Zoning AdministratorDesignate Bagnos Maximo (Maximo) to issue a zoning clearance for the property.[15]
Maximo, however, required petitioners to submit either an approved land conversion
papers from the Department of Agrarian Reform (DAR) showing that the property was
converted from prime agricultural land to commercial land, or an approved resolution
from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the reclassification of the property from agricultural to commercial land.[16] Petitioners had
never been required to submit such papers before, and from 1996 to 2001, the OMPDC
had consistently certified that the property had been classified as commercial.
Due to this refusal by Maximo to issue the zoning clearance, petitioners were unable to
secure a mayors permit. Petitioners filed a petition for mandamus[17] with the Regional
Trial Court (RTC) of Cauayan City to compel the issuance of the 2002 mayors permit.
The case was raffled to Branch 19 of the Cauayan City RTC. When the RTC of Cauayan
denied petitioners accompanying application for injunctive relief, they filed a special
civil action for certiorari with the Court of Appeals,[18] but this would be dismissed by
the appellate court due to the availability of other speedy remedies with the trial court. In
February of 2003, the RTC dismissed the mandamus action for being moot and
academic.[19]
In the meantime, petitioners sought to obtain from the DAR Region II Office a formal
recognition of the conversion of the CDC property from agricultural to commercial. The
matter was docketed as Adm. Case No. A-0200A-07B-002. Then DAR Region II Director
Abrino L. Aydinan (Director Aydinan) granted the application and issued an Order that
stated that there remains no doubt on the part of this Office of the non-agricultural
classification of subject land before the effectivity of Republic Act No. 6657 otherwise

known as the Comprehensive Agrarian Reform Law of 1988.[20] Consequently, the DAR
Region II Office ordered the formal exclusion of the property from the Comprehensive
Agrarian Reform Program, and the waiver of any requirement for formal clearance of the
conversion of the subject land from agricultural to non-agricultural use.[21]
On 16 January 2003, petitioners filed their applications for renewal of mayors permit for the
year 2003, attaching therein the DAR Order. Their application was approved. However, on
4 March 2003, respondent Felicisimo Meer, Acting City Administrator of Cauayan City,
wrote to petitioners claiming that the DAR Order was spurious or void, as the Regional
Center for Land Use Policy Planning and Implementation (RCLUPPI) supposedly
reported that it did not have any record of the DAR Order. A series of correspondences
followed wherein petitioners defended the authenticity of the DAR Order and the
commercial character of the property, while respondent Meer demanded independent
proof showing the authenticity of the Aydinan Order. It does not appear though that any
action was taken against petitioners by respondents in 2003, and petitioners that year
paid realty taxes on the property based on the classification that said property is
commercial.[22]
The controversy continued into 2004. In January of that year, petitioners filed their respective
applications for their 2004 mayors permit, again with the DAR Order attached to the
same. A zonal clearance was issued in favor of petitioners. Yet in a letter dated 13
January 2004, respondent Meer claimed that no record existed of DAR Adm. Case No. A0200A-07B-002 with the Office of the Regional Director of the DAR or with the RCLUPPI.
[23] As a result, petitioners were informed that there was no basis for the issuance in
their favor of the requisite zoning clearance needed for the issuance of the mayors
permit.[24]
Another series of correspondences ensued between Meer and the station manager of DZNC,
Charmy Sabigan (Sabigan). Sabigan reiterated the authenticity of the DAR Order and the
commercial character of the property, while Meer twice extended the period for
application of the mayors permit, while reminding them of the need to submit the
certifications from the DAR or the Sangguniang Panlalawigan that the property had been
duly converted for commercial use.

63

The deadline for application for the mayors permit lapsed on 15 February 2004, despite
petitioners plea for another extension. On 17 February 2004, respondents Meer and
Racma Fernandez-Garcia, City Legal Officer of Cauayan City, arrived at the property and
closed the radio stations. Petitioners proceeded to file a petition with the Commission on
Elections (COMELEC) seeking enforcement of the Omnibus Election Code, which
prohibited the closure of radio stations during the then-pendency of the election period.
On 23 March 2004, the COMELEC issued an order directing the parties to maintain the
status prevailing before 17 February 2004, thus allowing the operation of the radio
stations, and petitioners proceeded to operate the stations the following day. Within
hours, respondent Mayor Ceasar Dy issued a Closure Order dated 24 March 2004, stating
therein that since petitioners did not have the requisite permits before 17 February 2004,
the status quo meant that the stations were not in fact allowed to operate.[25] Through
the intervention of the COMELEC, petitioners were able to resume operation of the
stations on 30 March 2004. On 9 May 2004, or two days before the general elections of
that year, the COMELEC denied the petition filed by petitioners and set aside the status
quo order.[26] However, this Resolution was reconsidered just 9 days later, or on 16 May

2004, and the COMELEC directed the maintenance of the status quo until 9 June 2004,
the date of the end of the election period.
Petitioners were thus able to continue operations until 10 June 2004, the day when
respondents yet again closed the radio stations. This closure proved to be more
permanent.
By this time, the instant legal battle over the sought-after mayors permits had already been
well under way. On 15 April 2004, petitioners filed a petition for mandamus, docketed as
SCA No. 20-171, with the RTC of Cauayan City, Branch 20. The petition was accompanied
by an application for the issuance of temporary restraining order and writ of preliminary
prohibitory injunction, both provisional reliefs being denied by the RTC through an
Order dated 20 April 2004. Respondents duly filed an Answer with Counterclaims on 3
May 2004. Due to the aforementioned closure of the radio stations on 10 June 2004,
petitioners filed with the RTC a Motion for the Issuance of a Writ of Preliminary
Mandatory Injunction dated 15 June 2004, praying that said writ be issued to allow
petitioners to resume operations of the radio stations. No hearing would be conducted
on the motion, nor would it be formally ruled on by the RTC.
On 14 September 2004, the RTC rendered a Decision denying the petition for mandamus.[27]
The RTC upheld all the arguments of the respondents, including their right to deny the
sought after mayors permit unless they were duly satisfied that the subject property has
been classified as commercial in nature. The Decision made no reference to the
application for a writ of preliminary mandatory injunction. Petitioners filed a motion for
reconsideration,[28] citing the trial courts failure to hear and act on the motion for
preliminary mandatory injunction as a violation of the right to due process, and
disputing the RTCs conclusions with respect to their right to secure the mayors permit.
This motion was denied in an Order dated 1 December 2004.
Petitioners initiated two separate actions with the Court of Appeals following the rulings of
the RTC. On 13 December 2004, they filed a Petition for Certiorari under Rule 65,
docketed as CA G.R. No. 87815, raffled to the Fourteenth Division.[29] This petition
imputed grave abuse of discretion on the part of the RTC for denying their application
for preliminary mandatory injunction. On the same day, petitioners also filed a Notice of
Appeal with the RTC, this time in connection with the denial of their petition for
mandamus. This appeal was docketed as CA G.R. SP No. 88283 and raffled to the
Eleventh Division.
Petitioners lost both of their cases with the Court of Appeals. On 27 October 2005, the Court
of Appeals in CA G.R. No. 87815 dismissed the Petition for Certiorari, ruling that the RTC
did not commit any grave abuse of discretion in impliedly denying the application for
preliminary mandatory injunction. On 30 May 2007, the Court of Appeals in CA-G.R. SP
No. 88283 denied the appeal by certiorari, affirming the right of the respondents to deny
petitioners their mayors permits. On both occasions, petitioners filed with this Court
respective petitions for review under Rule 45 the instant petitions, now docketed as
G.R. Nos. 170270 and 179411.
On 23 January 2006, the Court in G.R. No. 170270 issued a writ of preliminary injunction,
enjoining respondents from implementing the closure order dated March 24, 2005, or
otherwise interfering with the operations of Bombo Radyo DZNC Cauayan (NBN) and

STAR FM DWIT Cauayan (CBS) in Cauayan City until final orders from this Court.[30]
On 21 January 2008, the Court resolved to consolidate G.R. No. 170270 with G.R. No.
179411, which had been initially dismissed outright but was reinstated on even date.[31]

airwaves. An elementary school child with a basic understanding of civics lessons will
recognize that free speech animates these cases.
Without taking into account any extenuating circumstances that may favor the
respondents, we can identify the bare acts of closing the radio stations or preventing
their operations as an act of prior restraint against speech, expression or of the press.
Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination.[38] While any system of
prior restraint comes to court bearing a heavy burden against its constitutionality,[39]
not all prior restraints on speech are invalid.[40]

Certiorari lies in both instances.

II.
The fundamental constitutional principle that informs our analysis of both petitions is
the freedom of speech, of expression or the press.[32] Free speech and free press may
be identified with the liberty to discuss publicly and truthfully any matter of public
interest without censorship and punishment. There is to be no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a clear and
present danger of substantive evil that Congress has a right to prevent.[33]
Petitioners have taken great pains to depict their struggle as a textbook case of denial
of the right to free speech and of the press. In their tale, there is undeniable political
color. They admit that in 2001, Bombo Radyo was aggressive in exposing the
widespread election irregularities in Isabela that appear to have favored respondent Dy
and other members of the Dy political dynasty.[34] Respondent Ceasar Dy is the brother
of Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in his re-election
bid in 2004 by Grace Padaca, a former assistant station manager at petitioners own
DZNC Bombo Radyo.[35] A rival AM radio station in Cauayan City, DWDY, is owned and
operated by the Dy family.[36] Petitioners likewise direct our attention to a 20 February
2004 article printed in the Philippine Daily Inquirer where Dy is quoted as intending to
file disenfranchisement proceedings against DZNC-AM.[37]
The partisan component of this dispute will no doubt sway many observers towards one
opinion or the other, but not us. The comfort offered by the constitutional shelter of free
expression is neutral as to personality, affinity, ideology and popularity. The judges
tasked to enforce constitutional order are expected to rule accordingly from the comfort
of that neutral shelter.
Still, it cannot be denied that our Constitution has a systemic bias towards free speech.
The absolutist tenor of Section 4, Article III testifies to that fact. The individual
discomforts to particular people or enterprises engendered by the exercise of the right,
for which at times remedies may be due, do not diminish the indispensable nature of free
expression to the democratic way of life.

64

The following undisputed facts bring the issue of free expression to fore. Petitioners are
authorized by law to operate radio stations in Cauayan City, and had been doing so for
some years undisturbed by local authorities. Beginning in 2002, respondents in their
official capacities have taken actions, whatever may be the motive, that have impeded
the ability of petitioners to freely broadcast, if not broadcast at all. These actions have
ranged from withholding permits to operate to the physical closure of those stations
under color of legal authority. While once petitioners were able to broadcast freely, the
weight of government has since bore down upon them to silence their voices on the

Nonetheless, there are added legal complexities to these cases which may not be
necessarily accessible to the layperson. The actions taken by respondents are colored
with legal authority, under the powers of local governments vested in the Local
Government Code (LGC), or more generally, the police powers of the State. We do not
doubt that Local Government Units (LGU) are capacitated to enact ordinances requiring
the obtention of licenses or permits by businesses, a term defined elsewhere in the LGC
as trade or commercial activity regularly engaged in as a means of livelihood or with a
view to profit.
And there is the fact that the mode of expression restrained in these cases broadcast is
not one which petitioners are physically able to accomplish without interacting with the
regulatory arm of the government. Expression in media such as print or the Internet is
not burdened by such requirements as congressional franchises or administrative
licenses which bear upon broadcast media. Broadcast is hampered by its utilization of
the finite resources of the electromagnetic spectrum, which long ago necessitated
government intervention and administration to allow for the orderly allocation of
bandwidth, with broadcasters agreeing in turn to be subjected to regulation. There is no
issue herein that calls into question the authority under law of petitioners to engage in
broadcasting activity, yet these circumstances are well worth pointing out if only to
provide the correct perspective that broadcast media enjoys a somewhat lesser degree
of constitutional protection than print media or the Internet.
It emerges then that there exists tension between petitioners right to free expression, and
respondents authority by law to regulate local enterprises. What are the rules of
adjudication that govern the judicial resolution of this controversy?
B.
That the acts imputed against respondents constitute a prior restraint on the freedom of
expression of respondents who happen to be members of the press is clear enough.
There is a long-standing tradition of special judicial solicitude for free speech, meaning
that governmental action directed at expression must satisfy a greater burden of
justification than governmental action directed at most other forms of behavior.[41] We
had said in SWS v. COMELEC: Because of the preferred status of the constitutional
rights of speech, expression, and the press, such a measure is vitiated by a weighty
presumption of invalidity. Indeed, any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its constitutional validity. . . . The
Government 'thus carries a heavy burden of showing justification for the enforcement of

such restraint. There is thus a reversal of the normal presumption of validity that
inheres in every legislation.[42]
At the same time, jurisprudence distinguishes between a content-neutral regulation, i.e.,
merely concerned with the incidents of the speech, or one that merely controls the time,
place or manner, and under well defined standards; and a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the utterance or speech.
[43] Content-based laws are generally treated as more suspect than content-neutral laws
because of judicial concern with discrimination in the regulation of expression.[44]
Content-neutral regulations of speech or of conduct that may amount to speech, are
subject to lesser but still heightened scrutiny.[45]
Ostensibly, the act of an LGU requiring a business of proof that the property from which it
operates has been zoned for commercial use can be argued, when applied to a radio
station, as content-neutral since such a regulation would presumably apply to any other
radio station or business enterprise within the LGU.
However, the circumstances of this case dictate that we view the action of the
respondents as a content-based restraint. In their petition for mandamus filed with the
RTC, petitioners make the following relevant allegations:
6.1.

With specific reference to DZNC, Newsounds, to this date, is engaged in discussing

public issues that include, among others, the conduct of public officials that are
detrimental to the constituents of Isabela, including Cauayan City. In view of its wide
coverage, DZNC has been a primary medium for the exercise of the people of Isabela of
their constitutional right to free speech. Corollarily, DZNC has always been at the
forefront of the struggle to maintain and uphold freedom of the press, and the peoples
corollary right to freedom of speech, expression and petition the government for redress
of grievances.

35.3. The timing of respondents closure of petitioners radio stations is also very telling. The
closure comes at a most critical time when the people are set to exercise their right of
suffrage. Such timing emphasizes the ill motives of respondents.[47]

In their Answer with Comment[48] to the petition for mandamus, respondents admitted
that petitioners had made such exposes during the 2001 elections, though they denied
the nature and truthfulness of such reports.[49] They conceded that the Philippine Daily
Inquirer story reported that Dy said he planned to file disenfranchisement proceedings
against [DZNC]-AM.[50] While respondents assert that there are other AM radio stations
in Isabela, they do not specifically refute that station DWDY was owned by the Dy family,
or that DZNC and DWDY are the two only stations that operate out of Cauayan.[51]
Prior to 2002, petitioners had not been frustrated in securing the various local government
requirements for the operation of their stations. It was only in the beginning of 2002,
after the election of respondent Ceasar Dy as mayor of Cauayan, that the local
government started to impose these new requirements substantiating the conversion of
CDCs property for commercial use. Petitioners admit that during the 2001 elections,
Bombo Radyo was aggressive in exposing the widespread election irregularities in
Isabela that appear to have favored Respondent Dy and other members of the Dy
political dynasty.[52] Respondents efforts to close petitioners radio station clearly
intensified immediately before the May 2004 elections, where a former employee of
DZNC Bombo Radyo, Grace Padaca, was mounting a credible and ultimately successful
challenge against the incumbent Isabela governor, who happened to be the brother of
respondent Dy. It also bears notice that the requirements required of petitioners by the
Cauayan City government are frankly beyond the pale and not conventionally adopted by
local governments throughout the Philippines.

6.2. Newsounds only rival AM station in Cauayan and the rest of Isabela, DWDY, is owned and
operated by the family of respondent Dy.[46]

All those circumstances lead us to believe that the steps employed by respondents to
ultimately shut down petitioners radio station were ultimately content-based. The United
States Supreme Court generally treats restriction of the expression of a particular point
of view as the paradigm violation of the First Amendment.[53] The facts confronting us
now could have easily been drawn up by a constitutional law professor eager to provide
a plain example on how free speech may be violated.

xxxx
35. Respondents closure of petitioners radio stations is clearly tainted with ill motives.

65

35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in
exposing the widespread election irregularities in Isabela that appear to have favored
respondent Dy and other members of the Dy political dynasty. It is just too coincidental
that it was only after the 2001 elections (i.e., 2002) that the Mayors Office started
questioning petitioners applications for renewal of their mayors permits.
35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004, respondent Dy
was quoted as saying that he will disenfranchise the radio station. Such statement
manifests and confirms that respondents denial of petitioners renewal applications on
the ground that the Property is commercial is merely a pretext and that their real agenda
is to remove petitioners from Cauayan City and suppress the latters voice. This is a
blatant violation of the petitioners constitutional right to press freedom.
A copy of the newspaper article is attached hereto as Annex JJ.

The Court is of the position that the actions of the respondents warrant heightened or strict
scrutiny from the Court, the test which we have deemed appropriate in assessing
content-based restrictions on free speech, as well as for laws dealing with freedom of
the mind or restricting the political process, of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as expansion from its earlier
applications to equal protection.[54] The immediate implication of the application of the
strict scrutiny test is that the burden falls upon respondents as agents of government
to prove that their actions do not infringe upon petitioners constitutional rights. As
content regulation cannot be done in the absence of any compelling reason,[55] the
burden lies with the government to establish such compelling reason to infringe the
right to free expression.
III.

We first turn to whether the implicit denial of the application for preliminary mandatory
injunction by the RTC was in fact attended with grave abuse of discretion. This is the
main issue raised in G.R. No. 170270.
To recall, the RTC on 20 April 2004 issued an order denying the prayer for the issuance
of a writ of preliminary injunction, claiming that [t]here is insufficiency of allegation
[t]here is no certainty that after the election period, the respondents will interfere with
the operation of the radio stations x x x which are now operating by virtue of the order of
the COMELEC.[56] Petitioners filed a motion for reconsideration, which the RTC denied
on 13 May 2004. The refusal of the RTC to grant provisional relief gave way to the
closure of petitioners radio stations on 10 June 2004, leading for them to file a motion
for the issuance of a writ of preliminary mandatory injunction on 25 June 2004. This
motion had not yet been acted upon when on 14 September 2004, the RTC promulgated
its decision denying the petition for mandamus.
Among the arguments raised by petitioners in their motion for reconsideration before the RTC
was against the implied denial of their motion for the issuance of a writ of preliminary
mandatory injunction, claiming in particular that such implicit denial violated petitioners
right to due process of law since no hearing was conducted thereupon. However, when
the RTC denied the motion for reconsideration in its 1 December 2004 Order, it noted
that its implied denial of the motion for a writ of preliminary mandatory injunction was
not a ground for reconsideration of its decision.
Petitioners maintain that the RTC acted with grave abuse of discretion when it impliedly
denied their motion for the issuance of a writ of preliminary mandatory injunction
without any hearing. The Court of Appeals pointed out that under Section 5 of Rule 58 of
the 1997 Rules of Civil Procedure, it is the granting of a writ of preliminary injunction that
mandatorily requires a hearing. The interpretation of the appellate court is supported by
the language of the rule itself:
SEC. 5. Preliminary injunction not granted without notice; exception. No preliminary
injunction shall be granted without hearing and prior notice to the party or person
sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the applicant before the matter
can be heard on notice, the court to which the application for preliminary injunction was
made, may issue ex parte a temporary restraining order to be effective only for a period
of twenty (20) days from service on the party or person sought to be enjoined, except as
herein provided. x x x

66

Section 5 of Rule 58 prescribes a mandatory hearing and prior notice to the party or
person sought to be enjoined if preliminary injunction should be granted. It imposes no
similar requirement if such provisional relief were to be denied. We in fact agree with the
Court of Appeals that if on the face of the pleadings, the applicant for preliminary
injunction is not entitled thereto, courts may outrightly deny the motion without
conducting a hearing for the purpose.[57] The Court is disinclined to impose a
mandatory hearing requirement on applications for injunction even if on its face,
injunctive relief is palpably without merit or impossible to grant. Otherwise, our trial
courts will be forced to hear out the sort of litigation-happy attention-deprived

miscreants who abuse the judicial processes by filing complaints against real or
imaginary persons based on trivial or inexistent slights.
We do not wish though to dwell on this point, as there is an even more fundamental
point to consider. Even as we decline to agree to a general that the denial of an
application for injunction requires a prior hearing, we believe in this case that petitioners
deserved not only a hearing on their motion, but the very writ itself.
As earlier stated, the burden of presuming valid the actions of respondents sought,
fraught as they were with alleged violations on petitioners constitutional right to
expression, fell on respondents themselves. This was true from the very moment the
petition for mandamus was filed. It was evident from the petition that the threat against
petitioners was not wildly imagined, or speculative in any way. Attached to the petition
itself was the Closure Order dated 13 February 2004 issued by respondents against
petitioners.[58] There was no better evidence to substantiate the claim that petitioners
faced the live threat of their closure. Moreover, respondents in their Answer admitted to
issuing the Closure Order.[59]
At the moment the petition was filed, there was no basis for the RTC to assume that
there was no actual threat hovering over petitioners for the closure of their radio
stations. The trial court should have been cognizant of the constitutional implications of
the case, and appreciated that the burden now fell on respondents to defend the
constitutionality of their actions. From that mindset, the trial court could not have
properly denied provisional relief without any hearing since absent any extenuating
defense offered by the respondents, their actions remained presumptively invalid.
Our conclusions hold true not only with respect to the implied denial of the motion for
preliminary injunction, but also with the initial denial without hearing on 20 April 2004 of
the prayer for a writ of preliminary injunction and temporary restraining order.
Admittedly, such initial denial is not the object of these petitions, yet we can observe
that such action of the RTC was attended with grave abuse of discretion, the trial court
betraying ignorance of the constitutional implications of the petition. With respect to the
subsequent implied denial of the writ of preliminary mandatory injunction, the grave
abuse of discretion on the part of the trial court is even more glaring. At that point,
petitioners radio stations were not merely under threat of closure, they were already
actually closed. Petitioners constitutional rights were not merely under threat of
infringement, they were already definitely infringed.
The application of the strict scrutiny analysis to petitioners claims for provisional relief
warrants the inevitable conclusion that the trial court cannot deny provisional relief to
the party alleging a prima facie case alleging government infringement on the right to
free expression without hearing from the infringer the cause why its actions should be
sustained provisionally. Such acts of infringement are presumptively unconstitutional,
thus the trial court cannot deny provisional relief outright since to do so would lead to
the sustention of a presumptively unconstitutional act. It would be necessary for the
infringer to appear in court and somehow rebut against the presumption of
unconstitutionality for the trial court to deny the injunctive relief sought for in cases
where there is a prima facie case establishing the infringement of the right to free
expression.

Those above-stated guidelines, which pertain most particularly to the ex parte denial of
provisional relief in free expression cases, stand independently of the established
requisites for a party to be entitled to such provisional reliefs. With respect to writs of
preliminary injunction, the requisite grounds are spelled out in Section 3 of Rule 58 of
the Rules of Court.
It may be pointed out that the application for preliminary mandatory injunction after
petitioners radio stations had been closed was mooted by the RTC decision denying the
petition for mandamus. Ideally, the RTC should have acted on the motion asking for the
issuance of the writ before rendering its decision. Given the circumstances, petitioners
were entitled to immediate relief after they filed their motion on 25 June 2004, some two
and a half months before the RTC decision was promulgated on 14 September 2004. It is
not immediately clear why the motion, which had been set for hearing on 2 July 2004,
had not been heard by the RTC, so we have no basis for imputing bad faith on the part of
the trial court in purposely delaying the hearing to render it moot with the forthcoming
rendition of the decision. Nonetheless, given the gravity of the constitutional question
involved, and the fact that the radio stations had already been actually closed, a prudent
judge would have strived to hear the motion and act on it accordingly independent of the
ultimate decision.
Since the prayer for the issuance of a writ of mandatory injunction in this case was
impliedly denied through the decision denying the main action, we have no choice but to
presume that the prayer for injunction was denied on the same bases as the denial of the
petition for mandamus itself. The time has come for us to review such denial, the main
issue raised in G.R. No. 179411.
IV.
The perspective from which the parties present the matter for resolution in G.R. No.
179411 is whether the property of CDC had been duly converted or classified for
commercial use, with petitioners arguing that it was while respondents claiming that the
property remains agricultural in character. This perspective, to our mind, is highly
myopic and implicitly assumes that the requirements imposed on petitioners by the
Cauayan City government are in fact legitimate.
The LGC authorizes local legislative bodies to enact ordinances authorizing the
issuance of permits or licenses upon such conditions and for such purposes intended to
promote the general welfare of the inhabitants of the LGU.[60] A municipal or city mayor
is likewise authorized under the LGC to issue licenses and permits and suspend or
revoke the same for any violation of the conditions upon which said licenses or permits
had been issued, pursuant to law or ordinance.[61] Generally, LGUs have exercised its
authority to require permits or licenses from business enterprises operating within its
territorial jurisdiction.

67

A municipal license is essentially a governmental restriction upon private rights and is

valid only if based upon an exercise by the municipality of its police or taxing powers.
[62] The LGC subjects the power of sanggunians to enact ordinances requiring licenses
or permits within the parameters of Book II of the Code, concerning Local Taxation and
Fiscal Matters. It also necessarily follows that the exercise of this power should also be
consistent with the Constitution as well as the other laws of the land.

Nothing in national law exempts media entities that also operate as businesses such as
newspapers and broadcast stations such as petitioners from being required to obtain
permits or licenses from local governments in the same manner as other businesses are
expected to do so. While this may lead to some concern that requiring media entities to
secure licenses or permits from local government units infringes on the constitutional
right to a free press, we see no concern so long as such requirement has been duly
ordained through local legislation and content-neutral in character, i.e., applicable to all
other similarly situated businesses.
Indeed, there are safeguards within the LGC against the arbitrary or unwarranted exercise of
the authority to issue licenses and permits. As earlier noted, the power of sanggunians
to enact ordinances authorizing the issuance of permits or licenses is subject to the
provisions of Book Two of the LGC. The power of the mayor to issue license and
permits and suspend or revoke the same must be exercised pursuant to law or
ordinance.[63]
In the case of Cauayan City, the authority to require a mayors permit was enacted through
Ordinance No. 92-004, enacted in 1993 when Cauayan was still a municipality. We quote
therefrom:
Sec. 3A.01. Imposition of Fee. There shall be imposed and collected an annual fee at the
rates provided hereunder for the issuance of Mayors Permit to every person that shall
conduct business, trade or activity within the Municipality of Cauayan.
The permit fee is payable for every separate or distinct establishment or place where the
business trade or activity is conducted. One line of business or activity does not become
exempt by being conducted with some other business or activity for which the permit fee
has been paid.
x x x x
Sec. 3A.03. Application for Mayors Permit False Statements. A written application for a
permit to operate a business shall be filed with the Office of the Mayor in three copies.
The application form shall set forth the name and address of the applicant, the
description or style of business, the place where the business shall be conducted and
such other pertinent information or data as may be required.
Upon submission of the application, it shall be the duty of the proper authorities to verify if
the other Municipal requirements regarding the operation of the business or activity are
complied with. The permit to operate shall be issued only upon such compliance and
after the payment of the corresponding taxes and fees as required by this revenue code
and other municipal tax ordinances.
Any false statement deliberately made by the applicant shall constitute sufficient ground for
denying or revoking the permit issued by the Mayor, and the applicant or licensee may
further be prosecuted in accordance with the penalties provided in this article.
A Mayors Permit shall be refused to any person:

(1) Whose business establishment or undertaking does not conform with zoning regulations
and safety, health and other requirements of the Municipality; (2) that has an unsettled
tax obligations, debt or other liability to the Municipal Government; and (3) that is
disqualified under any provision of law or ordinance to establish, or operate the
business for which a permit is being applied.[64]
Petitioners do not challenge the validity of Ordinance No. 92-004. On its face, it operates
as a content-neutral regulation that does not impose any special impediment to the
exercise of the constitutional right to free expression. Still, it can be seen how under the
veil of Ordinance No. 92-004 or any other similarly oriented ordinance, a local
government unit such as Cauayan City may attempt to infringe on such constitutional
rights.
A local government can quite easily cite any of its regulatory ordinances to impose
retaliatory measures against persons who run afoul it, such as a business owned by
an opponent of the government, or a
crusading newspaper or radio station. While the ill-motives of a local government do not
exempt the injured regulatory subject from complying with the municipal laws, such
laws themselves do not insulate those ill-motives if they are attended with infringements
of constitutional rights, such as due process, equal protection and the right to free
expression. Our system of laws especially frown upon violations of the guarantee to free
speech, expression and a free press, vital as these are to our democratic regime.
Nothing in Ordinance No. 92-004 requires, as respondents did, that an applicant for a
mayors permit submit either an approved land conversion papers from the DAR
showing that its property was converted from prime agricultural land to commercial
land, or an approved resolution from the Sangguniang Bayan or Sangguniang
Panglungsod authorizing the re-classification of the property from agricultural to
commercial land.[65] The aforecited provision which details the procedure for applying
for a mayors permit does not require any accompanying documents to the application,
much less those sought from petitioners by respondents. Moreover, Ordinance No. 92004 does not impose on the applicant any burden to establish that the property from
where the business was to operate had been duly classified as commercial in nature.
According to respondents, it was only in 2002 that the more diligent Respondent
Bagnos Maximo discovered the mistake committed by his predecessor in the issuance
of the Petitioners Zoning Certifications from 1996 to 2001.[66] Assuming that were true,
it would perhaps have given cause for the local government in requiring the business so
affected to submit additional requirements not required of other applicants related to the
classification of its property. Still, there are multitude of circumstances that belie the
claim that the previous certifications issued by the OMPDC as to the commercial
character of CDCs property was incorrect.

68

On 5 July 1996, the HLURB issued a Zoning Decision that classified the property as
Commercial.[67] The HLURB is vested with authority to review, evaluate and approve or
disapprovethe zoning component of subdivisions, condominiums or estate
development projects including industrial estates, of both the public and private
sectors.[68] In exercising such power, the HLURB is required to use Development Plans
and Zoning Ordinances of local governments herein.[69] There is no reason to doubt

that when the HLURB acknowledged in 1996 that the property in question was
commercial, it had consulted the development plans and zoning ordinances of Cauayan.
Assuming that respondents are correct that the property was belatedly revealed as noncommercial, it could only mean that even the HLURB, and not just the local government
of Cauayan erred when in 1996 it classified the property as commercial. Or, that between
1996 to 2002, the property somehow was reclassified from commercial to agricultural.
There is neither evidence nor suggestion from respondents that the latter circumstance
obtained.
Petitioners are also armed with six certifications issued by the OMPDC for the consecutive
years 1996 to 2001, all of which certify that the property is classified as commercial
areain conformity with the Land Use Plan of this municipality and does not in any way
violate the existing Zoning Ordinance of Cauayan, Isabela.[70] In addition, from 1997 to
2004, petitioners paid real property taxes on the property based on the classification of
the property as commercial, without any objections raised by respondents.[71] These
facts again tend to confirm that contrary to respondents assertions, the property has
long been classified as commercial.
Petitioners persuasively argue that this consistent recognition by the local government of
Cauayan of the commercial character of the property constitutes estoppel against
respondents from denying that fact before the courts. The lower courts had ruled that
the government of Cauayan City is not bound by estoppel, but petitioners point out
our holding in Republic v. Sandiganbayan[72] where it was clarified that this concept is
understood to refer to acts and mistakes of its officials especially those which are
irregular.[73] Indeed, despite the general rule that the State cannot be put in estoppel by
the mistake or errors of its officials or agents, we have also recognized, thus:
Estoppels against the public are little favored. They should not be invoked except in a rare
and unusual circumstances, and may not be invoked where they would operate to defeat
the effective operation of a policy adopted to protect the public. They must be applied
with circumspection and should be applied only in those special cases where the
interests of justice clearly require it. Nevertheless, the government must not be allowed
to deal dishonorably or capriciously with its citizens, and must not play an ignoble part
or do a shabby thing; and subject to limitations . . ., the doctrine of equitable estoppel
may be invoked against public authorities as well as against private individuals.[74]
Thus, when there is no convincing evidence to prove irregularity or negligence on the
part of the government official whose acts are being disowned other than the bare
assertion on the part of the State, we have declined to apply State immunity from
estoppel.[75] Herein, there is absolutely no evidence other than the bare assertions of
the respondents that the Cauayan City government had previously erred when it certified
that the property had been zoned for commercial use. One would assume that if
respondents were correct, they would have adduced the factual or legal basis for their
contention, such as the local governments land use plan or zoning ordinance that would
indicate that the property was not commercial. Respondents did not do so, and the
absence of any evidence other than bare assertions that the 1996 to 2001 certifications
were incorrect lead to the ineluctable conclusion that respondents are estopped from
asserting that the previous recognition of the property as commercial was wrong.

The RTC nonetheless asserted that the previous certifications, issued by Deputy Zoning
Administrator Romeo N. Perez (Perez), were incorrect as he had no authority to make
the conversion or reclassification of the land from agricultural to commercial.[76] Yet
contrary to the premise of the RTC, the certifications issued by Perez did no such thing.
Nowhere in the certifications did it state that Perez was exercising the power to
reclassify the land from agricultural to commercial. What Perez attested to in those
documents was that the property is classified as Commercial area, in conformity with
the Land Use Plan of this municipality and does not in any way violate the existing
Zoning Ordinance of Cauayan, Isabela. What these certifications confirm is that
according to the Land Use Plan and existing zoning ordinances of Cauayan, the property
in question is commercial.
Compounding its error, the RTC also stated that following Section 65[77] of Rep. Act No.
6657, or the Comprehensive Agrarian Reform Law, only the DAR, upon proper
application can authorize the reclassification or conversion of the use of the land from
agricultural to residential, commercial or industrial. The citation is misleading. Section
4 of the same law provides for the scope of the agrarian reform program under the CARL
as covering all public and private agricultural lands, as provided in Proclamation No.
131 and Executive Order No. 229, including other lands of the public domain suitable for
agriculture.[78] Section 3(c) defines agricultural lands as land devoted to agricultural
activity as defined in this Act and not classified as mineral, forest, residential,
commercial or industrial land.[79] Obviously, if the property had already been classified
as commercial land at the time of the enactment of the CARL, it does not fall within the
class of agricultural lands which may be subject of conversion under Section 65 of that
law. Section 65, as relied upon by the trial court, would have been of relevance only if it
had been demonstrated by respondents that the property was still classified as
agricultural when the CARL was enacted.
It is worth emphasizing that because the acts complained of the respondents led to the
closure of petitioners radio stations, at the height of election season no less,
respondents actions warrant strict scrutiny from the courts, and there can be no
presumption that their acts are constitutional or valid. In discharging the burden of
establishing the validity of their actions, it is expected that respondents, as a condition
sine qua non, present the legal basis for their claim that the property was not zoned
commercially the proclaimed reason for the closure of the radio stations. The lower
courts should have known better than to have swallowed respondents unsubstantiated
assertion hook, line and sinker.
We can also point out that aside from the evidence we have cited, petitioners
contention that the property had been duly classified for commercial use finds
corroboration from the Order dated 14 March 2002 issued by DAR Region II Director
Aydinan in Adm. Case No. A-0200A-07B-002. The Order stated, viz:

69

Official records examined by this Office indicate continued use of subject land for
purposes other than agricultural since 1986. Back when Cauayan was still a municipality,
the Office of the Planning and Development Coordinator documented subject land under
a commercial classification. The Zoning Administrator deputized by the Housing and
Land Use Regulatory Board certified in 1998 that subject lands attribution to the
Commercial Zone is in conformity with the Land Use Plan of this municipality and does
not in any way violate any existing Zoning Ordinance of Cauayan, Isabela adding the

stipulation that a 15 meter setback from the centerline of the National Road has to be
observed.
If the area in which subject land is found was already classified non-agricultural even
before urban growth saw Cauayan became a city in 2001, assuming its reversion to the
agricultural zone now taxes logic. In any case, such a dubious assumption can find no
support in any current land use plan for Cauayan approved by the National Economic
Development Authority.[80]
Petitioners citation of this Order has been viciously attacked by respondents, with approval
from the lower courts. Yet their challenges are quite off-base, and ultimately irrelevant.
The Order has been characterized by respondents as a forgery, based on a certification
issued by the Head of the RCLUPPI Secretariat that his office has no official record nor
case docketed of the petition filed by CBS Development Corporation, represented by
Charmy Sabigan and the order issued bearing Docket No. ADM. Case No. A-02200A-07B002 of the subject case, did not emanate from RCLUPPI which has its own docketing
system to applications for conversion/exemption under DOJ Opinion No. 44, Series of
1990.[81] Respondents thus hint at a scenario where petitioners scrambled to create
the Order out of nowhere in order to comply with the sought-after requirements.
However, an examination of the Order reveals an explanation that attests to the veracity
of the Order without denigrating from the truthfulness of the RCLUPPI certification.
The Order notes that the petition had been filed by CDC with the DAR Region II to, in effect,
officially remove from the agrarian reform sub-zone, in particular, and the broad
agricultural, in general, Petitioners land holding embraced by Transfer Certificate of Title
No. T-254786 which is located in [B]arangay Minante II of Cauayan City x x x.[82] It goes
on to state:
Herein petition can go through the normal procedure and, after the submission of certain
documentary supports that have to be gathered yet from various agencies, should be
granted as a matter of course. However, a new dimension has been introduced when the
unformalized conversion of the use of subject land from an agricultural to a nonagricultural mode has provided an excuse to some official quarters to disallow existing
commercial operation, nay, the broadcast activities of Petitioner and, thus, perhaps
threaten an essential freedom in our democratic setting, the liberty of mass media
organizations to dispense legitimate information to the public unhampered by any
extraneous obstacles. Hence, overarching public interest has made an official
declaration of subject landholdings removal from the agricultural zone most urgent and,
thus immediate action on the case imperative.
To the extent that legitimate social interest are unnecessarily prejudiced otherwise,
procedural rules laid down by Government must yield to the living reason and to
common sense in the concrete world as long as the underlying principles of effective
social-justice administration and good governance are not unduly sacrificed. Thus, it is
incumbent upon the Department of Agrarian Reform, or DAR for brevity, to take into
account in decision-making with respect to the case at hand more basic principles in
order to uphold the cause of conscientious and timely public service.

Needless to say, this Office, given the latitude of discretion inherent to it, can simultaneously
address the Petition and the procedural concerns collateral to it when subordinate
offices tend to treat such concerns as factors complicating the essential question or
questions and view the Petition as one that it is not amenable to ready problem-solving
and immediate decision-making. To forestall a cycle of helpless inaction or indecisive
actions on the part of the subordinate offices as customarily happens in cases of this
nature, this Office shall proceed to treat the petition at hand as a matter of original
jurisdiction in line with its order of Assumption of Direct Jurisdiction of 03 December
2001, a prior action taken, in general, by this Office over cases of Land-Tenure
Improvement, Failure, Problematic Coverage, Land-Owners and Special Concerns, Other
Potential Flash Points of Agrarian Conflict, and Long-Standing Problems Calling for
Discretionary Decision Making.[83]
In so many words, DAR Region II Director Aydinan manifested that he was assuming direct
jurisdiction over the petition, to the exclusion of subordinate offices such as that which
issued the certification at the behest of the respondents, the RCLUPPI of the DAR
Region II Office. Thus, the RCLUPPI could have validly attested that the subject case
did not emanate from the RCLUPPI which has its own docketing system to applications
for conversion/exemption under DOJ Opinion No. 44, Series of 1990. One could quibble
over whether Director Aydinan had authority to assume direct jurisdiction over CDCs
petition to the exclusion of the RCLUPPI, but it would not detract from the apparent fact
that the Director of the DAR Region II Office did issue the challenged Order. Assuming
that the Order was issued without or in excess of jurisdiction, it does not mean that the
Order was forged or spurious, it would mean that the Order is void.
How necessary is it for us to delve into the validity or efficacy of the Aydinan Order? Certainly,
any conclusions we draw from the said Order are ultimately irrelevant to the resolution
of these petitions. The evidence is compelling enough that the property had already
been duly classified for commercial use long before the Aydinan Order was issued.
Respondents, who had the burden of proving that they were warranted in ordering the
closure of the radio stations, failed to present any evidence to dispute the long-standing
commercial character of the property. The inevitable conclusion is that respondents very
well knew that the property, was commercial in character, yet still proceeded without
valid reason and on false pretenses, to refuse to issue the mayors permit and
subsequently close the radio stations. There is circumstantial evidence that these
actions were animated by naked political motive, by plain dislike by the Cauayan City
powers-that-be of the content of the broadcast emanating in particular from DZNC, which
had ties to political opponents of the respondents. Respondents were further estopped
from disclaiming the previous consistent recognition by the Cauayan City government
that the property was commercially zoned unless they had evidence, which they had
none, that the local officials who issued such certifications acted irregularly in doing so.

70

It is thus evident that respondents had no valid cause at all to even require petitioners to
secure approved land conversion papers from the DAR showing that the property was
converted from prime agricultural land to commercial land. That requirement, assuming
that it can be demanded by a local government in the context of approving mayors
permits, should only obtain upon clear proof that the property from where the business
would operate was classified as agricultural under the LGUs land use plan or zoning

ordinances and other relevant laws. No evidence to that effect was presented by the
respondents either to the petitioners, or to the courts.
V.
Having established that respondents had violated petitioners legal and constitutional
rights, let us now turn to the appropriate reliefs that should be granted.
At the time petitioners filed their special civil action for mandamus on 15 April 2004,
their radio stations remained in operation despite an earlier attempt by respondents to
close the same, by virtue of an order rendered by the COMELEC. The mandamus action
sought to compel respondents to immediately issue petitioners zoning clearances and
mayors permit for 2004. During the pendency of the action for mandamus, respondents
finally succeeded in closing the radio stations, and it was possible at that stage for
petitioners to have likewise sought the writs of prohibition and/or certiorari. Petitioners
instead opted to seek for a writ or preliminary mandatory injunction from the trial
court, a viable
recourse albeit one that remains ancillary to the main action for mandamus.
We had previously acknowledged that petitioners are entitled to a writ of preliminary
mandatory injunction that would have prevented the closure of the radio stations. In
addition, we hold that the writ of mandamus lies. Mandamus lies as the proper relief
whenever a public officer unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary course
of law.[84] For the year 2004, petitioners had duly complied with the requirements for the
issuance of the same mayors permit they had obtained without issue in years prior.
There was no basis for respondents to have withheld the zoning clearances, and
consequently the mayors permit, thereby depriving petitioners of the right to broadcast
as certified by the Constitution and their particular legislative franchise.
We turn to the issue of damages. Petitioners had sought to recover from respondents P8
Million in temperate damages, P1 Million in exemplary damages, and P1 Million in
attorneys fees. Given respondents clear violation of petitioners constitutional
guarantee of free expression, the right to damages from respondents is squarely
assured by Article 32 (2) of the Civil Code, which provides:
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following
rights and liberties of another person shall be liable to the latter for damages:
x x x x
(2) Freedom of speech;
We noted in Lim v. Ponce de Leon that [p]ublic officials in the past have abused their powers
on the pretext of justifiable motives or good faith in the performance of their duties
[and] the object of [Article 32 of the Civil Code] is to put an end to official abuse by plea
of the good faith.[85] The application of Article 32 not only serves as a measure of

pecuniary recovery to mitigate the injury to constitutional rights, it likewise serves notice
to public officers and employees that any violation on their part of any persons
guarantees under the Bill of Rights will meet with final reckoning.
The present prayer for temperate damages is premised on the existence of pecuniary injury to
petitioner due to the actions of respondents, the amount of which nevertheless being
difficult to prove.[86] Temperate damages avail when the court finds that some pecuniary
loss has been suffered but its amount can not, from the nature of the case, be proved
with certainty.[87] The existence of pecuniary injury at bar cannot be denied. Petitioners
had no way of knowing it when they filed their petition, but the actions of respondents
led to the closure of their radio stations from June 2004 until this Court issued a writ
of preliminary injunction in January 2006.[88] The lost potential income during that one
and a half year of closure can only be presumed as substantial enough. Still, despite that
fact, possibly unanticipated when the original amount for claimed temperate damages
was calculated, petitioners have maintained before this Court the same amount, P8
Million, for temperate damages. We deem the amount of P4 Million reasonable under
the circumstances.[89]
Exemplary damages can be awarded herein, since temperate damages are available.
Public officers who violate the Constitution they are sworn to uphold embody a poison
of wickedness that may not run through the body politic.[90] Respondents, by
purposely denying the commercial character of the property in order to deny petitioners
the exercise of their constitutional rights and their business, manifested bad faith in a
wanton, fraudulent, oppressive and malevolent manner.[91] The amount of exemplary
damages need not be proved where it is shown that plaintiff is entitled to temperate
damages,[92] and the sought for amount of P1 Million is more than appropriate. We
likewise deem the amount of P500 Thousand in attorneys fees as suitable under the
circumstances.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of
Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED
and SET ASIDE. The instant petition for mandamus is hereby GRANTED and
respondents are directed to immediately issue petitioners zoning clearances and
mayors permits for 2004 to petitioners
Respondents Caesar G. Dy, Felicisimo G. Meer, Bagnos Maximo, and Racma FernandezGarcia are hereby ORDERED to pay petitioners JOINTLY AND SEVERALLY the following
amounts in damages:
(1) FOUR MILLION PESOS (P4,000,000.00) as TEMPERATE DAMAGES[93];
(2) ONE MILLION PESOS (P1,000,000.00) as EXEMPLARY DAMAGES;
(3) FIVE HUNDRED THOUSAND PESOS (P 500,000.00) as ATTORNEYS FEES.
Costs against respondents.

71

SO ORDERED.

SECOND DIVISION
HECTOR C. VILLANUEVA,
Petitioner,
- versus PHILIPPINE DAILY INQUIRER, INC., LETTY JIMENEZ MAGSANOC, ROSAURO G. ACOSTA,
JOSE MARIA NOLASCO, ARTEMIO T. ENGRACIA, JR., RAFAEL CHEEKEE, and MANILA
DAILY BULLETIN PUBLISHING CORPORATION, NAPOLEON G. RAMA, BEN F.
RODRIGUEZ, ARTHUR S. SALES, CRIS J. ICBAN, JR.,
Respondents.
G.R. No. 164437
Present:
QUISUMBING, J., Chairperson,
CARPIO,*
CORONA,**
CARPIO MORALES, and
VELASCO, JR., JJ.

Promulgated:
May 15, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Amended Decision[1] dated May 25, 2004 of
the Court of Appeals in CA-G.R. CV No. 54134, reversing the Decision[2] of the Regional
Trial Court (RTC) of Negros Oriental, Dumaguete City, Branch 44 in Civil Case No. 206-B,
which had awarded damages to petitioner for respondents false reporting.
The basic facts in this case are uncomplicated.
Petitioner was one of the mayoralty candidates in Bais, Negros Oriental during the May 11,
1992 elections.
On March 30, 1990, Ricardo Nolan, another mayoralty candidate, petitioned for the
disqualification of petitioner from running in the elections. Said petition, however, was
denied by the COMELEC.[3]
Two days before the elections, or on May 9, 1992, respondent Manila Daily Bulletin Publishing
Corporation (Manila Bulletin) published the following story:
The Comelec has disqualified Hector G. Villanueva as Lakas-NUCD candidate for mayor of
Bais City for having been convicted in three administrative cases for grave abuse of
authority and harassment in 1987, while he was officer-in-charge of the mayors office of
Bais City.[4] [Emphasis and underscoring supplied.]

72

A day before the elections or on May 10, 1992, respondent Philippine Daily Inquirer, Inc. (PDI)
also came out with a similar story, to wit:
The Commission on Elections disqualified Hector G. Villanueva as Lakas-NUCD candidate for
mayor of Bais City for having been convicted in three administrative cases for grave
abuse of authority and harassment in 1987, while he was the officer-in-charge of the
mayors office in the city.
The Comelec upheld the recommendation of the Comelec office in Bais City, stressing that
Villanuevas conviction in the administrative cases barred him from seeking any elective
office.
The Comelec cited Section 40 of the Local Government Code of 1991, which provides that
among those who are disqualified from running for any elective position are those
removed from office as a result of an administrative case.
Villanueva was appointed Bais City OIC on April 18, 1986 by then Local Government Minister
Aquilino Pimentel. Sometime during the same year, three administrative cases were
instituted against Villanueva before the Department of Local Government upon
complaint of Rebecco V. Fernandez and Dr. Harte C. Fuentes.
Sometime in May 1987, the ministry found Villanueva guilty as charged and ordered him
removed from his position as OIC of the city government, which decision was approved
by Minister Jaime Ferrer.
In the same month, Francisco G. Villanueva was appointed OIC Mayor to replace Hector
Villanueva who had been removed from office.
The poll body also stated that insofar as the penalty of the removal is concerned, this cannot
be reversed anymore, and consequently cannot be the subject matter of an appeal.
The indefinite term as OIC to which respondent was appointed in 1986 already lapsed, with
the holding of the 1988 local elections and the assumption of office of those elected
therein.[5] [Emphasis and underscoring supplied.]
On May 11, 1992, the national and local elections were held as scheduled. When results came
out, it turned out that petitioner failed in his mayoralty bid.
Believing that his defeat was caused by the publication of the above-quoted stories, petitioner
sued respondents PDI and Manila Bulletin as well as their publishers and editors for
damages before the RTC of Bais City. He alleged that the articles were maliciously
timed to defeat him. He claimed he should have won by landslide, but his supporters
reportedly believed the news items distributed by his rivals and voted for other
candidates. He asked for actual damages of P270,000 for the amount he spent for the
campaign, moral damages of P10,000,000, an unspecified amount of exemplary
damages, attorneys fees of P300,000 and costs of suit.[6]
Respondents disclaimed liability. They asserted that no malice can be attributed to them as
they did not know petitioner and had no interest in the outcome of the election, stressing
that the stories were privileged in nature.[7]
According to Manila Bulletin reporter Edgardo T. Suarez, he got the story during a COMELEC
commissioners press briefing. He, however, came in late and only a fellow reporter told
him that the disqualification case against petitioner was granted. He did not bother to
get a confirmation from anyone as he had a deadline to beat.[8]
PDI political section editor Carlos Hidalgo, on the other hand, said that he got the story from a
press release. He claimed that he found the press release on his desk the day Manila
Bulletin published the same story. The press release bore COMELECs letterhead and
was signed by one Sonia Dimasupil, a former Malaya newspaper editor who was incharge of COMELEC press releases. He tried to contact her but she was out of the
office. Since the news item was also published in the Manila Bulletin, he felt confident

the press release was authentic. He however failed to produce the press release in
court.[9]
On April 18, 1996, the trial court rendered a decision in favor of petitioner as follows:
WHEREFORE FOREGOING CONSIDERED, this Court holds that defendants Philippine Daily
Inquirer, [Inc.] and Manila [Daily] Bulletin Publishing Corporation with their respective
officers are liable [for] damages to plaintiff in the following manner:
1.
As moral damages, the Philippine Daily Inquirer, [Inc.] and the Manila [Daily]
Bulletin Publishing Corporation are ordered to pay P1,000,000.00 each to plaintiff;
2.
Both defendants are likewise ordered to pay an exemplary damage in the amount
of P500,000.00 each;
3.
To pay plaintiffs attorneys fees in the amount of P100,000.00;
4.
And to pay the costs.
SO ORDERED.[10]
The trial court found the news items derogatory and injurious to petitioners reputation and
candidacy. It faulted respondents for failing to verify the truth of the news tips they
published and held respondents liable for negligence, citing Policarpio v. Manila Times
Pub. Co., Inc.[11] The trial court also ruled that because the news items lacked truth and
fairness, they were not privileged communications.
On appeal by respondents, the Court of Appeals dismissed the complaint. It explained that
although the stories were false and not privileged, as there is no proof they were
obtained from a press conference or release, respondents were not impelled by malice
or improper motive. There was also no proof that petitioners supporters junked him due
to the reports. Neither was there any proof he would win, making his action unfounded.
Before us, petitioner raises the lone issue of whether:
[THE] HONORABLE APPELLATE COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO UTTER LACK OF JURISDICTION WHEN IT UNILATERALLY,
UNPROCEDURALLY AND ARBITRARILY CHANGED THE PLEADING-BORNE AND PRETRIAL ORDER DELINEATED THEORY OF QUASI-DELICT OF APPELLEE, THEREBY
DISMISSING THE CASE FOR FAILURE TO EVIDENCE AN ESSENTIAL REQUISITE OF ITS
IMPOSED IRRELEVANT THEORY.[12]
Simply stated, we are asked to resolve the issue of whether petitioner is required to prove
malice to be entitled to damages.
Petitioner argues that his cause of action is based on quasi-delict which only requires proof
of fault or negligence, not proof of malice beyond reasonable doubt as required in a
criminal prosecution for libel. He argues that the case is entirely different and separate
from an independent civil action arising from libel under Article 100[13] of the Revised
Penal Code. He claims he proffered proofs sustaining his claim for damages under
quasi-delict, not under the law on libel, as malice is hard to prove. He stresses that
nowhere in the complaint did he mention libel, and nothing in his complaint shows that
his cause of action had some shade of libel as defined in the Revised Penal Code. He
also did not hint a resort to a criminal proceeding for libel.[14]
PDI and its officers argue that petitioners complaint clearly lays a cause of action arising
from libel as it highlights malice underlying the publications. And as malice is an
element of libel, the appellate court committed no error in characterizing the case as one
arising from libel.[15]
For their part, Manila Bulletin and its officers claim that petitioner changed his theory, which
must be disallowed as it violates respondents right to due process. Although
petitioners claim for damages before the trial court hinged on the erroneous
publications, which he alleged were maliciously timed, he claims in his petition before
this Court that his cause of action is actually one for quasi-delict or tort. They stress

73

that the prayer and allegations in petitioners complaint, which never alleged quasi-delict
or tort but malicious publication as basis for the claim for damages, control his case
theory. Thus, it may not be altered unless there was an amendment of the complaint to
change the cause of action. They claim that petitioners initiatory pleading and the trial
courts pre-trial order and decision reveal that his cause of action for damages arose
from the publications of the malicious articles; hence, he should have proved actual
malice to be entitled to any award of damages. They added that the appellate court
correctly ruled that the articles were not published with actual malice.[16]
We rule in favor of the respondents.
Basic is the rule that what determines the nature of an action as well as which court has
jurisdiction over it are the allegations of the complaint and the character of the relief
sought.[17] The nature of a pleading is determined by allegations therein made in good
faith, the stage of the proceeding at which it is filed, and the primary objective of the
party filing the same. The ground chosen or the rationale adopted by the court in
resolving the case does not determine or change the real nature thereof.
The complaint was denominated as one for damages, and a perusal of its content reveals
that the factual allegations constituted a complaint for damages based on malicious
publication. It specifically pointed out that petitioner lost the election because of the bad
publicity created by the malicious publication of respondents PDI and Manila Bulletin. It
is alleged numerous times that the action for damages stemmed from respondents
malicious publication. Petitioner sought that respondents be declared guilty of
irresponsible and malicious publication and be made liable for damages. The fact that
petitioner later on changed his theory to quasi-delict does not change the nature of
petitioners complaint and convert petitioners action into quasi-delict. The complaint
remains to be one for damages based on malicious publication.
Consequently, as the issue of malice was raised, it was incumbent on petitioner to prove the
same. The basic rule is that mere allegation is not evidence, and is not equivalent to
proof.[18] As correctly stated by the Court of Appeals, while the questioned news item
was found to be untrue, this does not necessarily render the same malicious.
To fully appreciate the import of the complaint alleging malice and damages, we must recall
the essence of libel.
Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural person or juridical person, or to blacken the
memory of one who is dead.[19] Any of these imputations is defamatory and under the
general rule stated in Article 354 of the Revised Penal Code, every defamatory
imputation is presumed to be malicious.[20] The presumption of malice, however, does
not exist in the following instances:
1.
A private communication made by any person to another in the performance of any
legal, moral, or social duty; and
2.
A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature, or
of any statement, report, or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.[21]
We note that the publications or articles in question are neither private communications nor
true reports of official proceedings without any comments or remarks. However, this
does not necessarily mean that the questioned articles are not privileged. The
enumeration under Art. 354 is not an exclusive list of qualified privileged
communications since fair commentaries on matters of public interest are likewise
privileged and constitute a valid defense in an action for libel or slander.[22] The rule on

privileged communication had its genesis not in the nations penal code but in the Bill of
Rights of the Constitution guaranteeing freedom of speech and of the press. As early as
1918, in United States v. Caete,[23] this Court ruled that publications which are
privileged for reasons of public policy are protected by the constitutional guaranty of
freedom of speech.[24]
In the instant case, there is no denying that the questioned articles dealt with matters of
public interest. These are matters about which the public has the right to be informed,
taking into account the very public character of the election itself. For this reason, they
attracted media mileage and drew public attention not only to the election itself but to
the candidates. As one of the candidates, petitioner consequently assumed the status of
a public figure within the purview of Ayers Productions Pty. Ltd. v. Capulong.[25]
But even assuming a person would not qualify as a public figure, it would not necessarily
follow that he could not validly be the subject of a public comment. For he could; for
instance, if and when he would be involved in a public issue. If a matter is a subject of
public or general interest, it cannot suddenly become less so merely because a private
individual is involved or because in some sense the individual did not voluntarily choose
to become involved. The publics primary interest is in the event; the public focus is on
the conduct of the participant and the content, effect and significance of the conduct,
not the participants prior anonymity or notoriety.[26]
In any event, having been OIC-Mayor of Bais City after the People Power Revolution,
petitioner in this case as early as 1992 was already a well-known official and public
figure.
However, it must be stressed that the fact that a communication or publication is privileged
does not mean that it is not actionable; the privileged character simply does away with
the presumption of malice, which the plaintiff has to prove in such a case.[27] That
proof in a civil case must of course be based on preponderance of evidence. This,
however, petitioner failed to do in this case.
Under the current state of our jurisprudence, to be considered malicious, the libelous
statement must be shown to have been written or published with the knowledge that
they are false or in reckless disregard of whether they are false or not. Reckless
disregard of what is false or not means that the author or publisher entertains serious
doubt as to the truth of the publication, or that he possesses a high degree of awareness
of their probable falsity.[28]
In the instant case, we find no conclusive showing that the published articles in question
were written with knowledge that these were false or in reckless disregard of what was
false or not. According to Manila Bulletin reporter Edgardo T. Suarez, he got the story
from a fellow reporter who told him that the disqualification case against petitioner was
granted. PDI, on the other hand, said that they got the story from a press release the
very same day the Manila Bulletin published the same story. PDI claims that the press
release bore COMELECs letterhead, signed by one Sonia Dimasupil, who was in-charge
of COMELEC press releases. They also tried to contact her but she was out of the office.
Since the news item was already published in the Manila Bulletin, they felt confident the
press release was authentic. Following the narration of events narrated by respondents,
it cannot be said that the publications, were published with reckless disregard of what is
false or not.
Nevertheless, even assuming that the contents of the articles turned out to be false, mere
error, inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and debate.
Consistent with good faith and reasonable care, the press should not be held to account,
to a point of suppression, for honest mistakes or imperfections in the choice of

74

language. There must be some room for misstatement of fact as well as for
misjudgment. Only by giving them much leeway and tolerance can they courageously
and effectively function as critical agencies in our democracy.[29]
A newspaper, especially one national in reach and coverage, should be free to report on
events and developments in which the public has a legitimate interest with minimum fear
of being hauled to court by one group or another on criminal or civil charges for malice
or damages, i.e. libel, so long as the newspaper respects and keeps within the standards
of morality and civility prevailing within the general community.[30]
Likewise, in our view respondents failure to counter-check their report or present their
informant should not be a reason to hold them liable. While substantiation of the facts
supplied is an important reporting standard, still, a reporter may rely on information
given by a lone source although it
reflects only one side of the story provided the reporter does not entertain a high degree of
awareness of [its] probable falsity.[31] Petitioner, in this case, presented no proof that
respondents entertained such awareness. Failure to present respondents informant
before the court should not be taken against them.[32]
Worth stressing, jurisprudence instructs us that a privileged communication should not be
subjected to microscopic examination to discover grounds for malice or falsity. Such
excessive scrutiny would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides.[33]
Further, worthy of note, before the filing of the complaint, respondents herein received no
word of protest, exception or objection from petitioner. Had the error in the news reports
in question been pointed out by interested parties to the respondents, their publishers
and editors could have promptly made a rectification through print and broadcast media
just before and during the election day deflecting thereby any prejudice to petitioners
political or personal interest.
As aptly observed in Quisumbing v. Lopez, et al.:[34]
Every citizen of course has the right to enjoy a good name and reputation, but we do not
consider that the respondents, under the circumstances of this case, had violated said
right or abused the freedom of the press. The newspapers should be given such leeway
and tolerance as to enable them to courageously and effectively perform their important
role in our democracy. In the preparation of stories, press reporters and edition usually
have to race with their deadlines; and consistently with good faith and reasonable care,
they should not be held to account, to a point of suppression, for honest mistakes or
imperfection in the choice of words.[35] [Emphasis supplied.]
We find respondents entitled to the protection of the rules concerning qualified privilege,
growing out of constitutional guaranties in our Bill of Rights. We cannot punish
journalists including publishers for an honest endeavor to serve the public when moved
by a sense of civic duty and prodded by their sense of responsibility as news media to
report what they perceived to be a genuine report.
Media men are always reminded of their responsibilities as such. This time, there is also a
need to remind public figures of the consequences of being one. Fittingly, as held in
Time, Inc. v. Hill,[36] one of the costs associated with participation in public affairs is an
attendant loss of privacy.
Exposure of the self to others in varying degrees is a concomitant of life in a civilized
community. The risk of this exposure is an essential incident of life in a society which
places a primary value on freedom of speech and of press. Freedom of discussion, if it
would fulfill its historic function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of society to cope with the
exigencies of their period.[37]

On petitioners claim for damages, we find no evidence to support their award. Indeed, it
cannot be said that respondents published the questioned articles for the sole purpose
of harassing petitioner. Proof and motive that the publication was prompted by a
sinister design to vex and humiliate petitioner has not been clearly and preponderantly
established to entitle the petitioner to damages. There remains unfulfilled the need to
prove that the publications were made with actual malice that is, with the knowledge of
the publications falsity or with reckless disregard of whether they were false or not.[38]
Thus, from American jurisprudence as amplified in Lopez v. Court of Appeals:
For liability to arise then without offending press freedom, there is this test to meet: "The
constitutional guarantees require, we think, a federal rule that prohibits a public official
from recovering damages for a defamatory falsehood relating to his official conduct
unless he proves that the statement was made with actual malice that is, with
knowledge that it was false or with reckless disregard of whether it was false or not."
The United States Supreme Court went further in Curtis Publishing Co. v. Butts,[39]
where such immunity, was held as covering statements concerning public figures
regardless of whether or not they are government officials. Why there should be such an
extension is understandable in the light of the broad scope enjoyed by press freedom
which certainly allows a full and free discussion of public issues. What can be more
logical and appropriate, then, than such an expansion of the principle. As noted by a
commentator: Since discussion of public issues cannot be meaningful without
reference to the men involved on both sides of such issues, and since such men will not
necessarily be public officials, one cannot but agree that the Court was right in Curtis to
extend the Times[40] rule to all public figures.[41] [Emphasis supplied.]
Furthermore, the guarantee of press freedom has also come to ensure that claims for
damages arising from the utilization of the freedom be not unreasonable or exorbitant as
to practically cause a chilling effect on the exercise thereof. Damages, in our view, could
not simply arise from an inaccurate or false statement without irrefutable proof of actual
malice as element of the assailed publication.
WHEREFORE, the assailed Amended Decision dated May 25, 2004 of the Court of Appeals in
CA-G.R. CV No. 54134 is AFFIRMED.
SO ORDERED.

Republic of the Philippines

Supreme Court
Manila
EN BANC
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his
capacity as PRESIDENT and GENERAL MANAGER
of the GSIS,
Petitioners,

- versus -

DINNAH VILLAVIZA, ELIZABETH DUQUE,

ADRONICO A. ECHAVEZ,
RODEL RUBIO, ROWENA THERESE B. GRACIA, PILAR LAYCO, and ANTONIO JOSE
LEGARDA,
Respondents.
G.R. No. 180291
Promulgated:
July 27, 2010
x -------------------------------------------------------------------------------------------------------x
DECISION
MENDOZA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the August 31, 2007 Decision[1] of the Court of Appeals (CA), in
CA-G.R. SP No. 98952, dismissing the petition for certiorari of Government Service
Insurance System (GSIS) assailing the Civil Service Commissions Resolution No.
062177.
THE FACTS:
Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS, filed
separate formal charges against respondents Dinnah Villaviza, Elizabeth Duque,
Adronico A. Echavez, Rodel Rubio, Rowena Therese B. Gracia, Pilar Layco, and Antonio
Jose Legarda for Grave Misconduct and/or Conduct Prejudicial to the Best Interest of the
Service pursuant to the Rules of Procedure in Administrative Investigation (RPAI) of
GSIS Employees and Officials, III, D, (1, c, f) in relation to Section 52A (3), (20), Rule IV, of
the Uniform Rules on Administrative Cases in the Civil Service (URACCS), in accordance
with Book V of the Administrative Code of 1987, committed as follows:
That on 27 May 2005, respondent, wearing red shirt together with some employees, marched
to or appeared simultaneously at or just outside the office of the Investigation Unit in a
mass demonstration/rally of protest and support for Messrs. Mario Molina and Albert
Velasco, the latter having surreptitiously entered the GSIS premises;

75 x x x

xxx

xxx

That some of these employees badmouthed the security guards and the GSIS management
and defiantly raised clenched fists led by Atty. Velasco who was barred by Hearing
Officer Marvin R. Gatpayat in an Order dated 24 May 2005 from appearing as counsel for
Atty. Molina pursuant to Section 7 (b) (2) of R.A. 6713 otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees;
That respondent, together with other employees in utter contempt of CSC Resolution No.
021316, dated 11 October 2002, otherwise known as Omnibus Rules on Prohibited
Concerted Mass Actions in the Public Sector caused alarm and heightened some
employees and disrupted the work at the Investigation Unit during office hours.[2]
This episode was earlier reported to PGM Garcia, through an office memorandum dated May
31, 2005, by the Manager of the GSIS Security Department (GSIS-SD), Dennis Nagtalon.
On the same day, the Manager of the GSIS Investigation Unit (GSIS-IU), Atty. Lutgardo
Barbo, issued a memorandum to each of the seven (7) respondents requiring them to
explain in writing and under oath within three (3) days why they should not be
administratively dealt with.[3]
Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two others,
submitted a letter-explanation to Atty. Barbo dated June 6, 2005. Denying that there was
a planned mass action, the respondents explained that their act of going to the office of
the GSIS-IU was a spontaneous reaction after learning that their former union president
was there. Aside from some of them wanting to show their support, they were interested
in that hearing as it might also affect them. For her part, respondent Villaviza submitted
a separate letter explaining that she had a scheduled pre-hearing at the GSIS-IU that day
and that she had informed her immediate supervisor about it, attaching a copy of the
order of pre-hearing. These letters were not under oath.[4]
PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or
Conduct Prejudicial to the Best Interest of the Service against each of the respondents,
all dated June 4, 2005. Respondents were again directed to submit their written answers
under oath within three (3) days from receipt thereof.[5] None was filed.
On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding all
seven (7) respondents guilty of the charges and meting out the penalty of one (1) year
suspension plus the accessory penalties appurtenant thereto.
On appeal, the Civil Service Commission (CSC) found the respondents guilty of the lesser
offense of Violation of Reasonable Office Rules and Regulations and reduced the penalty
to reprimand. The CSC ruled that respondents were not denied their right to due
process but there was no substantial evidence to hold them guilty of Conduct Prejudicial
to the Best Interest of the Service. Instead,
x x x. The actuation of the appellants in going to the IU, wearing red shirts, to witness a public
hearing cannot be considered as constitutive of such offense. Appellants (respondents
herein) assembly at the said office to express support to Velasco, their Union President,
who pledged to defend them against any oppression by the GSIS management, can be
considered as an exercise of their freedom of expression, a constitutionally guaranteed
right.[6] x x x

PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the Court of
Appeals via a Petition for Review under Rule 43 of the Rules on Civil Procedure.[7] The
CA upheld the CSC in this wise:
The Civil Service Commission is correct when it found that the act sought to be punished
hardly falls within the definition of a prohibited concerted activity or mass action. The
petitioners failed to prove that the supposed concerted activity of the respondents
resulted in work stoppage and caused prejudice to the public service. Only about twenty
(20) out of more than a hundred employees at the main office, joined the activity sought
to be punished. These employees, now respondents in this case, were assigned at
different offices of the petitioner GSIS. Hence, despite the belated claim of the
petitioners that the act complained of had created substantial disturbance inside the
petitioner GSIS premises during office hours, there is nothing in the record that could
support the claim that the operational capacity of petitioner GSIS was affected or
reduced to substantial percentage when respondents gathered at the Investigation Unit.
Despite the hazy claim of the petitioners that the gathering was intended to force the
Investigation Unit and petitioner GSIS to be lenient in the handling of Atty. Molinas case
and allow Atty. Velasco to represent Atty. Molina in his administrative case before
petitioner GSIS, there is likewise no concrete and convincing evidence to prove that the
gathering was made to demand or force concessions, economic or otherwise from the
GSIS management or from the government. In fact, in the separate formal charges filed
against the respondents, petitioners clearly alleged that respondents marched to or
appeared simultaneously at or just outside the office of the Investigation Unit in a mass
demonstration/rally of protest and support for Mssrs. Mario Molina and Albert Velasco,
the latter surreptitiously entered the GSIS premises. Thus, petitioners are aware at the
outset that the only apparent intention of the respondents in going to the IU was to show
support to Atty. Mario Molina and Albert Velasco, their union officers. The belated
assertion that the intention of the respondents in going to the IU was to disrupt the
operation and pressure the GSIS administration to be lenient with Atty. Mario Molina and
Albert Velasco, is only an afterthought.[8]

III
WHETHER A DECISION THAT MAKES CONCLUSIONS OF FACTS BASED ON EVIDENCE ON
RECORD BUT MAKES A CONCLUSION OF LAW BASED ON THE ALLEGATIONS OF A
DOCUMENT THAT NEVER FORMED PART OF THE CASE RECORDS IS VALID.
IV
WHETHER FURTHER PROOF OF SUSBTANTIAL REDUCTION OF THE OPERATIONAL
CAPACITY OF AN AGENCY, DUE TO UNRULY MASS GATHERING OF GOVERNMENT
EMPLOYEES INSIDE OFFICE PREMISES AND WITHIN OFFICE HOURS, IS REQUIRED TO
HOLD THE SAID EMPLOYEES LIABLE FOR CONDUCT PREJUDICIAL TO THE BEST
INTEREST OF THE SERVICE PURSUANT TO CSC RESOLUTION NO. 021316.
V
WHETHER AN UNRULY MASS GATHERING OF TWENTY EMPLOYEES, LASTING FOR MORE
THAN AN HOUR DURING OFFICE HOURS, INSIDE OFFICE PREMISES AND WITHIN A
UNIT TASKED TO HEAR AN ADMINISTRATIVE CASE, TO PROTEST THE PROHIBITION
AGAINST THE APPEARANCE OF THEIR LEADER AS COUNSEL IN THE SAID
ADMINISTRATIVE CASE, FALLS WITHIN THE PURVIEW OF THE CONSTITUTIONAL
GUARANTEE TO FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY.
VI

Not in conformity, PGM Garcia is now before us via this Petition for Review presenting the
following:

WHETHER THE CONCERTED ABANDONMENT OF EMPLOYEES OF THEIR POSTS FOR MORE

THAN AN HOUR TO HOLD AN UNRULY PROTEST INSIDE OFFICE PREMISES ONLY
CONSTITUTES THE ADMINISTRATIVE OFFENSE OF VIOLATION OF REASONABLE
OFFICE RULES AND REGULATIONS.[9]

STATEMENT OF THE ISSUES

The Court finds no merit in the petition.

Petitioners primarily question the probative value accorded to respondents letters of

explanation in response to the memorandum of the GSIS-IU Manager. The respondents
never filed their answers to the formal charges. The petitioners argue that there being no
answers, the allegations in the formal charges that they filed should have been deemed
admitted pursuant to Section 11, Rule 8 of the Rules of Court which provides:

WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY SUPPLETORILY THE PROVISIONS

OF THE RULES OF COURT ON THE EFFECT OF FAILURE TO DENY THE ALLEGATIONS
IN THE COMPLAINT AND FAILURE TO FILE ANSWER, WHERE THE RESPONDENTS IN
THE ADMINISTRATIVE PROCEEDINGS DID NOT FILE ANY RESPONSIVE PLEADING TO
THE FORMAL CHARGES AGAINST THEM.

76

WHETHER THE RULE THAT ADMINISTRATIVE DUE PROCESS CANNOT BE EQUATED WITH
DUE PROCESS IN JUDICIAL SENSE AUTHORIZES AN ADMINISTRATIVE TRIBUNAL TO
CONSIDER IN EVIDENCE AND GIVE FULL PROBATIVE VALUE TO UNNOTARIZED
LETTERS THAT DID NOT FORM PART OF THE CASE RECORD.

SECTION 11. Allegations not specifically denied deemed admitted. Material averment in the
complaint, other than those as to the amount of liquidated damages, shall be deemed
admitted when not specifically denied. Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied specifically and under oath.

II
According to the petitioners, this rule is applicable to the case at bench pursuant to Rule 1,
Section 4 of the Rules of Court which reads:

SECTION 4. In what cases not applicable. These Rules shall not apply to election cases,
land registration, cadastral, naturalization and insolvency proceedings, and other cases
not herein provided for, except by analogy or in a suppletory character and whenever
practicable and convenient. (underscoring supplied)
The Court does not subscribe to the argument of the petitioners. Petitioners own rules, Rule
XI, Section 4 of the GSIS Amended Policy and Procedural Guidelines No. 178-04,
specifically provides:
If the respondent fails to file his Answer within five (5) working days from receipt of the
Formal Charge for the supporting evidence, when requested, he shall be considered to
have waived his right to file an answer and the PGM or the Board of Trustees, in proper
cases, shall render judgment, as may be warranted by the facts and evidence submitted
by the prosecution.
A perusal of said section readily discloses that the failure of a respondent to file an answer
merely translates to a waiver of his right to file an answer. There is nothing in the rule
that says that the charges are deemed admitted. It has not done away with the burden of
the complainant to prove the charges with clear and convincing evidence.
It is true that Section 4 of the Rules of Court provides that the rules can be applied in a
suppletory character. Suppletory is defined as supplying deficiencies.[10] It means
that the provisions in the Rules of Court will be made to apply only where there is an
insufficiency in the applicable rule. There is, however, no such deficiency as the rules of
the GSIS are explicit in case of failure to file the required answer. What is clearly stated
there is that GSIS may render judgment as may be warranted by the facts and evidence
submitted by the prosecution.
Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case,
petitioners must remember that there remain averments that are not deemed admitted by
the failure to deny the same. Among them are immaterial allegations and incorrect
conclusions drawn from facts set out in the complaint.[11] Thus, even if respondents
failed to file their answer, it does not mean that all averments found in the complaint will
be considered as true and correct in their entirety, and that the forthcoming decision will
be rendered in favor of the petitioners. We must not forget that even in administrative
proceedings, it is still the complainant, or in this case the petitioners, who have the
burden of proving, with substantial evidence, the allegations in the complaint or in the
formal charges.[12]
A perusal of the decisions of the CA and of the CSC will reveal that the case was resolved
against petitioners based, not on the absence of respondents evidence, but on the
weakness of that of the petitioners. Thus, the CA wrote:

77

Petitioners correctly submitted the administrative cases for resolution without the
respondents respective answer to the separate formal charges in accordance with
Section 4, Rule XI of the RPAI. Being in full control of the administrative proceeding and
having effectively prevented respondents from further submitting their responsive
answer and evidence for the defense, petitioners were in the most advantageous
position to prove the merit of their allegations in the formal charges. When petitioner

Winston Garcia issued those similarly worded decisions in the administrative cases
against the respondents, it is presumed that all evidence in their favor were duly
submitted and justly considered independent of the weakness of respondents evidence
in view of the principle that the burden of proof belongs to the one who alleges and not
the one who denies.[13]
On the merits, what needs to be resolved in the case at bench is the question of whether or
not there was a violation of Section 5 of CSC Resolution No. 02-1316. Stated differently,
whether or not respondents actions on May 27, 2005 amounted to a prohibited
concerted activity or mass action. Pertinently, the said provision states:
Section 5. As used in this Omnibus Rules, the phrase prohibited concerted activity or mass
action shall be understood to refer to any collective activity undertaken by government
employees, by themselves or through their employees organizations, with intent of
effecting work stoppage or service disruption in order to realize their demands of force
concession, economic or otherwise, from their respective agencies or the government.
It shall include mass leaves, walkouts, pickets and acts of similar nature. (underscoring
supplied)
In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing
red shirts to witness a public hearing do not amount to a concerted activity or mass
action proscribed above. CSC even added that their actuations can be deemed an
exercise of their constitutional right to freedom of expression. The CA found no cogent
reason to deviate therefrom.
As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political
rights of those in the government service, the concerted activity or mass action
proscribed must be coupled with the intent of effecting work stoppage or service
disruption in order to realize their demands of force concession. Wearing similarly
colored shirts, attending a public hearing at the GSIS-IU office, bringing with them
recording gadgets, clenching their fists, some even badmouthing the guards and PGM
Garcia, are acts not constitutive of an (i) intent to effect work stoppage or service
disruption and (ii) for the purpose of realizing their demands of force concession.
Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316
are there to temper and focus the application of such prohibition. Not all collective
activity or mass undertaking of government employees is prohibited. Otherwise, we
would be totally depriving our brothers and sisters in the government service of their
constitutional right to freedom of expression.
Government workers, whatever their ranks, have as much right as any person in the land to
voice out their protests against what they believe to be a violation of their rights and
interests. Civil Service does not deprive them of their freedom of expression. It would
be unfair to hold that by joining the government service, the members thereof have
renounced or waived this basic liberty. This freedom can be reasonably regulated only
but can never be taken away.
A review of PGM Garcias formal charges against the respondents reveals that he himself was
not even certain whether the respondents and the rest of the twenty or so GSIS

employees who were at the GSIS-IU office that fateful day marched there or just simply
appeared there simultaneously.[14] Thus, the petitioners were not even sure if the
spontaneous act of each of the twenty or so GSIS employees on May 27, 2005 was a
concerted one. The report of Manager Nagtalon of the GSIS-SD which was the basis for
PGM Garcias formal charges reflected such uncertainty. Thus,
Of these red shirt protesters, only Mr. Molina has official business at the Investigation Unit
during this time. The rest abandoned their post and duties for the duration of this
incident which lasted until 10:55 A.M. It was also observed that the protesters, some of
whom raised their clenched left fists, carefully planned this illegal action as evident in
their behavior of arrogance, defiance and provocation, the presence of various recording
gadgets such as VCRs, voice recorders and digital cameras, the bad mouthing of the
security guards and the PGM, the uniformity in their attire and the collusion regarding
the anomalous entry of Mr. Albert Velasco to the premises as reported earlier.[15]

EN BANC
G.R. No. 164785

March 15, 2010

ELISEO F. SORIANO, Petitioner,

vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television
Review and Classification Board, MOVIE AND TELEVISION REVIEW AND
CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.
HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL
M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 165636

The said report of Nagtalon contained only bare facts. It did not show respondents unified
intent to effect disruption or stoppage in their work. It also failed to show that their
purpose was to demand a force concession.
In the recent case of GSIS v. Kapisanan ng mga Manggagawa sa GSIS,[16] the Court upheld
the position of petitioner GSIS because its employees, numbering between 300 and 800
each day, staged a walkout and participated in a mass protest or demonstration outside
the GSIS for four straight days. We cannot say the same for the 20 or so employees in
this case. To equate their wearing of red shirts and going to the GSIS-IU office for just
over an hour with that four-day mass action in Kapisanan ng mga Manggagawa sa GSIS
case and to punish them in the same manner would most certainly be unfair and unjust.

ELISEO F. SORIANO, Petitioner,

vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE,
JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E.
ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing
and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA
CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as
complainants before the MTRCB, Respondents.
RESOLUTION

Recent analogous decisions in the United States, while recognizing the governments right as
an employer to lay down certain standards of conduct, tend to lean towards a broad
definition of public concern speech which is protected by their First Amendment. One
such case is that of Scott v. Meters.[17] In said case, the New York Transit Authority
(NYTA), responsible for operation of New York Citys mass transit service, issued a rule
prohibiting employees from wearing badges or buttons on their uniforms. A number of
union members wore union buttons promoting their opposition to a collective bargaining
agreement. Consequently, the NYTA tried to enforce its rule and threatened to subject
these union members to discipline. The court, though recognizing the governments
right to impose reasonable restrictions, held that the NYTAs rule was unconstitutionally
overboard.
In another case, Communication Workers of America v. Ector County Hospital District,[18] it
was held that,

78

A county hospital employees wearing of a Union Yes lapel pin during a union organization
drive constituted speech on a matter of public concern, and the countys proffered
interest in enforcing the anti-adornment provision of its dress code was outweighed by
the employees interest in exercising his First Amendment speech and associational
rights by wearing a pro-union lapel button.[19] Republic of the Philippines
SUPREME COURT
Manila

VELASCO, JR., J.:

Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the Decision of
the Court dated April 29, 2009, modifying that of the Movie and Television Review and
Classification Board (MTRCB) by imposing the penalty of three-month suspension on
the television show Ang Dating Daan, instead of on petitioner Soriano, as host of that
program.
Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension thus
meted out to the program constitutes prior restraint; (2) the Court erred in ruling that his
utterances1 did not constitute exercise of religion; (3) the Court erred in finding the
language used as offensive and obscene; (4) the Court should have applied its policy of
non-interference in cases of conflict between religious groups; and (5) the Court erred in
penalizing the television program for the acts of petitioner.
The motion has no merit.
Petitioners threshold posture that the suspension thus imposed constitutes prior restraint
and an abridgement of his exercise of religion and freedom of expression is a mere
rehash of the position he articulated in the underlying petitions for certiorari and
expounded in his memorandum.2 So are the supportive arguments and some of the
citations of decisional law, Philippine and American, holding it together. They have been

considered, sufficiently discussed in some detail, and found to be without merit in our
Decision. It would, thus, make little sense to embark on another lengthy discussion of
the same issues and arguments.
Suffice it to reiterate that the sanction imposed on the TV program in question does not,
under the factual milieu of the case, constitute prior restraint, but partakes of the nature
of subsequent punishment for past violation committed by petitioner in the course of the
broadcast of the program on August 10, 2004. To be sure, petitioner has not contested
the fact of his having made statements on the air that were contextually violative of the
programs "G" rating. To merit a "G" rating, the program must be "suitable for all ages,"
which, in turn, means that the "material for television [does not], in the judgment of the
[MTRCB], x x x contain anything unsuitable for children and minors, and may be viewed
without adult guidance or supervision."3 As previously discussed by the Court, the
vulgar language petitioner used on prime-time television can in no way be characterized
as suitable for all ages, and is wholly inappropriate for children.
Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise of
his religious beliefs and profession, as presiding minister of his flock, over the right and
duty of the state as parens patriae. Petitioners position may be accorded some cogency,
but for the fact that it fails to consider that the medium he used to make his statements
was a television broadcast, which is accessible to children of virtually all ages. As
already laid down in the Decision subject of this recourse, the interest of the government
in protecting children who may be subjected to petitioners invectives must take
precedence over his desire to air publicly his dirty laundry. The public soapbox that is
television must be guarded by the state, which purpose the MTRCB serves, and has
served, in suspending Ang Dating Daan for petitioners statements. As emphasized in
Gonzalez v. Kalaw Katigbak,4 the freedom of broadcast media is, in terms of degree of
protection it deserves, lesser in scope, especially as regards television, which reaches
every home where there is a set, and where children will likely be among the avid
viewers of the programs shown. The same case also laid the basis for the classification
system of the MTRCB when it stated, "It cannot be denied though that the State as
parens patriae is called upon to manifest an attitude of caring for the welfare of the
young."5
The penalty of suspension imposed on petitioner has driven him to liken the Court to "a blind
man who was asked to describe an elephant, and by his description he stubbornly
believed that an elephant is just the same as a Meralco post after touching one if its
legs."6 Petitioner makes this comparison with the view that the factual backdrop against
which his statements were made was purportedly not considered by the Court. As he
presently argues:
The Honorable Court should have rendered its decision in light of the surrounding
circumstances why and what prompted herein petitioner to utter those words. Clearly, he
was provoked because of the malicious and blatant splicing by the INC ministers of his
recorded voice. Verily, Petitioner submits that the choice of words he used has been
harsh but strongly maintains that the same was consistent with his constitutional right
of freedom of speech and religion.

79 Contrary to petitioners impression, the Court has, in fact, considered the factual antecedents
of and his motive in making his utterances, and has found those circumstances wanting

as defense for violating the programs "G" rating. Consider the following excerpts from
the Courts Decision:
There is nothing in petitioners statements subject of the complaints expressing any
particular religious belief, nothing furthering his avowed evangelical mission. The fact
that he came out with his statements in a televised bible exposition program does not
automatically accord them the character of a religious discourse. Plain and simple
insults directed at another person cannot be elevated to the status of religious speech.
Even petitioners attempts to place his words in context show that he was moved by
anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not convert the foul language used
in retaliation as religious speech. We cannot accept that petitioner made his statements
in defense of his reputation and religion, as they constitute no intelligible defense or
refutation of the alleged lies being spread by a rival religious group. They simply
illustrate that petitioner had descended to the level of name-calling and foul-language
discourse. Petitioner could have chosen to contradict and disprove his detractors, but
opted for the low road.
And just to set things straight, the penalty imposed is on the program, not on petitioner.
Petitioner would next have the Court adopt a hands-off approach to the conflict between him
and the Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni Cristo v. Court of
Appeals.7
Petitioners invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous.
Obviously, he fails to appreciate what the Court stated in that particular case when it
rejected the argument that a religious program is beyond MTRCBs review and
regulatory authority. We reproduce what the Court pertinently wrote in Iglesia ni Cristo:
We thus reject petitioners postulate that its religious program is per se beyond review by the
respondent [MTRCB]. Its public broadcast on TV of its religious program brings it out of
the bosom of internal belief. Television is a medium that reaches even the eyes and ears
of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e. serious detriment to the
more overriding interest of public health, public morals, or public welfare. A laissez faire
policy on the exercise of religion can be seductive to the liberal mind but history
counsels the Court against its blind adoption as religion is and continues to be a volatile
area of concern in our country today. Across the sea and in our shore, the bloodiest and
bitterest wars fought by men were caused by irreconcilable religious differences. Our
country is still not safe from the recurrence of this stultifying strife considering our
warring religious beliefs and the fanaticism with which some of us cling and claw to
these beliefs. x x x For when religion divides and its exercise destroys, the State should
not stand still.8 (Emphasis added.)
Lastly, petitioner claims that there was violation of due process of law, alleging that the
registered producer of the program is not a party to the proceedings. Hence, the
program cannot, so petitioner asserts, be penalized.

We will let the records speak for themselves to refute that argument.
As per petitioners admission in his petition for certiorari filed with the Court, he is "the
Executive Producer of Ang Dating Daan, a televised bible exposition program produced
by the Philippine-based religious organization, Church of God International."9 It is
unclear, then, which producer the movant is referring to in claiming that there was no
representation before the MTRCB. He was and is the representative of Ang Dating Daan,
and the claim that there was no due process of law is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the instant motion, certain
relevant issues have been raised by some members of the Court that ought to be
addressed if only to put things in their proper perspective. We refer to the matter of
obscenity.
As stressed at every possible turn in the challenged Courts Decision, the defining standards
to be employed in judging the harmful effects of the statements petitioner used would be
those for the average child, not those for the average adult. We note that the ratings and
regulation of television broadcasts take into account the protection of the child, and it is
from the childs narrow viewpoint that the utterances must be considered, if not
measured. The ratings "G," "PG" (parental guidance), "PG-13," and "R" (restricted or for
adults only) suggest as much. The concern was then, as now, that the program petitioner
hosted and produced would reach an unintended audience, the average child, and so it
is how this audience would view his words that matters. The average child would not be
concerned with colorful speech, but, instead, focus on the literal, everyday meaning of
words used. It was this literal approach that rendered petitioners utterances
obscene.1avvphi1

restriction of freedoms that may occur in imposing sanctions upon erring individuals
and institutions, but it cannot be over-emphasized that the freedoms encased in the Bill
of Rights are far from absolute. Each has its own limits, responsibilities, and obligations.
Everyone is expected to bear the burden implicit in the exercise of these freedoms. So it
must be here.
WHEREFORE, petitioners motion for reconsideration is hereby DENIED.
No further pleadings shall be entertained in this case. Let entry of judgment be made in due
course.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
Thus, respondents freedom of speech and of expression remains intact, and CSCs
Resolution No. 02-1316 defining what a prohibited concerted activity or mass action has
only tempered or regulated these rights. Measured against that definition, respondents
actuations did not amount to a prohibited concerted activity or mass action. The CSC
and the CA were both correct in arriving at said conclusion.
WHEREFORE, the assailed August 31, 2007 Decision of the Court of Appeals as well as its
October 16, 2007 Resolution in CA G.R. SP No. 98952 are hereby AFFIRMED.
SO ORDERED.

The Court has taken stock of Action for Childrens Television v. FCC,10 but finds this U.S.
case not to be of governing application to this jurisdiction under the present state of
things. The so-called "safe harbor" of 10:00 p.m. to 6:00 a.m., adverted to in Action for
Childrens Television as the time wherein broadcast of indecent material may be
permitted, is believed inapplicable here. As it were, there is no legislative enactment or
executive issuance setting a similar period in the Philippines wherein indecent material
may be broadcast. Rather than fix a period for allowing indecent programming, what is
used in this jurisdiction is the system of classification of television programs, which the
petitioner violated. His program was rated "G," purported to be suitable for all ages. We
cannot lose sight of the violation of his programs classification that carried with it the
producers implied assurance that the program did not contain anything unsuitable for
children and minors. The hour at which it was broadcasted was of little moment in light
of the guarantee that the program was safe for childrens viewing.

80

The suspension of the program has not been arrived at lightly. Taking into account all the
factors involved and the arguments pressed on the Court, the suspension of the
program is a sufficiently limited disciplinary action, both to address the violation and to
serve as an object lesson for the future. The likelihood is great that any disciplinary
action imposed on petitioner would be met with an equally energetic defense as has
been put up here. The simple but stubborn fact is that there has been a violation of
government regulations that have been put in place with a laudable purpose, and this
violation must accordingly be dealt with. We are not unmindful of the concerns on the

EN BANC
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South
Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M.
SANTOS, JR.,
Petitioners,
- versus ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE,
THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF
FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE,
Respondents.
x ------------------------------- x

DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act No.
9372 (RA 9372), An Act to Secure the State and Protect our People from Terrorism,
otherwise known as the Human Security Act of 2007,[1] signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos,
Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition
on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo
Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and
Center for Trade Union and Human Rights (CTUHR), represented by their respective
officers[3] who are also bringing the action in their capacity as citizens, filed a petition
for certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN),
General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action
(GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens
for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY),
Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan,
Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham,
represented by their respective officers,[4] and joined by concerned citizens and
taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr.,
Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired
Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato
Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a
petition for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church Peoples Response (PCPR), which were represented by their
respective officers[5] who are also bringing action on their own behalf, filed a petition for
certiorari and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea
III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R.
No. 179157.

81

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters

and organizations mostly based in the Southern Tagalog Region,[7] and individuals[8]
followed suit by filing on September 19, 2007 a petition for certiorari and prohibition
docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition
in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council[9]

composed of, at the time of the filing of the petitions, Executive Secretary Eduardo
Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and
Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National
Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo
Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that
of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen.
Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of
Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence
and investigative elements.
The petitions fail.
Petitioners resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or
quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how
respondents acted without or in excess of their respective jurisdictions, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting
requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis mota of the case.[10]
In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.[11]
Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule on
locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest
in a case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question on standing is
whether a party alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal
interest. It must show not only that the law or any governmental act is invalid, but also
that it sustained or is in immediate danger of sustaining some direct injury as a result of
its enforcement, and not merely that it suffers thereby in some indefinite way. It must
show that it has been or is about to be denied some right or privilege to which it is
lawfully entitled or that it is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show
that (1) it has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected
communist fronts by the government, especially the military; whereas individual
petitioners invariably invoke the transcendental importance doctrine and their status
as citizens and taxpayers.
While Chavez v. PCGG[13] holds that transcendental public importance dispenses with
the requirement that petitioner has experienced or is in actual danger of suffering direct
and personal injury, cases involving the constitutionality of penal legislation belong to
an altogether different genus of constitutional litigation. Compelling State and societal
interests in the proscription of harmful conduct, as will later be elucidated, necessitate
a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy.
None of them faces any charge under RA 9372.

82

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

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG)
correctly points out that petitioners have yet to show any connection between the
purported surveillance and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan,
PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No.
178581, would like the Court to take judicial notice of respondents alleged action of
tagging them as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription without following
the procedure under the law.[15] The petition of BAYAN-ST, et al. in G.R. No. 179461
pleads the same allegations.
The Court cannot take judicial notice of the alleged tagging of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the
matter must be one of common and general knowledge; (2) it must be well and
authoritatively settled and not doubtful or uncertain; and (3) it must be known to be
within the limits of the jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety. Hence, it can be said
that judicial notice is limited to facts evidenced by public records and facts of general
notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable.
Things of common knowledge, of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they may
be matters which are generally accepted by mankind as true and are capable of ready
and unquestioned demonstration. Thus, facts which are universally known, and which
may be found in encyclopedias, dictionaries or other publications, are judicially noticed,
provided, they are of such universal notoriety and so generally understood that they may
be regarded as forming part of the common knowledge of every person. As the common
knowledge of man ranges far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common knowledge. But a court cannot take
judicial notice of any fact which, in part, is dependent on the existence or non-existence
of a fact of which the court has no constructive knowledge.[16] (emphasis and
underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice.
Petitioners apprehension is insufficient to substantiate their plea. That no specific
charge or proscription under RA 9372 has been filed against them, three years after its
effectivity, belies any claim of imminence of their perceived threat emanating from the
so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed link to the CPP and NPA. They fail to

particularize how the implementation of specific provisions of RA 9372 would result in

direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the
United States of America[17] (US) and the European Union[18] (EU) have both classified
the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes
note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary
Raul Gonzales that the Arroyo Administration would adopt the US and EU classification
of the CPP and NPA as terrorist organizations.[19] Such statement notwithstanding,
there is yet to be filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA
9372 has been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely without any
threat of, much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list
Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda
Ilagan,[20] urged the government to resume peace negotiations with the NDF by
removing the impediments thereto, one of which is the adoption of designation of the
CPP and NPA by the US and EU as foreign terrorist organizations. Considering the
policy statement of the Aquino Administration[21] of resuming peace talks with the NDF,
the government is not imminently disposed to ask for the judicial proscription of the
CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.[22] Of recent development is the filing of the
first case for proscription under Section 17[23] of RA 9372 by the Department of Justice
before the Basilan Regional Trial Court against the Abu Sayyaf Group.[24] Petitionerorganizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution
under RA 9372 by alluding to past rebellion charges against them.

83

Conversely, previously filed but dismissed rebellion charges bear no relation to

prospective charges under RA 9372. It cannot be overemphasized that three years after
the enactment of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their
sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372
directing it to render assistance to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to
clothe the IBP or any of its members with standing.[27] The IBP failed to sufficiently
demonstrate how its mandate under the assailed statute revolts against its constitutional
rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single
arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
political surveillance, also lacks locus standi. Prescinding from the veracity, let alone
legal basis, of the claim of political surveillance, the Court finds that she has not
shown even the slightest threat of being charged under RA 9372. Similarly lacking in
locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who
cite their being respectively a human rights advocate and an oppositor to the passage of
RA 9372. Outside these gratuitous statements, no concrete injury to them has been
pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in
G.R. No. 178552 also conveniently state that the issues they raise are of transcendental
importance, which must be settled early and are of far-reaching implications, without
mention of any specific provision of RA 9372 under which they have been charged, or
may be charged. Mere invocation of human rights advocacy has nowhere been held
sufficient to clothe litigants with locus standi. Petitioners must show an actual, or
immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule
otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause
is an interest shared by the general public.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in
2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of
Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino
Ocampo of Bayan Muna.
Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua,
Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the
Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA,
PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.[26]

Neither can locus standi be conferred upon individual petitioners as taxpayers and
citizens. A taxpayer suit is proper only when there is an exercise of the spending or
taxing power of Congress,[28] whereas citizen standing must rest on direct and personal
interest in the proceeding.[29]

The dismissed rebellion charges, however, do not save the day for petitioners. For one,
those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by
this Court. For another, rebellion is defined and punished under the Revised Penal
Code. Prosecution for rebellion is not made more imminent by the enactment of RA
9372, nor does the enactment thereof make it easier to charge a person with rebellion, its
elements not having been altered.

It bears to stress that generalized interests, albeit accompanied by the assertion of a

public right, do not establish locus standi. Evidence of a direct and personal interest is
key.

RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens has
alleged any direct and personal interest in the implementation of the law.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.[30]
(emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,[31] the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after full
opportunity of argument by the parties. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate
or ripe for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion.[32]
Information Technology Foundation of the Philippines v. COMELEC[33] cannot be more
emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciabledefinite and
concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal right,
on the one hand, and a denial thereof on the other hand; that is, it must concern a real
and not merely a theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a
Highly Urbanized City was held to be premature as it was tacked on uncertain,
contingent events.[34] Similarly, a petition that fails to allege that an application for a
license to operate a radio or television station has been denied or granted by the
authorities does not present a justiciable controversy, and merely wheedles the Court to
rule on a hypothetical problem.[35]
The Court dismissed the petition in Philippine Press Institute v. Commission on
Elections[36] for failure to cite any specific affirmative action of the Commission on
Elections to implement the assailed resolution. It refused, in Abbas v. Commission on
Elections,[37] to rule on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of the Muslim Code and
those of the national law, there being no actual controversy between real litigants.

84

The list of cases denying claims resting on purely hypothetical or anticipatory grounds
goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified
by the requirement that there must be sufficient facts to enable the Court to intelligently
adjudicate the issues.[38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,[39] allowed
the pre-enforcement review of a criminal statute, challenged on vagueness grounds,
since plaintiffs faced a credible threat of prosecution and should not be required to
await and undergo a criminal prosecution as the sole means of seeking relief.[40] The
plaintiffs therein filed an action before a federal court to assail the constitutionality of the
material support statute, 18 U.S.C. 2339B (a) (1),[41] proscribing the provision of
material support to organizations declared by the Secretary of State as foreign terrorist
organizations. They claimed that they intended to provide support for the humanitarian
and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an
anticipatory petition clearly shows that the challenged prohibition forbids the conduct or
activity that a petitioner seeks to do, as there would then be a justiciable controversy.
[42]
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity
that they seek to do. No demonstrable threat has been established, much less a real and
existing one.
Petitioners obscure allegations of sporadic surveillance and supposedly being
tagged as communist fronts in no way approximate a credible threat of prosecution.
From these allegations, the Court is being lured to render an advisory opinion, which is
not its function.[43]
Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by double contingency, where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.[44]
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility is
not peculiar to RA 9372 since the exercise of any power granted by law may be abused.
[45] Allegations of abuse must be anchored on real events before courts may step in to
settle actual controversies involving rights which are legally demandable and
enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of
the crime of terrorism[46] under RA 9372 in that terms like widespread and

extraordinary fear and panic among the populace and coerce the government to give
in to an unlawful demand are nebulous, leaving law enforcement agencies with no
standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only to
free speech cases; and that RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to
outline the schools of thought on whether the void-for-vagueness and overbreadth
doctrines are equally applicable grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the
application of the two doctrines to free speech cases. They particularly cite Romualdez
v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section
5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague and
impermissibly broad. The Court stated that the overbreadth and the vagueness
doctrines have special application only to free-speech cases, and are not appropriate
for testing the validity of penal statutes.[50] It added that, at any rate, the challenged
provision, under which the therein petitioner was charged, is not vague.[51]
While in the subsequent case of Romualdez v. Commission on Elections,[52] the Court
stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless
proceeded to conduct a vagueness analysis, and concluded that the therein subject
election offense[53] under the Voters Registration Act of 1996, with which the therein
petitioners were charged, is couched in precise language.[54]
The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice Vicente V.
Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act
No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a facial invalidation as opposed to an as-applied challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify a
facial review of its validity. The pertinent portion of the Concurring Opinion of Justice
Mendoza, which was quoted at length in the main Estrada decision, reads:

85

A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent
value to all society of constitutionally protected expression is deemed to justify allowing
attacks on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity." The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be

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

statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for

deciding constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort," and is generally
disfavored. In determining the constitutionality of a statute, therefore, its provisions
which are alleged to have been violated in a case must be examined in the light of the
conduct with which the defendant is charged.[56] (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and
vagueness doctrines as grounds for a facial or as-applied challenge against a penal
statute (under a claim of violation of due process of law) or a speech regulation (under a
claim of abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on
the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government muscle.
[57] The overbreadth doctrine, meanwhile, decrees that a governmental purpose to
control or prevent activities constitutionally subject to state regulations may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.[58]
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from that
behavior, even though some of it is protected.[59]
A facial challenge is likewise different from an as-applied challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting
real litigants, a facial invalidation is an examination of the entire law, pinpointing its
flaws and defects, not only on the basis of its actual operation to the parties, but also on
the assumption or prediction that its very existence may cause others not before the
court to refrain from constitutionally protected speech or activities.[60]
Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.

86

The allowance of a facial challenge in free speech cases is justified by the aim to avert
the chilling effect on protected speech, the exercise of which should not at all times be
abridged.[62] As reflected earlier, this rationale is inapplicable to plain penal statutes
that generally bear an in terrorem effect in deterring socially harmful conduct. In fact,

the legislature may even forbid and penalize acts formerly considered innocent and
lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.[63]
The Court reiterated that there are critical limitations by which a criminal statute may
be challenged and underscored that an on-its-face invalidation of penal statutes x x x
may not be allowed.[64]
[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will impair the States
ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the States power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or overbroad, notwithstanding that the
law is clear as applied to him.[65] (Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited
to a facial kind of challenge and, owing to the given rationale of a facial challenge,
applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under
situations not before the court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the
litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception
to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant
claims that a statute is unconstitutional as applied to him or her; if the litigant prevails,
the courts carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted to raise the rights
of third parties; and the court invalidates the entire statute "on its face," not merely "as
applied for" so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of
the overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad laws "very existence may cause others not before the court
to refrain from constitutionally protected speech or expression." An overbreadth ruling

is designed to remove that deterrent effect on the speech of those third parties.[66]
(Emphasis in the original omitted; underscoring supplied.)

the offender is actuated by the desire to coerce the government to give in to an unlawful
demand.

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases,[67] observed that the US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First Amendment,[68] and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if
ever, will an overbreadth challenge succeed against a law or regulation that is not
specifically addressed to speech or speech-related conduct. Attacks on overly broad
statutes are justified by the transcendent value to all society of constitutionally
protected expression.[71]

In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of unlawful demand in the definition of
terrorism[77] must necessarily be transmitted through some form of expression
protected by the free speech clause.

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited
vagueness analysis of the definition of terrorism in RA 9372 is legally impermissible
absent an actual or imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation
of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner,
finding, however, that there was no basis to review the law on its face and in its
entirety.[72] It stressed that statutes found vague as a matter of due process typically
are invalidated only 'as applied' to a particular defendant.[73]
American jurisprudence[74] instructs that vagueness challenges that do not involve
the First Amendment must be examined in light of the specific facts of the case at hand
and not with regard to the statute's facial validity.
For more than 125 years, the US Supreme Court has evaluated defendants claims that
criminal statutes are unconstitutionally vague, developing a doctrine hailed as among
the most important guarantees of liberty under law.[75]
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
clause has been utilized in examining the constitutionality of criminal statutes. In at
least three cases,[76] the Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the crime of illegal
recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy
provision under Article 202 (2) of the Revised Penal Code.
Notably, the petitioners in
these three cases, similar to those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis
of its validity

87

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the
following elements may be culled: (1) the offender commits an act punishable under any
of the cited provisions of the Revised Penal Code, or under any of the enumerated
special penal laws; (2) the commission of the predicate crime sows and creates a
condition of widespread and extraordinary fear and panic among the populace; and (3)

The argument does not persuade. What the law seeks to penalize is conduct, not
speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate
crime actually committed to trigger the operation of the key qualifying phrases in the
other elements of the crime, including the coercion of the government to accede to an
unlawful demand. Given the presence of the first element, any attempt at singling out
or highlighting the communicative component of the prohibition cannot recategorize the
unprotected conduct into a protected speech.
Petitioners notion on the transmission of message is entirely inaccurate, as it unduly
focuses on just one particle of an element of the crime. Almost every commission of a
crime entails some mincing of words on the part of the offender like in declaring to
launch overt criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case[78]
illustrated that the fact that the prohibition on discrimination in hiring on the basis of
race will require an employer to take down a sign reading White Applicants Only hardly
means that the law should be analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct
alter neither the intent of the law to punish socially harmful conduct nor the essence of
the whole act as conduct and not speech. This holds true a fortiori in the present case
where the expression figures only as an inevitable incident of making the element of
coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal merely
because the conduct was, in part, initiated, evidenced, or carried out by means of
language, either spoken, written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it practically impossible ever
to enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.[79] (italics and underscoring
supplied)
Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.[80] Since speech is not involved here, the Court
cannot heed the call for a facial analysis.
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the
therein subject penal statute as applied to the therein petitioners inasmuch as they were
actually charged with the pertinent crimes challenged on vagueness grounds. The Court

in said cases, however, found no basis to review the assailed penal statute on its face
and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review
of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced
a credible threat of prosecution and should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief.
As earlier reflected, petitioners have established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of terrorism is thus legally impermissible. The Court reminds litigants that
judicial power neither contemplates speculative counseling on a statutes future effect
on hypothetical scenarios nor allows the courts to be used as an extension of a failed
legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.

88