1.

Constitutionality of checkpoints and areal target zonings

Valmonte v. De Villa
170 SCRA 256 (1989)
Valmonte v. De Villa
185 SCRA 665 (1990
People v. Exala
221 SCRA 494 (1993)
Guanzon v. De Villa
181 SCRA 623 (1990)
Abenes v. CA
515 SCRA 690 (2007)
2.

Wire tapping
REP. ACT NO. 4200

Gaanan v. IAC
3.
What may be seized
RULE 126, sec. 2
4.

145 SCRA 112 (1986)

Remedies in Cases of Violation

A. Exclusionary rule
Art. III sec. 3(2)

Stonehill v. Diokno
20 SCRA 383 (1967)
Pastrano v. CA (Waiver)
281 SCRA 254 (1997)
B. Civil Action for damages (Art. 32, NCC)
Aberca v. Ver
160 SCRA 590 (1988)
Forbes v. Chuoco Tiaco
16 Phil 534 (1910)
C. Criminal Cases Under Revised Penal Code
Articles 128, 129 and 130
5.

Requirements for Issuance of Warrants of Arrest

Section 6, Rule 112 Revised Rules on Criminal Procedure
Compare with Section 4, Rule 126
People v. Martinez
637 SCRA 791 (2010)
Luz v. People
667 SCRA 421 (2012)
People v. Mariano
685 SCRA 592 (2012)
6.

When arrest may be made without a warrant

Rule 113, Sec. 5

(a) Strict enforcement of rule

People v. Uybuco
Ambre v. People
People v. Villareal
People v. Collado
Warrantless Arrest
Warrantless Arrest and Warrantless
Search in Buy Bust

640 SCRA 146 (2011)

678 SCRA 552 (2012)
693 SCRA 532 (2013)
698 SCRA 628 (2013)
283 SCRA 190
607 SCRA 830 (2009)

(b)

Exceptions to strict enforcement

Illegal Possessions of guns or drugs
People v. Penaflorida
551 SCRA 111 (2008)
People v. Sembrano
628 SCRA 328 (2010)
(c) Waiver of Illegality of Arrest
People v. Racho

626 SCRA 633 (2010)

(d) Effects of Declaration of Illegal Arrest

People v. Biyoc
532 SCRA 528 (2007)
Valdez v. People
538 SCRA 611 (2007)
People v. Santos
555 SCRA 578 (2008)

7.

Immunity from arrest of members of Congress

Art. VI, sec. 11, 1987 Constitution

8.

Privacy (Art. III, Section 2)

Ople v. Torres
In re: Sabio
SJS v. DDB
Lee v. CA
Manila Electric v. Lim
Fernando v. St. Scho
In re: Rodriguez
Hing v. Choachuy
Right to Privacy
Concept of Privacy-Zones of Privacy

9.

293 SCRA 201 (1998)

504 SCRA 704 (2006)
579 SCRA 410 (2008)
625 SCRA 66 (2010)
632 SCRA 195 (2010)
693 SCRA 141 (2013)
696 SCRA 390 (2013)
699 SCRA 667 (2013)
293 SCRA 201

Privacy of Communications
Art. III, Section 3, 1987 Constitution

Zulueta v. CA
Ople v. Torres
In re: Alejano
KMU v. Director
In re Sabio

G.R. No. 198694

253 SCRA 699 (1996)

293 SCRA 141 (1998)
468 SCRA 188 (2205)
487 SCRA 623 (2006)
504 SCRA 214 (2006)

February 13, 2013

RAMON MARTINEZ y GOCO/RAMON GOCO y MARTINEZ @ MON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:

[G.R. No. 113269. April 10, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR CONDE y

LUTOC, ALLAN ATIS y ABET and ALEJANDRO PEREZ, JR. y
CARSILLAR, accused,
OSCAR CONDE y LUTOC, ALLAN ATIS y ABET, accused-appellants.

DECISION
QUISUMBING, J.:

G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S
RIGHTS (ULAP),petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.
Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:
This is a petition for prohibition with preliminary injunction and/or temporary restraining order,
seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional
and the dismantling and banning of the same or, in the alternative, to direct the respondents to
formulate guidelines in the implementation of checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of
the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner
Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association
whose members are all members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was activated
pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission
of conducting security operations within its area of responsibility and peripheral areas, for the
purpose of establishing an effective territorial defense, maintaining peace and order, and providing
an atmosphere conducive to the social, economic and political development of the National Capital
Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various
parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are
being subjected to regular searches and check-ups, especially at night or at dawn, without the
benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at

dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan,
was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint
along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner
Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was
stopped and his car subjected to search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a blanket authority to
make searches and/or seizures without search warrant or court order in violation of the
Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has
been presented before the Court to show that, in the course of their routine checks, the military
indeed committed specific violations of petitioners' right against unlawful search and seizure or other
rights.
In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's
Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege
that any of their rights were violated are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal right invocable
only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without
a search warrant by the military manning the checkpoints, without more, i.e., without stating the
details of the incidents which amount to a violation of his right against unlawful search and seizure,
is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but
is to be resolved according to the facts of each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked
on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not
constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace and order for the benefit of the public.
Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the
interest of public security. In this connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings
in cities of police and military men by NPA "sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all

of which are reported in media, most likely brought about by deteriorating economic conditions
which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the
inherent right of the state to protect its existence and promote public welfare and an individual's right
against a warrantless search which is howeverreasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society
and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a
review and refinement of the rules in the conduct of the police and military manning the checkpoints
was ordered by the National Capital Regional Command Chief and the Metropolitan Police
Director. 10
WHEREFORE, the petition is DISMISSED.
G.R. No. 83988 May 24, 1990
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S
RIGHTS (ULAP),petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.
Ricardo C. Valmonte for and in his own behalf and co-petitioners.

PADILLA, J.:
In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the
declaration of the checkpoints as unconstitutional and their dismantling and/or banning, was
dismissed.
Petitioners have filed the instant motion and supplemental motion for reconsideration of said
decision. Before submission of the incident for resolution, the Solicitor General, for the respondents,
filed his comment, to which petitioners filed a reply.
It should be stated, at the outset, that nowhere in the questioned decision did this Court
legalize all checkpoints, i.e. at all times and under all circumstances. What the Court declared is, that
checkpoints are not illegal per se.Thus, under exceptional circumstances, as where the survival of
organized government is on the balance, or where the lives and safety of the people are in grave
peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that

when the situation clears and such grave perils are removed, checkpoints will have absolutely no
reason to remain.
Recent and on-going events have pointed to the continuing validity and need for checkpoints
manned by either military or police forces. The sixth (6th) attempted coup d' etat (stronger than all
previous ones) was staged only last 1 December 1989. Another attempt at a coup d' etat is taken
almost for granted. The NPA, through its sparrow units, has not relented but instead accelerated its
liquidation of armed forces and police personnel. Murders, sex crimes, hold-ups and drug abuse
have become daily occurrences. Unlicensed firearms and ammunition have become favorite objects
of trade. Smuggling is at an all time high. Whether or not effective as expected, checkpoints have
been regarded by the authorities as a security measure designed to entrap criminals and insurgents
and to constitute a dragnet for all types of articles in illegal trade.
No one can be compelled, under our libertarian system, to share with the present government its
ideological beliefs and practices, or commend its political, social and economic policies or
performance. But, at least, one must concede to it the basic right to defend itself from its enemies
and, while in power, to pursue its program of government intended for public welfare; and in the
pursuit of those objectives, the government has the equal right, under its police power, to select the
reasonable means and methods for best achieving them. The checkpoint is evidently one of such
means it has selected.
Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free
passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention
of travellers during which the vehicle's occupants are required to answer a brief question or
two. 1 For as long as the vehicle is neither searched nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as
violative of an individual's right against unreasonable search.
These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S.
Supreme Court:
Routine checkpoint stops do not intrude similarly on the motoring public. First, the
potential interference with legitimate traffic is minimal. Motorists using these
highways are not taken by surprise as they know, or may obtain knowledge of, the
location of the checkpoints and will not be stopped elsewhere. Second, checkpoint
operations both appear to and actually involve less discretionary enforcement
activity. The regularized manner in which established checkpoints are operated is
visible evidence, reassuring to law-abiding motorists, that the stops are duly
authorized and believed to serve the public interest. The location of a fixed
checkpoint is not chosen by officers in the field, but by officials responsible for
making overall decisions as to the most effective allocation of limited enforcement
resources. We may assume that such officials will be unlikely to locate a checkpoint
where it bears arbitrarily or oppressively on motorists as a class, and since field
officers may stop only those cars passing the checkpoint, there is less room for
abusive or harassing stops of individuals than there was in the case of roving-patrol

stops. Moreover, a claim that a particular exercise of discretion in locating or

operating a checkpoint is unreasonable is subject to post-stop judicial review. 2
The checkpoints are nonetheless attacked by the movants as a warrantless search and seizure and,
therefore, violative of the Constitution. 3
As already stated, vehicles are generally allowed to pass these checkpoints after a routine
inspection and a few questions. If vehicles are stopped and extensively searched, it is because of
some probable cause which justifies a reasonable belief of the men at the checkpoints that either the
motorist is a law-offender or the contents of the vehicle are or have been instruments of some
offense. Again, as held by the U.S. Supreme Court
Automobiles, because of their mobility, may be searched without a warrant upon
facts not justifying a warrantless search of a residence or office. Brinegar v. United
States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302 (1949); Carroll v. United States, 267
US 132, 69 L Ed 543,45 S Ct 280, 39 ALR 790 (1925). The cases so holding have,
however, always insisted that the officers conducting the search have 'reasonable or
probable cause to believe that they will find the instrumentality of a crime or evidence
pertaining to a crime before they begin their warrantless search. ... 4
Besides these warrantless searches and seizures at the checkpoints are quite similar to searches
and seizures accompanying warrantless arrests during the commission of a crime, or immediately
thereafter. In People vs. Kagui Malasuqui it was held
To hold that no criminal can, in any case, be arrested and searched for the evidence
and tokens of his crime without a warrant, would be to leave society, to a large
extent, at the mercy of the shrewdest the most expert, and the most depraved of
criminals, facilitating their escape in many instances. 5
By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and
departure areas of an international airport, is a practice not constitutionally objectionable because it
is founded on public interest, safety, and necessity.
Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses
committed by the military manning the checkpoints. The Court's decision was concerned with power,
i.e. whether the government employing the military has the power to install said checkpoints. Once
that power is acknowledged, the Court's inquiry ceases. True, power implies the possibility of its
abuse. But whether there is abuse in a particular situation is a different "ball game" to be resolved in
the constitutional arena.
The Court, like all other concerned members of the community, has become aware of how some
checkpoints have been used as points of thievery and extortion practiced upon innocent civilians.
Even the increased prices of foodstuffs coming from the provinces, entering the Metro Manila area
and other urban centers, are largely blamed on the checkpoints, because the men manning them
have reportedly become "experts" in mulcting travelling traders. This, of course, is a national tragedy
.

But the Court could not a priori regard in its now assailed decision that the men in uniform are
rascals or thieves. The Court had to assume that the men in uniform live and act by the code of
honor and they are assigned to the checkpoints to protect, and not to abuse, the citizenry. 6 The
checkpoint is a military "concoction." It behooves the military to improve the QUALITY of their men
assigned to these checkpoints. For no system or institution will succeed unless the men behind it are
honest, noble and dedicated.
In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the
military is not above but subject to the law. And the courts exist to see that the law is supreme.
Soldiers, including those who man checkpoints, who abuse their authority act beyond the scope of
their authority and are, therefore, liable criminally and civilly for their abusive acts; 7 This tenet should
be ingrained in the soldiery in the clearest of terms by higher military authorities.
ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This denial
is FINAL.
SO ORDERED.
G.R. No. 76005. April 23, 1993.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODELIO C. EXALA, RESTITUTO B. BOCALAN and JAIME P. FERNANDEZ, accused,
RESTITUTO B. BOCALAN, accused-appellant.
The admissibility of the evidence seized from the accused at a checkpoint after being stopped for
routine inspection is put to test in this appeal from the decision 1 of the Regional Trial Court of Cavite
City finding inter alia accused-appellant Restituto B. Bocalan guilty beyond reasonable doubt of
violating Sec. 4, Art. II, of R.A. 6425, as amended, otherwise known as "The Dangerous Drugs Act of
1972."
On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant
Restituto B. Bocalan was stopped at a police checkpoint in Cavite City for routine inspection
regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime
P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went
near the jeep and asked the occupants if there were firearms inside. They answered in the negative.
Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black
leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked
what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused,
Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety.
Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as
"marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless
in their seats and appeared petrified with fear. They were brought to the police station that same
night for further investigation. 2

After laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp
otherwise known as marijuana. 3
Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly
charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended.
After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of
P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received
lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not.
Bocalan, whose punishment is reviewable only by this Court, is now before Us assailing his
conviction; hence, We deal only with him in this appeal.
Appellant Bocalan seeks exculpation by imputing ownership of the bag to Exala alone. 5 Bocalan
claims that while on the way to Cavite City, he and Fernandez offered Exala a ride. Exala accepted
the offer and requested Bocalan to make a detour to Salitran, Dasmarias, Cavite, where he was to
pick up some clothes. They agreed and Exala got the bag which he kept beside him all the time until
their apprehension at the checkpoint. 6
Bocalan further contends that the trial court erred in admitting the bag as evidence against him since
it was obtained through a warrantless search. 7
The protestations of Bocalan are devoid of merit. We agree with the trial court that the conduct of
Bocalan was not only unusual but also contrary to normal human experience. 8 He alleged that he
knew Exala only by face and had no personal association with him; 9 yet, on that eventful day of 2
November 1982, he agreed to detour to Salitran which was some fifteen (15) to twenty (20)
kilometers out of his way. Thus, his contention that it was Exala who owned the bag containing the
marijuana is hardly credible.
On the other hand, Exala declared that it was he who did not know the contents of the bag as it was
already in the jeep when he boarded it. Exala asserted that it was either Bocalan or Fernandez who
owned the bag. Exala swore that Bocalan and Fernandez offered him P5,000.00, later raised to
P10,000.00, to take the blame alone, but he refused. 10
Proof of ownership is immaterial where the accused is charged with the unlawful transportation of
marijuana. 11 Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of
the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited
drug. The law simply provides thus
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The
penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand
pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall
act as a broker in any of such transactions. If the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed."

Nonetheless, there is substantial evidence to prove that Bocalan was directly involved in the
unlawful dispatch in transit or transport of marijuana. The evidence of the prosecution, particularly
the testimonies of Pfc. Ricardo Galang and Pat. Rosauro de Guzman, belies the defense of Bocalan
and establishes beyond cavil that he was caught in flagrante delicto of transporting the prohibited
drug; that he was the driver of the jeep owned by his father that carried the stuff; and, that he was in
fact the owner of the bag. The trial court noted that Bocalan picked up Fernandez and Exala one
after the other to accompany him to the place where the bag of marijuana was taken and to help him
bring the marijuana to Cavite City. 12 Regardless of the degree of participation of Fernandez and
Exala, Bocalan is correctly punished for his direct involvement in the crime.
Such factual conclusions by the trial court relative to the credibility of witnesses are entitled to great
respect and are generally sustained by the appellate court unless some material facts have been
overlooked or misconstrued as to affect the result. 13 There is none in this case on appeal.
We turn to the legal question on the admissibility of the marijuana as evidence in the light of
Bocalan's contention that it was seized without a valid search warrant. Since the search was
conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest.
This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of
the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is
deemed to have waived his objection on the legality of the search and the admissibility of the
evidence obtained in the course thereof. 14 In view of such waiver, the court is bound to admit the
evidence. 15 But even assuming arguendo that there was no waiver, still appellant's contention
deserves scant consideration.
There are indeed instances where search and seizure can be effected without necessarily being
preceded by an arrest. 16 An illustration would be the "stop-and-search" without a warrant at military
or police checkpoints, the constitutionality of which has already been upheld by this Court. 17
Vehicles are generally allowed to pass through these checkpoints after a routine inspection and
answering a few questions. If vehicles are stopped and extensively searched it is because of some
probable cause which justifies a reasonable belief of those manning the checkpoints that either the
motorist is a law-offender or the contents of the vehicle are or have been instruments in the
commission of an offense. 18 However, lest it be misunderstood, this doctrine is not intended to do
away with the general rule that no person shall be subjected to search of his person, personal
effects and belongings, or his residence except of virtue of a search warrant or on the occasion of a
lawful arrest. 19 The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at
a military or police checkpoint.
The checkpoint in the instant case was established in line with "Operational Bakal" the main object
of which was to search for unlicensed firearms and other prohibited items in the possession of
unauthorized persons passing through it. 20 When the jeep carrying the contraband passed through
the checkpoint, it was flagged down and the occupants were asked routine questions. In the course
thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the
contents of the bag were. None of the accused answered. At that moment, the demeanor of the
accused changed; they became suspiciously quiet and nervous as if they were concealing
something from Pfc. Galang. The accused clearly appeared to be in abject fear of being discovered.

Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear
normal, provided the probable cause justifying a more extensive search that led to the opening of the
bag and the discovery of the prohibited stuff. Significantly, there was no sign of any protest or
objection to the search. The accused remained silent even after their arrest.
Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any
protest on their part when arrested, not only casts serious doubts on their professed innocence 21
but also confirms their acquiescence to the search. 22 Clearly then, there was waiver of the right
against unreasonable search and seizure. 23 In one case 24 We held
". . . When one voluntarily submits to a search or consents to have it made of his person or
premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed.,
Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be
waived and such waiver may be made either expressly or impliedly" (emphasis supplied).
The arrest of the three (3) accused was lawful because it was made upon the discovery of the
prohibited drug in their possession. There was no need for a warrant; the arrest was made while a
crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the
1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. 25 The
accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec.
4, Art. II, of R.A. 6425, as amended.
The alleged contradiction between the sworn statements of Pfc. Galang and Pat. de Guzman was
explained in their separate testimonies and, in any event, has been resolved by the trial court as a
factual issue. We find no reason to reverse its findings.
Anent the argument that the three (3) accused should not have been assigned different levels of
liability, suffice it to say that whether a principal, co-principal or conspirator, accused-appellant would
have been meted out the same penalty imposed by the trial court.
WHEREFORE, there being no reversible error in the decision appealed from finding accusedappellant RESTITUTO B. BOCALAN guilty beyond reasonable doubt of the crime charged, the same
is AFFIRMED, with costs against him.
SO ORDERED.
Grio-Aquino and Quiason, JJ ., concur.
Separate Opinions
CRUZ, J., dissenting:
I dissent, for the reasons expressed in my dissenting opinions in Valmonte v. de Villa, 185 SCRA
665/178 SCRA 211, and People v. Malmstedt, 198 SCRA 401, and the following additional
observations.

I am opposed to checkpoints as regular police measures aimed at reducing criminality in general. I

do not agree that in the interest of peace and order, any or every vehicle may be stopped at any time
by the authorities and searched without warrant on the chance that it may be carrying prohibited
articles. That possibility is not the probable cause envisioned in the Bill of Rights.
In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The
search is made as a matter of course, either of all vehicles or at random. There is no showing that a
crime is about to be committed, is actually being committed, or has just been committed and the
searching officer has personal knowledge that the person being searched or arrested is the culprit.
I will concede that checkpoints may be established at borders of states or at "constructive borders"
near the boundary for the purpose of preventing violations of immigration and customs laws. But in
the interior of the territory, the requirements of a valid search and seizure must be strictly observed.
The only permissible exemption is where a crime like a bank robbery has just been committed or a
jailbreak has just occurred, and the authorities have to seal off all possible avenues of escape in the
area. In all other cases, I submit that the checkpoint should not be allowed.
I realize that this view would result in the inadmissibility of the of the seized marijuana as evidence
against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot
retroactively validate an illegal search on the justification that, after all, the articles seized are illegal.
That is putting the cart before the horse. I would rather see some criminals go unpunished now and
then than agree to the Bill of Rights being systematically ignored in the oppressive checkpoint.
Respect for the Constitution is more important than securing a conviction based on a violation of the
rights of the accused.
G.R. No. 80508 January 30, 1990
EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN
BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA JOAQUIN, CRESTITA
LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA
RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO,
ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES,
BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO
MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA
LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO,
ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES, ROSARIO
SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners,
vs.
MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for prohibition with preliminary injunction to prohibit the military and police officers
represented by public respondents from conducting "Areal Target Zonings" or "Saturation Drives" in
Metro Manila.
The forty one (41) petitioners state that they are all of legal age, bona fide residents of Metro Manila
and taxpayers and leaders in their respective communities. They maintain that they have a common
or general interest in the preservation of the rule of law, protection of their human rights and the
reign of peace and order in their communities. They claim to represent "the citizens of Metro Manila
who have similar interests and are so numerous that it is impracticable to bring them all before this
Court."
The public respondents, represented by the Solicitor General, oppose the petition contending inter
alia that petitioners lack standing to file the instant petition for they are not the proper parties to
institute the action.
According to the petitioners, the following "saturation drives" were conducted in Metro Manila:
1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo, Manila.
2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and San Sebastian Street,
Tondo, Manila.
3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.
4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to
Happy Land, Magsaysay Village, Tondo, Manila.
5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street, Tondo,
Manila.
6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro Manila.
7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.
8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.
9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.
10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City.
11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.
12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.
According to the petitioners, the "areal target zonings" or saturation drives" are in critical areas
pinpointed by the military and police as places where the subversives are hiding. The arrests range

from seven (7) persons during the July 20 saturation drive in Bangkusay, Tondo to one thousand five
hundred (1,500) allegedly apprehended on November 3 during the drive at Lower Maricaban, Pasay
City. The petitioners claim that the saturation drives follow a common pattern of human rights
abuses. In all these drives, it is alleged that the following were committed:
1. Having no specific target house in mind, in the dead of the night or early morning
hours, police and military units without any search warrant or warrant of arrest
cordon an area of more than one residence and sometimes whole barangay or areas
of barangay in Metro Manila. Most of them are in civilian clothes and without
nameplates or identification cards.
2. These raiders rudely rouse residents from their sleep by banging on the walls and
windows of their homes, shouting, kicking their doors open (destroying some in the
process), and then ordering the residents within to come out of their respective
residences.
3. The residents at the point of high-powered guns are herded like cows, the men are
ordered to strip down to their briefs and examined for tattoo marks and other
imagined marks.
4. While the examination of the bodies of the men are being conducted by the
raiders, some of the members of the raiding team force their way into each and every
house within the cordoned off area and then proceed to conduct search of the said
houses without civilian witnesses from the neighborhood.
5. In many instances, many residents have complained that the raiders ransack their
homes, tossing about the residents' belongings without total regard for their value. In
several instances, walls are destroyed, ceilings are damaged in the raiders' illegal
effort to 'fish' for incriminating evidence.
6. Some victims of these illegal operations have complained with increasing
frequency that their money and valuables have disappeared after the said
operations.
7. All men and some women who respond to these illegal and unwelcome intrusions
are arrested on the spot and hauled off to waiting vehicles that take them to
detention centers where they are interrogated and 'verified.' These arrests are all
conducted without any warrants of arrest duly issued by a judge, nor under the
conditions that will authorize warrantless arrest. Some hooded men are used to
fingerpoint suspected subversives.
8. In some instances, arrested persons are released after the expiration of the period
wherein they can be legally detained without any charge at all. In other instances,
some arrested persons are released without charge after a few days of arbitrary
detention.

9. The raiders almost always brandish their weapons and point them at the residents
during these illegal operations.
10. Many have also reported incidents of on-the-spotbeatings, maulings and
maltreatment.
11. Those who are detained for further 'verification' by the raiders are subjected to
mental and physical torture to extract confessions and tactical information. (Rollo, pp.
2-4)
The public respondents stress two points in their Comment which was also adopted as their
Memorandum after the petition was given due course.
First, the respondents have legal authority to conduct saturation drives. And second, they allege that
the accusations of the petitioners about a deliberate disregard for human rights are total lies.
Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section
17 of the Constitution which provides:
The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied )
They also cite Section 18 of the same Article which provides:
The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. ...
There can be no question that under ordinary circumstances, the police action of the nature
described by the petitioners would be illegal and blantantly violative of the express guarantees of the
Bill of Rights. If the military and the police must conduct concerted campaigns to flush out and catch
criminal elements, such drives must be consistent with the constitutional and statutory rights of all
the people affected by such actions.
There is, of course, nothing in the Constitution which denies the authority of the Chief Executive,
invoked by the Solicitor General, to order police actions to stop unabated criminality, rising
lawlessness, and alarming communist activities. The Constitution grants to Government the power to
seek and cripple subversive movements which would bring down constituted authority and substitute
a regime where individual liberties are suppressed as a matter of policy in the name of security of
the State. However, all police actions are governed by the limitations of the Bill of Rights. The
Government cannot adopt the same reprehensible methods of authoritarian systems both of the right
and of the left, the enlargement of whose spheres of influence it is trying hard to suppress. Our
democratic institutions may still be fragile but they are not in the least bit strengthened through
violations of the constitutional protections which are their distinguishing features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated:

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

[1886]). In the same vein, Landynski in his authoritative work (Search and Seizure
and the Supreme Court [1966]), could fitly characterize constitutional right as the
embodiment of a spiritual concept: the belief that to value the privacy of home and
person and to afford its constitutional protection against the long reach of
government is no less than to value human dignity, and that his privacy must not be
disturbed except in case of overriding social need, and then only under stringent
procedural safeguards. (ibid, p. 74.)
The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed. 183
[1952]) emphasizes clearly that police actions should not be characterized by methods that offend a
sense of justice. The court ruled:
Applying these general considerations to the circumstances of the present case, we
are compelled to conclude that the proceedings by which this conviction was
obtained do more than offend some fastidious squeamishness or private
sentimentalism about combatting crime too energetically. This is conduct that shocks
the conscience. Illegally breaking into the privacy of the petitioner, the struggle to
open his mouth and remove what was there, the forcible extraction of his stomach's
contents this course of proceeding by agents of government to obtain evidence is
bound to offend even hardened sensibilities. They are methods too close to the rack
and the screw to permit of constitutional differentiation.
It is significant that it is not the police action perse which is impermissible and which should be
prohibited. Rather, it is the procedure used or in the words of the court, methods which "offend even
hardened sensibilities." InBreithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]), the same court
validated the use of evidence, in this case blood samples involuntarily taken from the petitioner,
where there was nothing brutal or offensive in the taking. The Court stated:
Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in
the taking of a sample of blood when done, as in this case, under the protective eye
of a physician. To be sure, the driver here was unconscious when the blood was
taken, but the absence of conscious consent, without more, does not necessarily
render the taking a violation of a constitutional light; and certainly the rest was
administered here would not be considered offensive by even the most delicate.
Furthermore, due process is not measured by the yardstick of personal reaction or
the sphygmogram of the most sensitive person, but by that whole community sense
of 'decency and fairness that has been woven by common experience into the fabric
of acceptable conduct....
The individual's right to immunity from such invasion of his body was considered as "far outweighed
by the value of its deterrent effect" on the evil sought to be avoided by the police action.
It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the
exact facts surrounding a particular case.

The violations of human rights alleged by the petitioners are serious. If an orderly procedure
ascertains their truth, not only a writ of prohibition but criminal prosecutions would immediately issue
as a matter of course. A persistent pattern of wholesale and gross abuse of civil liberties, as alleged
in the petition, has no place in civilized society.
On the other hand, according to the respondents, the statements made by the petitioners are a
complete lie.
The Solicitor General argues:
This a complete lie.
Just the contrary, they had been conducted with due regard to human rights. Not only
that, they were intelligently and carefully planned months ahead of the actual
operation. They were executed in coordination with barangay officials who pleaded
with their constituents to submit themselves voluntarily for character and personal
verification. Local and foreign correspondents, who had joined these operations,
witnessed and recorded the events that transpired relative thereto. (After Operation
Reports: November 5, 1987, Annex 12; November 20, 1987, Annex 13; November
24, 1987, Annex 14). That is why in all the drives so far conducted, the alleged
victims who numbered thousands had not themselves complained.
In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo,
President Aquino branded all accusations of deliberate disregard for human rights as
'total lies'. Here are excerpts from her strongest speech yet in support of the military:
All accusations of a deliberate disregard for human rights have been shown- up to be
total lies.
...To our soldiers, let me say go out and fight, fight with every assurance that I will
stand by you through thick and thin to share the blame, defend your actions, mourn
the losses and enjoy with you the final victory that I am certain will be ours.
You and I will see this through together.
I've sworn to defend and uphold the Constitution.
We have wasted enough time answering their barkings for it is still a long way to
lasting peace. . . . The dangers and hardships to our men in the field are great
enough as it is without having them distracted by tills worthless carping at their
backs.
Our counter-insurgency policy remains the same: economic development to pull out
the roots-and military operations to slash the growth of the insurgency.
The answer to terror is force now.

Only feats of arms can buy us the time needed to make our economic and social
initiatives bear fruit. . . Now that the extreme Right has been defeated, I expect
greater vigor in the prosecution of the war against the communist insurgency, even
as we continue to watch our backs against attacks from the Right. (Philippine Star,
January 27, 1988, p. 1, Annex 15; emphasis supplied)
Viewed in the light of President Aquino's observation on the matter, it can be said that
petitioners misrepresent as human rights violations the military and police's zealous
vigilance over the people's right to live in peace and safety. (Rollo, pp. 36-38)
Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of
allegations. According to the petitioners, more than 3,407 persons were arrested in the saturation
drives covered by the petition. No estimates are given for the drives in Block 34, Dagat-dagatan,
Navotas; Apelo Cruz Compound, Pasig; and Sun Valley Drive near the Manila International Airport
area. Not one of the several thousand persons treated in the illegal and inhuman manner described
by the petitioners appears as a petitioner or has come before a trial court to present the kind of
evidence admissible in courts of justice. Moreover, there must have been tens of thousands of
nearby residents who were inconvenienced in addition to the several thousand allegedly arrested.
None of those arrested has apparently been charged and none of those affected has apparently
complained.
A particularly intriguing aspect of the Solicitor General's comments is the statement that local and
foreign co-respondents actually joined the saturation drives and witnessed and recorded the events.
In other words, the activities sought to be completely proscribed were in full view of media. The sight
of hooded men allegedly being used to fingerpoint suspected subversives would have been good
television copy. If true, this was probably effected away from the ubiquitous eye of the TV cameras
or, as the Solicitor General contends, the allegation is a "complete lie."
The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of
the Philippines sought to overthrow the present Government introduces another aspect of the
problem and illustrates quite clearly why those directly affected by human rights violations should be
the ones to institute court actions and why evidence of what actually transpired should first be
developed before petitions are filed with this Court.
Where there is large scale mutiny or actual rebellion, the police or military may go in force to the
combat areas, enter affected residences or buildings, round up suspected rebels and otherwise quell
the mutiny or rebellion without having to secure search warrants and without violating the Bill of
Rights. This is exactly what happened in the White Plains Subdivision and the commercial center of
Makati during the first week of December, 1989.
The areal target zonings in this petition were intended to flush out subversives and criminal elements
particularly because of the blatant assassinations of public officers and police officials by elements
supposedly coddled by the communities where the "drives" were conducted.
It is clear from the pleadings of both petitioners and respondents, however, that there was no
rebellion or criminal activity similar to that of the attempted coup d' etats. There appears to have

been no impediment to securing search warrants or warrants of arrest before any houses were
searched or individuals roused from sleep were arrested. There is no strong showing that the
objectives sought to be attained by the "areal zoning" could not be achieved even as the rights of
squatter and low income families are fully protected.
Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the
duty of the court to stop the transgression and state where even the awesome power of the state
may not encroach upon the rights of the individual. It is the duty of the court to take remedial action
even in cases such as the present petition where the petitioners do not complain that they were
victims of the police actions, where no names of any of the thousands of alleged victims are given,
and where the prayer is a general one to stop all police "saturation drives," as long as the Court is
convinced that the event actually happened.
The Court believes it highly probable that some violations were actually committed. This is so inspite
of the alleged pleas of barangay officials for the thousands of residents "to submit themselves
voluntarily for character and personal verification." We cannot imagine police actions of the
magnitude described in the petitions and admitted by the respondents, being undertaken without
some undisciplined soldiers and policemen committing certain abuses. However, the remedy is not
to stop all police actions, including the essential and legitimate ones. We see nothing wrong in police
making their presence visibly felt in troubled areas. Police cannot respond to riots or violent
demonstrations if they do not move in sufficient numbers. A show of force is sometimes
necessary as long as the rights of people are protected and not violated. A blanket prohibition such
as that sought by the petitioners would limit all police actions to one on one confrontations where
search warrants and warrants of arrests against specific individuals are easily procured. Anarchy
may reign if the military and the police decide to sit down in their offices because all concerted drives
where a show of force is present are totally prohibited.
The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not one
victim complains and not one violator is properly charged, the problem is not initially for the Supreme
Court. It is basically one for the executive departments and for trial courts. Well meaning citizens
with only second hand knowledge of the events cannot keep on indiscriminately tossing problems of
the executive, the military, and the police to the Supreme Court as if we are the repository of all
remedies for all evils. The rules of constitutional litigation have been evolved for an orderly
procedure in the vindication of rights. They should be followed. If our policy makers sustain the
contention of the military and the police that occasional saturation drives are essential to maintain
the stability of government and to insure peace and order, clear policy guidelines on the behavior of
soldiers and policemen must not only be evolved, they should also be enforced. A method of
pinpointing human rights abuses and identifying violators is necessary.
The problem is appropriate for the Commission on Human Rights. A high level conference should
bring together the heads of the Department of Justice, Department of National Defense and the
operating heads of affected agencies and institutions to devise procedures for the prevention of
abuses.
Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can
order prosecuted. In the absence of clear facts ascertained through an orderly procedure, no

permanent relief can be given at this time. Further investigation of the petitioners' charges and a
hard look by administration officials at the policy implications of the prayed for blanket prohibition are
also warranted.
In the meantime and in the face of a prima facie showing that some abuses were probably
committed and could be committed during future police actions, we have to temporarily restrain the
alleged banging on walls, the kicking in of doors, the herding of half-naked men to assembly areas
for examination of tattoo marks, the violation of residences even if these are humble shanties of
squatters, and the other alleged acts which are shocking to the conscience.
WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon,
and Pasay City where the petitioners may present evidence supporting their allegations and where
specific erring parties may be pinpointed and prosecuted.
Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of
Justice, the Secretary of National Defense, and the Commanding General PC-INP for the drawing up
and enforcement of clear guidelines to govern police actions intended to abate riots and civil
disturbances, flush out criminal elements, and subdue terrorist activities.
In the meantime, the acts violative of human rights alleged by the petitioners as committed during
the police actions are ENJOINED until such time as permanent rules to govern such actions are
promulgated.
4200
AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS
OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.
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 dictaphone 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, 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.
Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done
any of the acts declared to be unlawful in the preceding section or who violates the provisions of the
following section or of any order issued thereunder, or aids, permits, or causes such violation shall,

upon conviction thereof, be punished by imprisonment for not less than six months or more than six
years and with the accessory penalty of perpetual absolute disqualification from public office if the
offender be a public official at the time of the commission of the offense, and, if the offender is an
alien he shall be subject to deportation proceedings.
Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any
peace officer, who is authorized by a written order of the Court, to execute any of the acts declared
to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage,
provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and
proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to
sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act
No. 616, punishing espionage and other offenses against national security:Provided, That such
written order shall only be issued or granted upon written application and the examination under oath
or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are
reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed
or is being committed or is about to be committed: Provided, however, That in cases involving the
offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon
prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being
committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential
to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes;
and (3) that there are no other means readily available for obtaining such evidence.
The order granted or issued shall specify: (1) the identity of the person or persons whose
communications, conversations, discussions, or spoken words are to be overheard, intercepted, or
recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the
telephone number involved and its location; (2) the identity of the peace officer authorized to
overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3)
the offense or offenses committed or sought to be prevented; and (4) the period of the authorization.
The authorization shall be effective for the period specified in the order which shall not exceed sixty
(60) days from the date of issuance of the order, unless extended or renewed by the court upon
being satisfied that such extension or renewal is in the public interest.
All recordings made under court authorization shall, within forty-eight hours after the expiration of the
period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and
shall be accompanied by an affidavit of the peace officer granted such authority stating the number
of recordings made, the dates and times covered by each recording, the number of tapes, discs, or
records included in the deposit, and certifying that no duplicates or copies of the whole or any part
thereof have been made, or if made, that all such duplicates or copies are included in the envelope
or package deposited with the court. The envelope or package so deposited shall not be opened, or
the recordings replayed, or used in evidence, or their contents revealed, except upon order of the
court, which shall not be granted except upon motion, with due notice and opportunity to be heard to
the person or persons whose conversation or communications have been recorded.
The court referred to in this section shall be understood to mean the Court of First Instance within
whose territorial jurisdiction the acts for which authority is applied for are to be executed.

Section 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.
Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly
amended.
Section 6. This Act shall take effect upon its approval.
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known
as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the
prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would
constitute unlawful interception of communications between the two parties using a telephone line.
The facts presented by the People and narrated in the respondent court's decision are not disputed
by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client
Manuel Montebon were in the living room of complainant's residence discussing the
terms for the withdrawal of the complaint for direct assault which they filed with the
Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided
on the proposed conditions, complainant made a telephone call to Laconico (tsn,
August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to his
office and advise him on the settlement of the direct assault case because his regular
lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request,
appellant went to the office of Laconico where he was briefed about the problem.
(Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to the
telephone conversation through a telephone extension so as to hear personally the
proposed conditions for the settlement. Appellant heard complainant enumerate the
following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased
to P8,000.00. A breakdown of the P8,000.00 had been made together with other
demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for
Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault
against Atty. Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco
Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don
Bosco Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed
against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's
affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed
later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the
mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico if he was
agreeable to the conditions. Laconico answered 'Yes'. Complainant then told
Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983,
pp. 2-12).
Complainant called up again and instructed Laconico to give the money to his wife at
the office of the then Department of Public Highways. Laconico who earlier alerted
his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine
Constabulary, insisted that complainant himself should receive the money. (tsn,
March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant,
complainant was arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard
complainant demand P8,000.00 for the withdrawal of the case for direct assault.
Laconico attached the affidavit of appellant to the complainant for robbery/extortion
which he filed against complainant. Since appellant listened to the telephone
conversation without complainant's consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan
and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to
one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the
appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding
that the communication between the complainant and accused Laconico was private in nature and,
therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without
the knowledge and consent of the complainant; and that the extension telephone which was used by
the petitioner to overhear the telephone conversation between complainant and Laconico is covered
in the term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the
following issues; (a) whether or not the telephone conversation between the complainant and
accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the
term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had
authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200
is ambiguous and, therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 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 be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceeding 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, 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.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence.
The issue is not the admissibility of evidence secured over an extension line of a telephone by a
third party. The issue is whether or not the person called over the telephone and his lawyer listening
to the conversation on an extension line should both face prison sentences simply because the
extension was used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused
Atty. Laconico was "private" in the sense that the words uttered were made between one person and
another as distinguished from words between a speaker and a public. It is also undisputed that only
one of the parties gave the petitioner the authority to listen to and overhear the caller's message with
the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine
bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have
his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's
Office if he knew that another lawyer was also listening. We have to consider, however, that
affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone
line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It
would be the word of the caller against the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and the extra
heavy loads which telephone cables are made to carry in certain areas, telephone users often
encounter what are called "crossed lines". An unwary citizzen who happens to pick up his telephone
and who overhears the details of a crime might hesitate to inform police authorities if he knows that
he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the
private communications of the would be criminals. Surely the law was never intended for such
mischievous results.
The main issue in the resolution of this petition, however, revolves around the meaning of the phrase
"any other device or arrangement." Is an extension of a telephone unit such a device or arrangement
as would subject the user to imprisonment ranging from six months to six years with the accessory
penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private
secretaries with extension lines to their bosses' telephones are sometimes asked to use answering
or recording devices to record business conversations between a boss and another businessman.
Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that
matter, would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not included in the enumeration
of "commonly known" listening or recording devices, nor do they belong to the same class of
enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill
No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension
telephones were already widely used instruments, probably the most popularly known
communication device.
Whether or not listening over a telephone party line would be punishable was discussed on the floor
of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in
the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or
walkie talkie or tape recorder or however otherwise described." The omission was not a mere
oversight. Telephone party lines were intentionally deleted from the provisions of the Act.
The respondent People argue that an extension telephone is embraced and covered by the term
"device" within the context of the aforementioned law because it is not a part or portion of a complete
set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus
consisting of a wire and a set of telephone receiver not forming part of a main telephone set which

can be detached or removed and can be transferred away from one place to another and to be
plugged or attached to a main telephone line to get the desired communication corning from the
other party or end.
The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of
secretly overhearing, intercepting, or recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a device or arrangement in order to
overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the
other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as
"tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed
for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory
construction that in order to determine the true intent of the legislature, the particular clauses and
phrases of the statute should not be taken as detached and isolated expressions, but the whole and
every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of
Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of
a contract may be, they shall not be understood to comprehend things that are
distinct and cases that are different from those upon which the parties intended to
agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations
of a contract shall be interpreted together, attributing to the doubtful ones that sense
which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in
paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory
and should not be construed as to comprehend all other obligations of the decedent.
The rule that 'particularization followed by a general expression will ordinarily be
restricted to the former' is based on the fact in human experience that usually the
minds of parties are addressed specially to the particularization, and that the
generalities, though broad enough to comprehend other fields if they stood alone, are
used in contemplation of that upon which the minds of the parties are centered.
(Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in
Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to
that enumerated therein, should be construed to comprehend instruments of the same or similar
nature, that is, instruments the use of which would be tantamount to tapping the main line of a
telephone. It refers to instruments whose installation or presence cannot be presumed by the party
or parties being overheard because, by their very nature, they are not of common usage and their
purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended
unit does not have to be connected by wire to the main telephone but can be moved from place ' to
place within a radius of a kilometer or more. A person should safely presume that the party he is
calling at the other end of the line probably has an extension telephone and he runs the risk of a
third party listening as in the case of a party line or a telephone unit which shares its line with
another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):
Common experience tells us that a call to a particular telephone number may cause
the bell to ring in more than one ordinarily used instrument. Each party to a
telephone conversation takes the risk that the other party may have an extension
telephone and may allow another to overhear the conversation. When such takes
place there has been no violation of any privacy of which the parties may complain.
Consequently, one element of 605, interception, has not occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if
instead of repeating the message he held out his hand-set so that another could hear out of it and
that there is no distinction between that sort of action and permitting an outsider to use an extension
telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the
accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is
included in the phrase "device or arrangement", the penal statute must be construed as not including
an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the
rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the tenderness of the
law of the rights of individuals; the object is to establish a certain rule by conformity to
which mankind would be safe, and the discretion of the court limited. (United States
v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26
F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA
821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty
person to escape punishment through a technicality but to provide a precise
definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's
Handbook on Statutory Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative
measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of
the Senate Congressional Records will show that not only did our lawmakers not contemplate the
inclusion of an extension telephone as a prohibited device or arrangement" but of greater
importance, they were more concerned with penalizing the act of recording than the act of merely
listening to a telephone conversation.
xxx xxx xxx

Senator Taada. Another possible objection to that is entrapment

which is certainly objectionable. It is made possible by special
amendment which Your Honor may introduce.
Senator Diokno.Your Honor, I would feel that entrapment would be
less possible with the amendment than without it, because with the
amendment the evidence of entrapment would only consist of
government testimony as against the testimony of the defendant.
With this amendment, they would have the right, and the government
officials and the person in fact would have the right to tape record
their conversation.
Senator Taada. In case of entrapment, it would be the government.
Senator Diokno. In the same way, under this provision, neither party
could record and, therefore, the court would be limited to saying:
"Okay, who is more credible, the police officers or the defendant?" In
these cases, as experienced lawyers, we know that the Court go with
the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these
conditions, with an agent outside listening in, he could falsify the
testimony and there is no way of checking it. But if you allow him to
record or make a recording in any form of what is happening, then
the chances of falsifying the evidence is not very much.
Senator Taada. Your Honor, this bill is not intended to prevent the
presentation of false testimony. If we could devise a way by which we
could prevent the presentation of false testimony, it would be
wonderful. But what this bill intends to prohibit is the use of tape
record and other electronic devices to intercept private conversations
which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through punishment, persons such
as government authorities or representatives of organized groups from installing devices in order to
gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage
over the telephone users. Consequently, the mere act of listening, in order to be punishable must
strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are
of the view that an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court
dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the
crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.
SO ORDERED.
G.R. No. L-19550

June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin1 hereinafter referred to
as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges
issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the Constitution
and the Rules of Court because, inter alia: (1) they do not describe with particularity the
documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were
actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners

in deportation cases filed against them; (4) the searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction,
and prayed that, pending final disposition of the present case, a writ of preliminary injunction be
issued restraining Respondents-Prosecutors, their agents and /or representatives from using the
effects seized as aforementioned or any copies thereof, in the deportation cases already adverted
to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants
and declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices of
the aforementioned corporations, and (b) those found and seized in the residences of petitioners
herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission of said
papers in evidence belongsexclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers

were unlawfully seized and thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have
been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights
of defendants whose property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of
the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued
by this Court,12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners herein.
1wph1.t

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants
and that accordingly, the seizures effected upon the authority there of are null and void. In this
connection, the Constitution13 provides:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth
in said provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, nospecific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a given provision
of our criminal laws. As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to

convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," as alleged in the aforementioned applications without
reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above
quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen,
in times of keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in connection with one specific offense." Not satisfied with
this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,
portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance sheets and related profit and
loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights that the things to be seized be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even
if the searches and seizures under consideration were unconstitutional, the documents, papers and
things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation,
however, we are unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the criminal should
not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other
than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such other legal remedies as may be provided by other
laws.

However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution. The efforts of the courts and
their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are
led by it to close the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific
guarantee against that very same unlawful conduct. We hold that all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible
in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by
the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and underserving of mention in
a perpetual charter of inestimable human liberties, so too, without that rule the freedom from
state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that
the Court held in Wolf that the amendment was applicable to the States through the Due
Process Clause, the cases of this Court as we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included the exclusion of the evidence seized in

violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when
conceded operatively enforceable against the States, was not susceptible of destruction by
avulsion of the sanction upon which its protection and enjoyment had always been deemed
dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally unreasonable searches state
or federal it was logically and constitutionally necessarily that the exclusion doctrine an
essential part of the right to privacy be also insisted upon as an essential ingredient of the
right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege
and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the
only effectively available way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for
a search warrant has competent evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then there is no reason why the applicant
should not comply with the requirements of the fundamental law. Upon the other hand, if he has no
such competent evidence, then it is not possible for the Judge to find that there is probable cause,
and, hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But,
then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed By agents
of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power
they do not have. Regardless of the handicap under which the minority usually but,
understandably finds itself in prosecuting agents of the majority, one must not lose sight of the
fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of
the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, notin their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution
sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being
best to leave the matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with
the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.

[G.R. No. 104504. October 31, 1997]

PEDRITO PASTRANO, petitioner vs. HON. COURT OF APPEALS and

the PEOPLE OF THE PHILIPPINES,respondents.
DECISION

MENDOZA, J.:

This is a petition for review on certiorari of the decision of the Court of

Appeals, affirming the conviction of petitioner Pedrito Pastrano of the crime of
Illegal Possession of Firearms by the Regional Trial Court of Oroquieta City,
Branch 13.
The facts are as follows:
On February 13, 1989, a group of students went to see Capt. Rodolfo
Maoza, then intelligence operations officer of the Philippine Constabulary, at
Camp Naranjo, at Oroquieta City. They reported having seen Clyde Pastrano
beaten up by his father, petitioner Pedrito Pastrano. The students were willing
to testify but expressed fear of the petitioner who, according to them, had
firearms. Clyde Pastrano had died and it was suspected he had been the
victim of foul play.
On February 20, 1989, two sons of Pedrito Pastrano by his estranged wife
- James Clement G. Pastrano and Clinton Steve G. Pastrano - also saw Capt.
Maoza, seeking his assistance in connection with the death of their brother
Clyde. The brothers reported that their father and his common-law wife were
keeping unlicensed firearms in their house. They executed a joint affidavit on
February 20, 1989 in which they stated that they had personal knowledge of
the fact that their father Pedrito Pastrano was keeping three (3) firearms of
different calibers in the bedroom of his house.
On the basis of the affidavit of the Pastrano brothers, Capt. Maoza applied
for a search warrant on the same day.
After examining complainant and the two brothers, Judge Teodorico M.
Durias of the Municipal Trial Court of Oroquieta City (Branch I) issued a
search warrant which Capt. Maoza and his men later served at the residence
of Pedrito Pastrano at Capitol Drive, Oroquieta City. Seized from petitioners
dwelling was a sack containing the following:
One (1) Revolver Cal. 22 Magnum with Serial No. 07345. Made in Germany
ROHMGMBH SONTHEM/BRENZ;

One (1) round ammunition for Cal. 22 Magnum;

One (1) Revolver Cal. 32 with Serial No. 233833 Colt Made in U.S.A.;
Six rounds of live Ammunition for Cal. 32 revolver.
On the basis of the evidence thus seized, petitioner Pedrito Pastrano y
Capapas and his common-law wife, Erlinda Ventir y Sanchez, were charged
with Illegal Possession of Firearms and Ammunition as penalized under P.D.
No. 1866, 1. The information against them alleged:
That on or about the 20th day of February 1989 and during the period prior thereto, in
Barangay Lower Langcangan, Oroquieta City, Philippines and within the jurisdiction
of this Honorable Court, the said accused conspiring together and collaborating with
each other, did then and there keep, possess and maintain at their residence known as
Door #1, Aguja Apartment, Capitol Drive, Lower Langcangan, Oroquieta City, the
following firearms:
One (1) Revolver Cal. 22 Magnum with Serial No. 07345, Made in Germany
ROHM GMBH SONTHEM/BRENZ;
One (1) round Ammunitions for Cal. 22 Magnum;
One (1) Revolver Cal. 32 with serial No. 233833 Colt. Made in U.S.A.;
Six (6) rounds live ammunition for Cal. 32 Revolver.
Without having the necessary license, authority and/or permit duly issued to or
granted them by the proper government agency/official as determined by law.
Contrary to law.
On January 14, 1991, the trial court rendered a decision finding petitioner
guilty, even as it found his common-law wife, Erlinda Ventir, innocent of the
charge. The dispositive portion of its decision read:
WHEREFORE, this Court finds accused Erlinda Ventir innocent of the crime charged
but finds accused Pedrito Pastrano guilty beyond reasonable doubt of illegal
possession of firearms and ammunitions for which he is sentenced to suffer an

indeterminate penalty of TEN (10) YEARS and ONE (1) DAY ofprision mayor, as
minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS and ONE (1) DAY
reclusion temporal, as maximum. No pronouncement as to costs.
SO ORDERED.
On appeal, the Court of Appeals upheld the decision of the trial court.
Hence, this petition for review.
Petitioner contends:
1. The Court of Appeals erred as a matter of law in affirming the findings of the
trial court convicting the accused of the crime of illegal possession of firearms
despite clear and convincing proof that accused is duly authorized to carry
firearms per PTCFOR No. 40448 and Mission Order No. 01-06-89.
2. The Search Warrant issued by Judge Teodorico Durias is invalid for failure to
comply with the basic requirements of the Constitution. Hence, the evidence
obtained is inadmissible in court.
The first ground for the petition is without merit. P.D. No. 1866, 1 punishes
any person who shall unlawfully manufacture, deal in, acquire, dispose, or
possess any firearm, part of firearm, ammunition or machinery tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition. Section 2 of the Rules and Regulations Implementing P.D. No.
1866 provides that
Any person or entity desiring to import, manufacture, deal in, receive, acquire, buy,
sell, dispose of or possess any firearm, part of firearms, ammunition, or explosives or
machi-nery, tool or instrument used or intended to be used in the manufacture of any
firearm, parts of firearm, ammunition or explosives shall first secure the necessary
permit/license/authority from the Chief of Constabulary, except that in the case of
application to manufacture firearms, ammunition or explosives, the corresponding
permit/license shall be issued, only with the prior approval of the President.
The possession of any firearm without the requisite permit/license is thus
unlawful. In this case two witnesses for the prosecution, both from the
Philippine Constabulary, testified that petitioner had no license to possess the

firearms seized from him. Sgt. Eugenio Salingay, officer-in-charge of the

licensing of firearms at Camp Naranjo in Oroquieta City, testified that
petitioner and his common-law wife Erlinda Ventir were not in the list of
registered firearm holders in Misamis Occidental. Neither did they have any
pending application for a gun permit.
Capt. Rodolfo Maoza, on the other hand, testified that he had made
inquiries from the Southern Command in Zamboanga City whether the
firearms seized from petitioner were organic firearms of that command and
was informed that they did not belong to that command. He also inquired from
the commanding officer of the 55th Infantry Battalion whether Pedrito
Pastrano and Erlinda Ventir were members of the Citizens Armed Forces
Geographical Unit (CAFGU) in Oroquieta City, and he found they were not.
Petitioner admitted ownership of the .32 cal. revolver bearing Serial No.
233833 (Exh. J) but claimed that the .22 cal. magnum revolver with Serial No.
07345 (Exh. I) belonged to his cousin, a certain Luz Laspias, who gave it to
him merely for safekeeping. Petitioner claimed that he had bought the .32 cal.
revolver in January 1989 from the grandson of the late Atty. Felipe Tac-an who
had a license to possess the gun. Petitioner produced a Mission Order dated
January 9, 1989 issued to him by Lt. Col. Celso A. Undag, Philippine Army,
Deputy Brigade Commander, and a Mission Order issued to Luz Laspias, also
by Lt. Col. Undag, as authority for them to possess the firearms in
question.He also presented a Permit to Carry Firearm Outside of Residence
dated January 1, 1989 signed by Major General Ramon Montao, then chief of
the Philippine Constabulary, for the firearm he purchased and another Permit
to Carry Firearm Outside of Residence issued to Luz Laspias for the latters
gun.
The trial court and the Court of Appeals both ruled that the Mission Orders
and the Permits to Carry Firearm Outside of Residence did not give petitioner
authority to possess the firearms in question. We agree. It is clear from P.D.
No. 1866, 1 and the Implementing Rules, 2 that a license is necessary in
order to possess a firearm. A Permit to Carry Firearm Outside Residence
does not render the license unnecessary because its purpose is only to
authorize its holder to carry the firearm outside his residence. A Permit to
Carry a Firearm Outside the Residence presupposes that the party to whom it

is issued is duly licensed to possess the firearm in question. This is clear from
the following provision of the Implementing Rules:
3. Authority of private individuals to carry firearms outside of residence.
a. As a rule, persons who are lawful holders of firearms (regular license, special
permit, certificate of registration or M/R) are prohibited from carrying their firearms
outside of residence.
b. However, the Chief of Constabulary may, in meritorious cases as determined by
him and under such conditions as he may impose, authorize such person or persons to
carry firearm outside [of] resi-dence.
c. Except otherwise provided in Secs. 4 and 5 hereof, station in pursuance of an
official mission or duty shall have the prior approval of the Chief of Constabulary.
For the same reason, a Mission Order cannot take the place of a
license. As the trial court pointed out:
Sec. 1(d) of the implementing rules and regulations of P.D. No. 1866 defines a
mission order as a written directive or order issued by competent authority to persons
under his supervision and control for a definite purpose or objective during a specified
period and to such place or places as therein mentioned which may entitle the bearer
thereof to carry his duly issued or licensed firearm outside of his residence when so
specified therein.
As in the case of Permit to Carry Firearm Outside the Residence, a Mission
Order can only be issued to the holder of a permit/license or authority to
possess firearm.
Nor is there any merit in petitioners contention that since the .32 cal.
revolver is covered by a license issued to its former owner, petitioners
possession of the same firearm is legal. The permit/license or authority to
possess firearm contemplated by P.D. No. 1866 and its Implementing Rules is
one which is issued to the applicant taking into account his
qualifications. Contrary to petitioners contention, therefore, the possession of
firearms is unlike the registration of motor vehicles. A permit/license or

authority to possess firearms is not transferrable to the purchaser of the

firearm.
The second ground for the present petition is that the evidence against
petitioner was obtained through illegal search. Petitioner cites the
constitutional provision that
no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination 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.
[1]

Petitioner contends that Capt. Rodolfo Maoza, who applied for the search
warrant, did not have personal knowledge of the facts on which the warrant
was based. But the trial court actually examined the two brothers, James
Clement G. Pastrano and Clinton G. Steve Pastrano. These two were the
ones who reported the matter to Capt. Maoza. They gave information of the
illegal possession of firearms by their father, petitioner herein, on the basis of
personal knowledge. Their testimonies, not that of Capt. Maoza, formed the
basis of the trial courts finding of probable cause for the issuance of a search
warrant. As Capt. Maoza testified:
[2]

Q: When Clinton and James Pastrano went to your office on February 20, 1989, and
told you that their father and his paramour possessed some firearms, what steps
did you take?
A: I applied for a Search Warrant and brought the two brothers before Judge Durias.
....
Q: What happen[ed] after that, when you filed this application for Search Warrant with
the Municipal Trial Court in Cities, Branch 1, Oroquieta City, what happen[ed]
when you filed?
A: Judge Durias examined the two witnesses, the two brothers, and after that, he
issued the Search Warrant.

Petitioner finally assails the absence of a written deposition showing that

the judge had examined the complainant and his witnesses by means of

searching questions in writing and under oath as required by Rule 126, 4 of

the Rules on Criminal Procedure, to wit:
4. Examination of complainant, record. - The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and
under oath the complainant and any witnesses he may produce on facts personally
known to them and attach to the record their sworn statements together with any
affidavits submitted.
Rule 126, 4 indeed requires the examination of the complainant and his
witnesses to be put in writing and under oath. But although this is a ground for
quashing a search warrant in this case, petitioner did nothing to this end. He
did not move to quash the information before the trial court. Nor did he object
to the presentation of the evidence obtained as being the product of an illegal
search. In the case ofDemaisip v. Court of Appeals, we held:
[3]

[4]

At any rate, objections to the legality of the search warrant and to the admissibility of
the evidence obtained thereby were deemed waived when no objection to the legality
of the search warrant was raised during the trial of the case nor to the admissibility of
the evidence obtained through said warrant.
Petitioner thus waived any objection based on the illegality of the
search. As held in People v. Omaweng, the right to be secure against
unreasonable searches and seizures, like any other right, can be waived and
the waiver may be made either expressly or impliedly.
[5]

We find that the prosecution clearly established the elements of the crime
charged and that the Court of Appeals and the trial court correctly found
petitioner guilty beyond reasonable doubt of the crime of Illegal Possession of
Firearms and Ammunition.
We hold, however, that the penalty imposed on petitioner should be
modified by reducing it, in view of R.A. No. 8294, which took effect on July 6,
1997. Penal statutes are to be retroactively applied insofar as they are
favorable to the accused. Under the new statute, the penalty for Illegal
Possession of Firearm has been reduced to prision correccional maximum
and a fine of not less than P15,000.00 with respect to the possession of the .
[6]

32 cal. revolver and to prision mayor minimum and a fine of P30,000.00 with
respect to the possession of the .22 cal. Magnum revolver. Additional benefit
would redound to petitioner because the Indeterminate Sentence Law will
have to be applied.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the
modification that petitioner is hereby SENTENCED to 4 years, 2 months, and
1 day of prision correccional maximum, as minimum, to 6 years and 8 months
of prision mayor minimum, as maximum, and a fine of P30,000.00, for his
illegal possession of the .22 cal. Magnum revolver; and to 2 years, 4 months,
and 1 day ofprision correccional, as minimum, to 4 years, 9 months, and 11
days of prision correccional, as maximum, and a fine of P15,000.00 for his
possession of the .32 cal. revolver.
G.R. No. L-69866 April 15, 1988
ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA
FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ,
ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH
OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO,
ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners,
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO
B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M. LACSON, MAJ.
RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO
RICARDO, 1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL
COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

YAP, J.:
This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the
question whether the suspension of the privilege of the writ of habeas corpus bars a civil action for
damages for illegal searches conducted by military personnel and other violations of rights and
liberties guaranteed under the Constitution. If such action for damages may be maintained, who can
be held liable for such violations: only the military personnel directly involved and/or their superiors
as well.
This case stems from alleged illegal searches and seizures and other violations of the rights and
liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known as
Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes
against known communist-terrorist (CT) underground houses in view of increasing reports about CT

plans to sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying with said
order, elements of the TFM raided several places, employing in most cases defectively issued
judicial search warrants; that during these raids, certain members of the raiding party confiscated a
number of purely personal items belonging to plaintiffs; that plaintiffs were arrested without proper
warrants issued by the courts; that for some period after their arrest, they were denied visits of
relatives and lawyers; that plaintiffs were interrogated in violation of their rights to silence and
counsel; that military men who interrogated them employed threats, tortures and other forms of
violence on them in order to obtain incriminatory information or confessions and in order to punish
them; that all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan
to forcibly extract information and incriminatory statements from plaintiffs and to terrorize, harass and
punish them, said plans being previously known to and sanctioned by defendants.
Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the
amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the amount
of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less
than P200,000.00.
A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito
Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of their
detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas
corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are
immune from liability for acts done in the performance of their official duties; and (3) the complaint
states no cause of action against the defendants. Opposition to said motion to dismiss was filed by
plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and
Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan
Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz,
Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7,
1983, a Consolidated Reply was filed by defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge
Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained, lock,
stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into the
circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the
writ of habeas corpus is suspended; (2) that assuming that the court can entertain the present action,
defendants are immune from liability for acts done in the performance of their official duties; and (3) that
the complaint states no cause of action against defendants, since there is no allegation that the
defendants named in the complaint confiscated plaintiffs' purely personal properties in violation of their
constitutional rights, and with the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido
Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise direct
supervision and control of their subordinates or that they had vicarious liability as employers under Article
2180 of the Civil Code. The lower court stated, "After a careful study of defendants' arguments, the court
finds the same to be meritorious and must, therefore, be granted. On the other hand, plaintiffs' arguments
in their opposition are lacking in merit."
A motion to set aside the order dismissing the complaint and a supplemental motion for
reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983,
respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of

plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales, Pedro B.
Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and
Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further
proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal to
Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid
pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion
that the undersigned has no authority or jurisdiction to resolve said pending motion." This order
prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the name of the
Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo,
Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the defendants filed a
comment on said amplificatory motion for reconsideration.
In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on
the motion to set aside order of November 8, 1983, issued an order, as follows:
It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca,
Danilo de la Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno,
Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex
Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio
Beltran, Alfredo Mansos represented by counsel, Atty. Rene Sarmiento, and Rolando
Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to
reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed
an appeal therefrom within the reglementary period, as prayed for by the defendants,
said Order is now final against said plaintiffs.
Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May
28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo,
Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin
failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within
the reglementary period. Plaintiffs claimed that the motion to set aside the order of November 8,
1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs, although signed
by only some of the lawyers.
In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to
reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution of
November 8, 1983 had already become final, and (2) to set aside its resolution of November 8, 1983
granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21,
1984, the respondent court resolved:
(1) That the motion to set aside the order of finality, dated May 11, 1984, of the
Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la
Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino,
Alfredo Mansos and Rolando Salutin is deed for lack of merit;

(2) For lack of cause of action as against the following defendants, to wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado Lantoria, Jr.
5. Col. Galileo Montanar
6. Col. Panfilo Lacson
7. Capt. Danilo Pizaro
8. 1 Lt Pedro Tango
9. Lt. Romeo Ricardo
10. Lt. Raul Bacalso
the motion to set aside and reconsider the Resolution of dismissal of the present
action or complaint, dated November 8, 1983, is also denied but in so far as it affects
and refers to defendants, to wit:
1. Major Rodolfo Aguinaldo, and
2. Master Sgt. Bienvenido Balaba
the motion to reconsider and set aside the Resolution of dismissal dated November
3, 1983 is granted and the Resolution of dismissal is, in this respect, reconsidered
and modified.
Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set
aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its
resolution dated September 21, 1984. Respondents were required to comment on the petition, which
it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.
We find the petition meritorious and decide to give it due course.
At the heart of petitioners' complaint is Article 32 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:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process
(7) of law;
(8) The right to a just compensation when private property is taken for public use;
(9) The right to the equal protection of the laws;
(10) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(11) The liberty of abode and of changing the same;
(12) The privacy of cmmunication and correspondence;
(13) The right to become a member of associations or societies for purposes not
contrary to law;
(14) The right to take part in a peaceable assembly to petition the Government for
redress of grievances;
(15) The right to be free from involuntary servitude in any form;
(16) The rigth of the accused against excessive bail;
(17) The rigth of the aaccused to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy and public
trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witness in behalf;
(18) Freedom from being compelled to be a witness against ones self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward to

make such confession, except when the person confessing becomes a State
witness;
(19) Freedom from excessive fines or cruel and unusual punishment, unless the
same is imposed or inflicted in accordance with a statute which has not been
judicially declared unconstitutional; and
(20) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the against grieved party has a right to
commence an entirely separate and distinct civil action for damages, and for other
relief. Such civil action shall proceed independently of any criminal prosecution (if the
latter be instituted), and may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code or other penal statute.
It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply
cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek
to violate those sacred rights with impunity. In times of great upheaval or of social and political
stress, when the temptation is strongest to yield borrowing the words of Chief Justice Claudio
Teehankee to the law of force rather than the force of law, it is necessary to remind ourselves that
certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or
imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our
commitment to democratic principles and to the rule of law compels us to reject the view which
reduces law to nothing but the expression of the will of the predominant power in the community.
"Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him
who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a
minimum of Idealism. On going to the bottom of the matter, we discover that life demands of us a
certain residuum of sentiment which is not derived from reason, but which reason nevertheless
controls. 2
Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as
public officers they are covered by the mantle of state immunity from suit for acts done in the
performance of official duties or function In support of said contention, respondents maintain that
Respondents are members of the Armed Forces of the Philippines. Their primary
duty is to safeguard public safety and order. The Constitution no less provides that
the President may call them "to prevent or supress lawless violence, invasion,
insurrection or rebellion, or imminent danger thereof." (Constitution, Article VII,
Section 9).

On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law
but providing for the continued suspension of the privilege of the writ of habeas
corpus in view of the remaining dangers to the security of the nation. The
proclamation also provided "that the call to the Armed Forces of the Philippines to
prevent or suppress lawless violence, insuitection rebellion and subversion shall
continue to be in force and effect."
Petitioners allege in their complaint that their causes of action proceed from
respondent General Ver's order to Task Force Makabansa to launch pre-emptive
strikes against communist terrorist underground houses in Metro Manila. Petitioners
claim that this order and its subsequent implementation by elements of the task force
resulted in the violation of their constitutional rights against unlawful searches,
seizures and arrest, rights to counsel and to silence, and the right to property and
that, therefore, respondents Ver and the named members of the task force should be
held liable for damages.
But, by launching a pre-emptive strike against communist terrorists, respondent
members of the armed forces merely performed their official and constitutional
duties. To allow petitioners to recover from respondents by way of damages for acts
performed in the exercise of such duties run contrary to the policy considerations to
shield respondents as public officers from undue interference with their duties and
from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1
Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the
performance of governmental and public functions from being harassed unduly or
constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v.
Paredes, 79 Phil. 819).
xxx xxx xxx
The immunity of public officers from liability arising from the performance of their
duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v.
Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631;
Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894;
Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de Leune,
602 F. 2d 198; Sami v. US, 617 F. 2d 755).
Respondents-defendants who merely obeyed the lawful orders of the President and
his call for the suppression of the rebellion involving petitioners enjoy such immunity
from Suit. 3
We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The
cases invoked by respondents actually involved acts done by officers in the performance of official
duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4
No one can be held legally responsible in damages or otherwise for doing in a legal
manner what he had authority, under the law, to do. Therefore, if the Governor-

General had authority, under the law to deport or expel the defendants, and
circumstances justifying the deportation and the method of carrying it out are left to
him, then he cannot be held liable in damages for the exercise of this power.
Moreover, if the courts are without authority to interfere in any manner, for the
purpose of controlling or interferring with the exercise of the political powers vested in
the chief executive authority of the Government, then it must follow that the courts
cannot intervene for the purpose of declaring that he is liable in damages for the
exeercise of this authority.
It may be that the respondents, as members of the Armed Forces of the Philippines, were merely
responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection,
rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite
the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch preemptive strikes against alleged communist terrorist underground houses. But this cannot be
construed as a blanket license or a roving commission untramelled by any constitutional restraint, to
disregard or transgress upon the rights and liberties of the individual citizen enshrined in and
protected by the Constitution. The Constitution remains the supreme law of the land to which all
officials, high or low, civilian or military, owe obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public officer or employee or any private individual
liable in damages for violating the Constitutional rights and liberties of another, as enumerated
therein, does not exempt the respondents from responsibility. Only judges are excluded from liability
under the said article, provided their acts or omissions do not constitute a violation of the Penal
Code or other penal statute.
This is not to say that military authorities are restrained from pursuing their assigned task or carrying
out their mission with vigor. We have no quarrel with their duty to protect the Republic from its
enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert
our democratic institutions and imperil their very existence. What we are merely trying to say is that
in carrying out this task and mission, constitutional and legal safeguards must be observed,
otherwise, the very fabric of our faith will start to unravel. In the battle of competing Ideologies, the
struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological
struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be
abandoned.
We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the
suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners
cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at
the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief
they ask by the present action is indemnification for alleged damages they suffered, their causes of
action are inextricably based on the same claim of violations of their constitutional rights that they
invoked in the habeas corpus case as grounds for release from detention. Were the petitioners
allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will
take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by
the President, petitioners will be able to do by the mere expedient of altering the title of their action."

We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the
writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal
arrest and detention and other violations of their constitutional rights. The suspension does not
render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the
individual to seek release from detention through the writ of habeas corpus as a speedy means of
obtaining his liberty.
Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly
recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to
its text:
However, when the action (for injury to the rights of the plaintiff or for a quasi-delict)
arises from or out of any act, activity or conduct of any public officer involving the
exercise of powers or authority arising from Martial Law including the arrest,
detention and/or trial of the plaintiff, the same must be brought within one (1) year.
Petitioners have a point in contending that even assuming that the suspension of the privilege of the
writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and
detention, it does not and cannot suspend their rights and causes of action for injuries suffered
because of respondents' confiscation of their private belongings, the violation of their right to remain
silent and to counsel and their right to protection against unreasonable searches and seizures and
against torture and other cruel and inhuman treatment.
However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25,
1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045
and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question
therefore has become moot and academic.
This brings us to the crucial issue raised in this petition. May a superior officer under the notion of
respondent superior be answerable for damages, jointly and severally with his subordinates, to the
person whose constitutional rights and liberties have been violated?
Respondents contend that the doctrine of respondent superior is applicable to the case. We agree.
The doctrine of respondent superior has been generally limited in its application to principal and
agent or to master and servant (i.e. employer and employee) relationship. No such relationship
exists between superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32.
The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the
violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the
one directly responsible) who must answer for damages under Article 32; the person indirectly
responsible has also to answer for the damages or injury caused to the aggrieved party.
By this provision, the principle of accountability of public officials under the Constitution 5 acquires
added meaning and asgilrnes a larger dimension. No longer may a superior official relax his vigilance or
abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for

the transgressions committed by the latter against the constitutionally protected rights and liberties of the
citizen. Part of the factors that propelled people power in February 1986 was the widely held perception
that the government was callous or indifferent to, if not actually responsible for, the rampant violations of
human rights. While it would certainly be go naive to expect that violators of human rights would easily be
deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms
that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for
the transgression joint tortfeasors.

In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col.
Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo
Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their
subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as
defendants on the ground that they alone 'have been specifically mentioned and Identified to have
allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical
violence constitute a delict or wrong that gave rise to a cause of action. But such finding is not
supported by the record, nor is it in accord with law and jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged
physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the act
of violating or in any manner impeding or impairing any of the constitutional rights and liberties
enumerated therein, among others
1. Freedom from arbitrary arrest or illegal detention;
2. The right against deprivation of property without due process of law;
3. The right to be secure in one's person, house, papers and effects against
unreasonable searches and seizures;
4. The privacy of communication and correspondence;
5. Freedom from being compelled to be a witness against one's self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward to
make a confession, except when the person confessing becomes a state witness.
The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs'
constitutional rights and liberties mentioned in Article 32 of the Civil Code were violated and impaired
by defendants. The complaint speaks of, among others, searches made without search warrants or
based on irregularly issued or substantially defective warrants; seizures and confiscation, without
proper receipts, of cash and personal effects belonging to plaintiffs and other items of property which
were not subversive and illegal nor covered by the search warrants; arrest and detention of plaintiffs
without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at
several undisclosed places of 'safehouses" where they were kept incommunicado and subjected to
physical and psychological torture and other inhuman, degrading and brutal treatment for the
purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses
perpetrated upon the plaintiffs violative of their constitutional rights.

Secondly, neither can it be said that only those shown to have participated "directly" should be held
liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as
well as indirectly, responsible for its violation.
The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It
is well established in our law and jurisprudence that a motion to dismiss on the ground that the
complaint states no cause of action must be based on what appears on the face of the
complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint,
and no others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit
the truth of the facts alleged in the complaint. 8
Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action
the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt.
Bienvenido Balaba. The complaint contained allegations against all the defendants which, if admitted
hypothetically, would be sufficient to establish a cause or causes of action against all of them under
Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to
plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of said
plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting
the respondent's motion to dismiss?
It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by
'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for
Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman;
Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel
for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty. Alexander Padilla,
counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that the motion was filed on behalf of all the
plaintiffs. And this must have been also the understanding of defendants' counsel himself for when
he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who signed
the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene
Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad,
Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.
In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on
behalf of all the plaintiff. They needed no specific authority to do that. The authority of an attorney to
appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse
party or the party concerned, which was never done in this case. Thus, it was grave abuse on the
part of respondent judge to take it upon himself to rule that the motion to set aside the order of
November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very
language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the
respondent judge took umbrage under a contrived technicality to declare that the dismissal of the

complaint had already become final with respect to some of the plaintiffs whose lawyers did not sign
the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned.
Accordingly, we grant the petition and annul and set aside the resolution of the respondent court,
dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21, 1984.
Let the case be remanded to the respondent court for further proceedings. With costs against private
respondents.
G.R. No. L-6157

July 30, 19101

W. CAMERON FORBES, J. E. HARDING, and C. R. TROWBRIDGE, plaintiffs,

vs.
CHUOCO TIACO (alias CHOA TEA) and A. S. CROSSFIELD, defendants.
W. A. Kincaid, for plaintiffs.
O'Brien and DeWitt and Hartford Beaumont, for defendant Chuoco Tiaco.
JOHNSON, J.:
An original action commenced in this court to secure a writ of prohibition against the Hon. A. S.
Crossfield, as one of the judges of the Court of First Instance of the city of Manila, to prohibit him
from taking or continuing jurisdiction in a certain case commenced and pending before him, in which
Chuoco Tiaco (alias Choa Tea) (respondent herein) is plaintiff, and W. Cameron Forbes, J. E.
Harding, and C. R. Trowbridge (petitioners herein) are defendants.
Upon the filing of the petition in this court, Mr. Justice Trent granted a preliminary injunction
restraining the said lower court from proceeding in said cause until the question could be heard and
passed upon by the Supreme court.
The questions presented by this action are so important and the result of the conclusions may be so
far reaching that we deem it advisable to make a full statement of all of the facts presented here for
consideration. These facts may be more accurately gathered from the pleadings. They are as
follows:
FACTS.
SECOND AMENDED COMPLAINT.
The plaintiffs set forth:
I. That all the parties in this case reside in the city of Manila, Philippine Islands.
II. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands
and that the plaintiff J. E. Harding and C. R. Trowbridge are, respectively, chief of police and
chief of the secret service of the city of Manila.
III. That the defendant A. S. Crossfield is one of the judges of the Court of First Instance of
the city of Manila.

IV. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality
and a subject of the Chinese Empire.
V. That on the 1st of April, 1910, the defendant Chuoco Tiaco (alias Choa Tea) filed a suit in
the Court of First Instance of the city of Manila against the plaintiffs in which substantially the
following allegations and petition were made, alleging that on the 19th of August, 1909,
under the orders of the said W. Cameron Forbes, Governor-General of the Philippine
Islands, he was deported therefrom and sent to Amoy, China, by the aforesaid J. E. Harding
and C. R. Trowbridge, chiefs, as above stated, of the police and of the secret service,
respectively, of the city of Manila, and that having been able to return to these Islands he
feared, as it was threatened, that he should be again deported by the said defendants,
concluding with a petition that a preliminary injunction should be issued against the plaintiffs
in this case prohibiting them from deporting the defendant, Chuoco Tiaco (alias Choa Tea),
and that they be sentenced to pay him P20,000 as an indemnity.
VI. It is true that the said defendant Chuoco Tiaco (alias Choa Tea), was, with eleven others
or his nationality, expelled from these Islands and returned to China by the plaintiffs J. E.
Harding and C. R. Trowbridge, under the orders of the plaintiff W. Cameron Forbes, on the
date mentioned in Paragraph V of this complaint, but the said expulsion was carried out in
the public interest of the Government and at the request of the proper representative of the
Chinese Government in these Islands, to wit, the consul-general of said country, the said W.
Cameron Forbes acting in his official capacity as such Governor-General, the act performed
by this plaintiff being one of the Government itself and which the said plaintiff immediately
reported to the Secretary of War.
VII. The said complaint having been filed with the defendant A. S. Crossfield, he, granting the
petition, issued against the plaintiffs the injunction requested, prohibiting them from deporting
the defendant Chuoco Tiaco (alias Choa Tea).
VIII. The plaintiffs having been summoned in the matter of the said complaint, filed a
demurrer against the same and presented a motion asking that the injunction be dissolved,
the grounds of the demurrer being that the facts set out in the complaint did not constitute a
motive of action, and that the latter was one in which the court lacked jurisdiction to issue
such an injunction against the plaintiffs for the reasons set out in the complaint;
notwithstanding which, the defendant A. S. Crossfield overruled the demurrer and disallowed
the motion, leaving the complaint and the injunction standing, in proof of which the plaintiffs
attach a certified copy by the clerk of the Court of First Instance of the city of Manila of all the
proceedings in said case, except the summons and notifications, marking said copy "Exhibit
A" of this complaint. (See below.)
IX. The Court of First Instance, according to the facts related in the complaint, lacks
jurisdiction in the matter, since the power to deport foreign subjects of the Chinese Empire is
a private one of the Governor-General of these Islands, and the defendant A. S. Crossfield
exceeded these authority by trying the case and issuing the injunction and refusing to allow
the demurrer and motion for the dismissal of the complaint and the dissolution of the
injunction.
Therefore the plaintiffs pray the court:
(a) That an injunction immediately issue against the defendant A. S. Crossfield ordering him
to discontinue the trial of said cause until further orders from this court;

(b) That the defendants being the summoned in accordance with law, a prohibitive order
issue against the said defendant A. S. Crossfield, restraining him from assuming jurisdiction
in said case and ordering him to dismiss the same and cease from the trial thereof;
(c) Finally, that the plaintiffs be granted such other and further relief to which they may be
entitled according to the facts, and that they may be allowed the costs of the trial.
Manila, July 9, 1910.
IGNACIO VILLAMOR,
Attorney-General.
W. A. KINCAID,
THOMAS L. HARTIGAN,
By W. A, KINCAID,
Attorneys for the plaintiffs.
UNITED STATES OF AMERICA,
Philippine Islands, city of Manila, ss:
W. A. Kincaid, being first duly sworn, states that he is one of the attorneys for the plaintiffs in
the preceding second amended complaint, and that all the facts alleged therein are true, to
the best of his knowledge and belief.
(Signed) W. A. KINCAID.
Subscribed and sworn to before me this 9th day of July, 1910. Cedula No. F. 1904, issued in
Manila on January 3, 1910.
(Signed) IGNACIO DE ICAZA,
1910.)

Notary Public. (My appointment ends Dec. 31,

We have received a copy of the above.

(Signed) O'BRIEN AND DEWITT,
HARTFORD BEAUMONT,
Attorneys for defendants.
EXHIBIT A.
[United States of America, Philippine Islands. In the Court of First Instance of the city of
Manila. No. 7740. Chuoco Tiaco (alias Choa Tea), plaintiff, vs. W. Cameron Forbes, Charles
R. Trowbridge, and J. E. Harding, defendants.]

COMPLAINT.
Comes now the plaintiff, by his undersigned attorneys, and for the cause of action alleges:
First. That the plaintiff is and has been for the last thirty-five years a resident of the city of
Manila, Philippine Islands.
Second. That the defendant W. Cameron Forbes is the Governor-General of the Philippine
islands and resides in the municipality of Baguio, Province of Benguet, Philippine Islands;
that the defendant Charles R. Trowbridge is chief of the secret service of the city of Manila,
and that the defendant J. E. Harding is chief of police of the city of Manila, and that both of
said defendants reside in the said city of Manila, Philippine Islands.
Third. That the said plaintiff is a Chinese person and is lawfully a resident of the Philippine
Islands, his right to be and remain therein having been duly established in accordance with
law by the Insular customs and immigration authorities.
Fourth. That on or about the 19th day of August, 1909, the defendants herein, Charles R.
Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the
other defendant herein, the said W. Cameron Forbes, and acting under the direction of the
said defendant, W. Charles Forbes, did unlawfully seize and carry on board the steamer
Yuensang the said plaintiff herein against his will, with the intent by said force to unlawfully
deport and expel the said plaintiff herein from the Philippine Islands against the will of the
said plaintiff herein.
Fifth. That the said defendants herein and each of them, after forcibly placing the said
plaintiff herein upon the said streamer Yuensang, as hereinbefore alleged, did cause the said
steamer Yuensang to take and carry away the plaintiff herein from the Philippine Islands to
the port of Amoy, in the Empire of China.
Sixth. That the said defendants herein, unlawfully conspiring and conniving together, the said
Charles R. Trowbridge and the said J. E. Harding, acting under the direction of the said
defendant, W. Cameron Forbes, did forcibly prevent the plaintiff herein from returning to
these Philippine Islands until the 29th day of March, 1910.
Seventh. That the defendants herein, by their unlawful acts hereinbefore alleged, have
damaged the plaintiff herein in the sum of twenty thousand pesos (P20,000) Philippine
currency.
SECOND CAUSE OF ACTION.
As a second cause of action the plaintiff alleges:
First. He repeats and reiterates each and every allegation contained in the first (1st) and
second (2nd) paragraphs of the first cause of action, and hereby makes the said paragraphs
a part of this cause of action.
Second. That the said plaintiff herein is a Chinese person who is and has been a resident of
the Philippine Islands for the last twenty-nine years, he having duly established his right to
be and remain in the Philippine Islands since the American occupation thereof in accordance
with law.

Third. That the said plaintiff herein, during his residence in these Islands, has acquired and is
actually the owner, or part owner, of property and business interests and enterprises of great
value within the Philippine Islands, and that said property and business interests and
enterprises require the personal presence of the plaintiff herein in the Philippine Islands for
the proper management and supervision and preservation thereof.
Fourth. That the plaintiff has a family in the Philippine Islands and that said family is
dependent upon the said plaintiff for support and that it is impossible for the said plaintiff to
give the said family that support unless he, the said plaintiff, is actually present within the
Philippine Islands.
Fifth. That on or about the 19th day of August, 1909, the defendants herein, Charles R.
Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the
other defendant herein, the said W. Cameron Forbes, and acting under the direction of the
said defendant, W. Cameron Forbes, did unlawfully seize and carry on board the
steamer Yuensang the said plaintiff herein with the intent by said force to unlawfully deport
and expel the said plaintiff herein from the Philippine Islands against the will of the said
plaintiff herein.
Sixth. That, notwithstanding the efforts of the said defendants herein to forcibly and
unlawfully prevent the said plaintiff herein from returning to the Philippine Islands, the said
plaintiff here in returned to the said city of Manila, Philippine Islands, on the 29th day of
March, 1910, and was duly landed by the customs and immigration authorities in accordance
with law, after having duly established his right to be and to remain herein.
Seventh. That since the arrival of the said plaintiff herein in the Philippine Islands on the 29th
day of March, 1910, as hereinbefore alleged, the said defendants herein unlawfully and
fraudulently conniving and conspiring together, the said J. E. harding and Charles R.
Trowbridge, acting under the orders and directions of the said defendant, W. Cameron
Forbes, have threatened, unlawfully, forcibly, and against the will of the plaintiff herein, to
expel and deport plaintiff herein from the Philippine Islands, and that the defendants herein,
and each and every one of them are doing all that is in their power to procure the unlawful,
forcible, and involuntary expulsion of the plaintiff herein from the Philippine Islands in
violation of the right of the said plaintiff herein to be and to remain in the Philippine Islands as
established by law.
Eight. That the plaintiff herein has no adequate remedy other than that herein prayed for.
Wherefore, the plaintiff prays that a temporary writ of injunction issue out of this court
enjoining the said defendants and each of them and their and each of their agents, servants,
employees, attorneys, successors in office, subordinate officers, and every person in any
way in privity with them, from expelling or deporting or threatening to expel or deport or
procure in any way the expulsion or deportation in any way of the plaintiff herein during the
continuance of this action.
And upon the final hearing of the cause of the said temporary writ of injunction be made
perpetual, and that the defendants and each of them be condemned to pay to the plaintiff
herein the sum of twenty thousand pesos (P20,000) damages and the costs of this action.
Manila, P. I., April 1, 1910.
(Signed) O'BRIEN AND DEWITT,

H. BEAUMONT,
Attorneys for plaintiff.
CITY OF MANILA, Philippine Islands, ss:
C. W. O'Brien, holding cedula No. 1095, dated at Manila, P. I., January 4, 1910, being duly
sworn, upon oath deposes and says that he is one of the attorneys for the plaintiff and has
read the above-entitled complaint and knows that the facts therein stated are true and
correct, except such as are stated upon information and belief, and as to those he believes
them to be true.
(Signed) C. W. O'BRIEN.
Subscribed and sworn to before me this 1st day of April, 1910, at Manila, P.I.
(Signed) J. McMICKING.
The Hon. A. S. Crossfield issued the following order:
ORDER.
To the defendants, W. Cameron Forbes, Charles R. Trowbridge, J. E. Harding, and
all their attorneys, agents, subordinates, servants, employees, successors in office,
and all persons in any way in privity with them, greeting:
The plaintiff having presented a complaint before this Court of First Instance of the city of
Manila, in the cause above entitled, against the defendants W. Cameron Forbes, Charles R.
Trowbridge, and J. E. Harding, above named, and having prayed likewise that a temporary
injunction issue against the said defendants restraining them from doing and continuing to do
certain acts mentioned in the said complaint and which are more particularly set forth
hereinafter in this order; in view of the said complaint and the verification thereof by this
attorney, and it appearing satisfactorily to me because of the facts alleged in said complaint
that the case is one in which a preliminary injunction ought to issue, and the required bond
having been executed in the sum of P2,000.
It is hereby ordered by the undersigned, judge of this Court of First Instance of the city of
Manila, that the said defendants, W. Cameron Forbes, Charles R. Trowbridge, and J. E.
Harding, and all of their attorneys, agents, subordinates, servants, employees, successors in
office, and all persons in any way in privity with them, are, each of them is, hereby restrained
and enjoined from spelling or deporting or threatening to expel or deport, or procuring in any
way the expulsion or deportation in any way of the plaintiff herein during the continuance of
this action.
Manila, P.I. , April 9, 1910.
(signed) A. S. CROSSFIELD,
Judge, Court of First Instance, city of Manila, P. I.
DEMURRER.

Comes the defendant, W. Cameron Forbes, Governor-General of the Philippine Islands, and

I. Demurs to the first count or cause of action in the complaint because the same does not
state fact sufficient to constitute a cause of action against the defendant.
II. He demurs to the second count or cause of action in the complaint because the same
does not state facts sufficient to constitute a cause of action against this defendant.
Wherefore he prays the judgment of the court upon the sufficiency of each of the pretended
causes of action set forth in the complaint.
(Signed) W. A. KINCAID,
THOMAS L. HARTIGAN.
By W. A. KINCAID,
Attorneys for defendant W. Cameron Forbes.
Comes the defendant, W. Cameron Forbes, and moves the court to dissolve the temporary
injunction issued against him in this cause, without notice to this defendant, for the following
reasons:
I. The complaint is insufficient to justify the issuance of the injunction.
II. The court is without jurisdiction to issue said injunction.
(Signed) W. A. KINCAID and THOMAS HARTIGAN,
By W. A. KINCAID,
Attorneys for defendant W. Cameron Forbes.
(Signed) IGNACIO VILLAMOR, Attorney-General.

DEMURRER.
Come the defendants, C. R. Trowbridge and J. E. Harding, and
I. Demur to the first count or cause of action in the complaint because the same does not
state facts sufficient to constitute a cause of action against these defendants.
II. They demur to the second count or cause of action in the complaint because the same
does not state facts sufficient to constitute a cause of action against these defendants.
(Signed) W. A. KINCAID,

THOMAS HARTIGAN,
By W. A. KINCAID,
Attorneys for defendants C. R. Trowbridge and J. E. Harding.
(Signed) IGNACIO VILLAMOR,

Attorney-General.

ORDER.
This case is now before the court for hearing the demurrer presented by the defendants to
plaintiff's complaint and defendants' motion to dissolve the injunction issued against the
defendants upon plaintiff's complaint.
Messrs. O'Brien and DeWitt appeared for the plaintiff; W. A. Kincaid, esq., for the defendants.
The demurrer is based upon the ground that the complaint does not state the facts sufficient
to constitute a cause of action. The motion to dissolve the injunction is grounded upon an
insufficiency of the complaint and lack of jurisdiction in the court.
Counsel for both parties made exhaustive arguments, both apparently considering the primal
issue to be whether the defendant, W. Cameron Forbes, had authority at law, as GovernorGeneral of the Philippine Islands, to deport plaintiff, as alleged in the complaint, and whether
the court had jurisdiction to restrain him from making such deportation.
No question was raised as to the sufficiency of the complaint if all question as to the
Governor-General's authority was eliminated.
A reading of the complaint discloses that the Governor-General of the Philippine Islands, as
such, is not a party to the action.
The allegations of the second paragraph of the complaint, to the effect that W. Cameron
Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is chief
of the secret service of Manila, are descriptive only, and there is no allegation in the
complaint that any of the defendants performed the acts complained of in his official capacity.
The court can not determine the authority or liability of an executive officer of the
Government until the pleadings disclose that his actions as such officer are brought in issue.
The complaint upon its faces a cause of action.
The complaint, stating a cause of action and alleging that the plaintiff is threatened with an
injury by the defendants, they may be properly restrained from committing the alleged injury
until issues raised have been tried and determined and the courts has jurisdiction to issue an
injunction.
The demurrer is, therefore, overruled. The motion to dissolve the preliminary injunction is
denied.
Manila, P. I., this 17th day of May, 1910.

(Signed) A. S. CROSSFIELD,
Judge.
Upon filing of the original complaint and after a due consideration of the facts stated therein, the
Hon. Grant Trent, acting as vacation justice, on the 24th day of May, 1910, issued the following order
or injunction:
PRELIMINARY INJUNCTION.
Whereas, from the facts alleged in the complaint filed in the above-entitled case, it is found
that the plaintiffs are entitled to the preliminary injunction prayed for by them;
Therefore, the bond of P500 mentioned in the order of the 24th of May, 1910, having been
filed, the Hon. A. s. Crossfield, judge of the Court of First Instance of the city of Manila, is
hereby notified that, until he shall have received further orders from this court, he is
prohibited from proceeding with the trial of the case filed by the defendant Chuoco
Tiaco, alias Choa Tea, in the Court of First Instance of this city, against the within plaintiffs for
indemnity as damages for the alleged deportation of the said Chuoco alias Choa Tea.
Given in Manila this 24th day of May, 1910.
(Signed) GRANT TRENT,
Associate Justice, Supreme Court, acting in vacation.
On the 2nd of June, 1910, the defendants presented the following demurrer to the original complaint:
And now come the defendants in the above-entitled cause, by their undersigned attorneys,
and hereby file their demurrer to the complaint upon the grounds that the facts alleged in the
complaint do not constitute a right of action.
Therefore the court is petitioned to dismiss the complaint, with the costs against the plaintiff.
Manila, June 2, 1910.
(Signed) O'BRIEN & DEWITT, and
for defendants.

HARTFORD BEAUMONT,

Attorneys

To the plaintiffs or their attorneys;

You are hereby notified that on Monday, the 15th inst., at nine o'clock in the morning, we
shall ask the court to hear and decide the preceding demurrer.
Manila, June 2, 1910.
(Signed) O'BRIEN & DEWITT, and
Attorney for plaintiffs.

HARTFORD BEAUMONT,

We have this day, June 2, 1910, received a copy of the above.

(Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA,
Attorneys for plaintiffs.
On the 2nd day of June, 1910, the defendants made a motion to dissolve the said injunction, which
motion was in the following language:
And now come the defendants in the above-entitled case and pray the court to dissolve the
preliminary injunction issued in the above-entitled case, on the 24th day of May, 1910, on the
grounds:
(1) That the facts alleged in the complaint are not sufficient to justify the issuance of the said
preliminary investigation;
(2) That the facts alleged in the complaint do not constitute a right of action.
Manila, P.I., June 2, 1910.
(Signed) O'BRIEN & DEWITT, and HARTFORD BEAUMONT, Attorneys for defendants.
To the plaintiffs and to their attorneys:
You are hereby notified that on Monday, the 13th inst., at nine o'clock a.m. we shall ask for a
hearing on the preceding motion.
Manila, June 2, 1910.
(Signed) O'BRIEN & DEWITT, and HARTFORD BEAUMONT, Attorneys for defendants.
We have this day received a copy of the foregoing.
(Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA,
Attorneys for plaintiffs.
Later the plaintiffs obtained permission to file the second amended complaint above quoted. By a
stipulation between the parties "the demurrer" and "motion to dissolve" were to be considered as
relating to the said second amended complaint.
By said "demurrer" and "motion to dissolve" the question is presented whether or not the facts stated
in "the second amended complaint" are sufficient upon which to issue the writ of prohibition prayed
for. If it should be determined that they are not, then, of course, the writ should be denied and the
injunction should be dissolved. If, on the other hand, it should be determined that the facts stated are
sufficient to justify the issuance of said writ, then it should be granted and the injunction should not
be dissolved, but should not be made perpetual.
From the allegations of the complaint (second amended complaint), including Exhibit A (which
constituted the pleadings in the court below), we find the following facts are admitted to be true:

First. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands;
Second. That the plaintiff J. E. Harding is the chief of police of the city of Manila;
Third. That the plaintiff C. R. Trowbridge is the chief of the secret service of the city of Manila;
Fourth. That the defendant, A. S. Crossfield, is one of the judges of the Court of First Instance of the
city of Manila;
Fifth. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality and a
subject of the Chinese Empire;
Sixth. That the plaintiff W. Cameron Forbes, acting in his official capacity as Governor-General of the
Philippine Islands, in the public interest of the Philippine Government and at the request of the
proper representative of the Imperial Government of China, to wit: the consul-general of the said
Imperial Government, did, on or about the 19th day of August, 1909, order the said defendant,
together with eleven others of Chinese nationality, to be deported from the Philippine Islands;
Seventh. That whatever the said plaintiffs J. E. Harding and C. R. Trowbridge did in connection with
said deportation was done by each of them, acting under the orders of the said Governor-General,
as the chief of police of the city of Manila and as the chief of the secret service of the city of Manila;
Eight. That later, and on the 29th day of March, 1910, the said defendant Chouco Tiaco returned to
the Philippine Islands;
Ninth. That the plaintiff W. Cameron Forbes, acting through the said chief of police and the said chief
of the secret service, was threatening to again deport the said Chuoco Tiaco from the Philippine
Islands;
Tenth. That upon the 1st day of April, 1910, the said Chuoco Tiaco commenced an action against the
plaintiff herein (the said W. Cameron Forbes, Governor-General) in the Court of said court over
which the said A. S. Crossfield was presiding as one of the judges of said court, for the purpose of
(a) Recovering a judgment against said defendants (plaintiffs herein) for P20,000 damages for said
alleged wrongful deportation; and
(b) To procure an injunction against said defendants (plaintiffs herein) to prevent them from again
deporting said plaintiff (defendant herein) from the Philippine Islands;
Eleventh. That upon the presentation or filing of the petition in the said action in the Court of First
Instance and on the 9th day of April, 1910, the said A. S. Crossfield issued a preliminary injunction
against the defendants, W. Cameron Forbes, J. E. Harding, and C. R. Trowbridge, and all their
attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any
way in privity with them, forbidding them from expelling or deporting or threatening to expel or deport
or procuring in any way the expulsion or deportation of the plaintiff (chuoco Tiaco) during the
continuance of the action;
Twelfth. Later, and on the .......... day of ........., 1910, the plaintiffs herein (defendants below) each
presented
(1) A demurrer to the causes of action described in the petition filed; and

(2) A motion to dissolve the said preliminary injunction upon the general grounds
(a) That the facts alleged were not sufficient to constitute a cause of action or for the issuance of the
injunction; and
(b) Because the court was without jurisdiction.
Thirteenth. On the 17th day of May, 1910, A. S. Crossfield, after hearing the arguments of the
respective parties, found
(1) That the fact alleged in the petition did constitute a cause of action; and
(2 That the Court of First Instance did have jurisdiction to try the questions presented.
Fourteenth. On the 24th day of May, 1910, the plaintiffs herein, through their attorney, W. A. Kincaid,
presented a petition in the Supreme Court asking that
(a) An injunction be issued against the said A. S. Crossfield, restraining him from proceeding in said
action until further orders from this court; and
(b) That the writ of prohibition be granted against the said judge, forbidding him from taking
jurisdiction of said action and to dismiss the same.
Fifteenth. On the 24th day of May, 1910, the Hon. Grant Trent, Associate Justice, acting in vacation,
issued the preliminary injunction prayed for.
On the 2nd day of June, 1910, the attorneys for the defendants (herein), Messrs. O'Brien and
DeWitt, and Hartforf Beaumont, filed:
(1) A demurrer to the petition; and
(2) A motion to dissolve said injunction, each based upon the general ground that the facts alleged in
the petition were insufficient to constitute a cause of action.
The said "demurrer" and "motion to dissolve" were brought on for hearing before the Supreme Court
on the 11th day of July, 1910, and the questions presented were argued at length by the attorneys
for the respective parties.
One of the questions which is presented by the pleadings and by the arguments presented in the
cause is whether or not the action pending in the lower court is an action against the GovernorGeneral, as such, as well as against the other defendant in their official capacity. If it should be
decided that the action is one against the defendants in their official capacity, then the question will
be presented for decision whether or not the courts have jurisdiction over the Governor-General, for
the purpose of reviewing his action in any case and with especial reference to the facts presented.
The pleadings presented in this court affirmatively allege that the action in the lower court was
against the defendants (plaintiffs herein) in their official capacity. The pleadings here also allege
positively that the acts complained of in the lower court were done by the defendants in their official
capacity; that the expulsion of the defendant (plaintiff below) was in the public interest of the
Government, at the request of the consul-general of the Imperial Government of China; that the said
plaintiffs J. E. Harding and C. R. Trowbridge acted under the orders of the plaintiff W. Cameron

Forbes; that W. Cameron Forbes acted in his official capacity as Governor-General, the act being an
act of the Government itself, which action was immediately reported to the Secretary of War.
The pleadings in the lower court simply described the defendants (plaintiffs herein) as W. Cameron
Forbes, the Governor-General; J. E. Harding, chief of police of the city of Manila, and C. R.
Trowbridge, chief of the secret service of the city of Manila. The lower court held that:
The allegations of the second paragraph of the complaint, to the effect that W. Cameron
Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is the
chief of the secret service of Manila, and that J. E. Harding is the chief of police of Manila,
are descriptive only, and there is no allegation in the complaint that any of the defendants
(plaintiffs herein) performed the acts complained of in his official capacity.
The theory of the lower court evidently was that the defendants should have been described, for
example, "W. Cameron Forbes, as Governor-General," etc. In this theory the lower court has much
authority in its support. However, this failure of correct and technical description of the parties is an
objection which the parties themselves should present, but when all the parties treat the action as
one based upon a particular theory, that theory should be accepted. Upon this question the lower
court, in his order, said:
Counsel for both parties made exhaustive arguments, both apparently considering the primal
issue to be whether the defendant, W. Cameron Forbes, had authority at law, as GovernorGeneral of the Philippine Islands, to deport plaintiff, as alleged in the complaint and whether
the court had jurisdiction to restrain him from making such deportation.
It will be noted also that the prayer of the complaint in the lower court asked for relief against "his
successors in office." The injunction also ran against "his successors in office." Thus clearly it
appears that the action was against the defendants in their official capacity.
In this court there was no pretension by the attorney for the defendant (plaintiff below) that the action
was not against the Governor-General as Governor-General, and the others as well, in their official
capacity. In fact, when an inquiry was made of the attorney for the defense concerning his theory, his
reply was simply that the acts of the Governor-General, being illegal, were not performed in his
official capacity.
The argument of the attorney for the defendant was directed to the proposition that the GovernorGeneral, in deporting or expelling the said Chinamen, did not act in accordance with that provision of
the Philippine Bill (sec. 5, Act of Congress, July 1, 1902), which provides that:
No law shall be enacted in said Islands which shall deprive any person of life, liberty, or
property, without due process of law; or deny to any person therein equal protection of the
laws.
The attorney for the plaintiffs, in answering this argument, maintained:
First. That the act of the Governor-General was the act of the Philippine Government and that he
had a right, inherent in him as the representative of the Government and acting for the Government,
to deport or expel the defendant; and

Second. In the absence of express rules and regulations for carrying such power into operation, he
(the Governor-General) had a right to use his own official judgment and discretion in the exercise of
such power.
In order to arrive at a correct solution of the questions presented by the foregoing facts, we shall
discuss the following propositions:
I.
WHAT ARE THE POWERS OF THE PHILIPPINE GOVERNMENT TO DEPORT OR EXPEL
OBJECTIONABLE ALIENS?
The Government of the United States in the Philippine Islands is a government with such delegated,
implied, inherent, and necessary military, civil, political, and police powers as are necessary to
maintain itself, subjected to such restrictions and limitations as the people of the United States,
acting through Congress and the President, may deem advisable, from time to time, to interpose.
(Instructions of the President McKinley to the Taft Commission; executive order of President
McKinley dated June 21, 1910, appointing Mr. Taft Civil Governor of the Philippine Islands; that part
of the Act of Congress of March 2, 1901, known as the Spooner Amendment; Barcelon vs. Baker, 5
Phil. Rep., 87; U. S. vs. Bull, 15 Phil. Rep., 7, 8 Off. Gaz., 271.)
The Spooner Amendment provided that
All military, civil, and judicial powers necessary to govern the Philippine Islands . . . shall,
until otherwise provided by Congress, be vested in such person and persons, and shall be
exercised in such manner, as the President of the United States shall direct, for the
establishment of civil governments and for maintaining and protecting the inhabitants of said
Islands in the free enjoyment of their liberty, property, and religion.
By this Act of Congress a system of government was established in the Philippine Islands which
carried with it the right and duty on the part of such government to perform all acts that might be
necessary or expedient for the security, safety, and welfare of the people of the Islands.
In the case of United States vs. Bull, this court, speaking through Mr. Justice Elliot, said:
Within the limits of its authority the Government of the Philippine Islands is a complete
governmental organisms, with executive, legislative, and judicial departments exercising the
functions commonly assigned to such departments. The separation of powers is as complete
as in most governments.
Having reached the conclusion that the Government of the United States in the Philippine Islands is
a government with all the necessary powers of a government, subject to certain control in the
exercise thereof, we are of the opinion and so hold, that it has impliedly or inherently itself in
conformity with the will of the Congress of the United States and the President thereof, and to this
end it may prevent the entrance into or eliminate from its borders all such aliens whose presence is
found to be detrimental or injurious to its public interest, peace, and domestic tranquility. Every
government having the dignity of a government possesses this power. Every author who has written
upon the subject of international law and who has discussed this question has reached the same
conclusion. Among these authors may be mentioned such noted men and statemen as Vattel,
Ortolan, Blackstone, Chitty, Phillimore, Puffendorf, Fiore, Martens, Lorimer, Torres, Castro, Bello,

Heffer, Marshall, Cooley, Wharton, Story, Moore, Taylor, Oppenheim, Westlake, Holland, Scott,
Haycroft, Craies, Pollock, Campbell, and others.
Not only have all noted authors upon this question of international law reached this conclusion, but
all the courts before which this particular question has been involved have also held that every
government has the inherent power to expel from its borders aliens whose presence has been found
detrimental to the public interest.
This court, speaking through its Chief Justice, in the case of In re Patterson (i Phil. Rep., 93), said:
Unquestionably every State has a fundamental right to its existence and development, and
also to the integrity of its territory and the exclusive and peaceable possession of its
dominions, which it may guard and defend by all possible means against any attack. . . . We
believe it is a doctrine generally professed by virtue of that fundamental right to which we
have referred that under no aspect of the case does this right of intercourse give rise to any
obligation on the part of the State to admit foreigners under all circumstances into its territory.
The international community, as Martens says, leaves States at liberty to fix the conditions
under which foreigners should be allowed to enter their territory. These conditions may be
more or less convenient to foreigners, but they are a legitimate manifestation of territorial
power and not contrary to law. In the same way a State may possess the right to expel from
its territory any foreigner who does not conform to the provisions of the local law. (Marten's
Treatise on International Law, vol. 1, p. 381.) Superior to the law which protest personal
liberty, and the agreements which exist for their own interests and for the benefit of their
respective subjects, is the supreme and fundamental right of each State to self-preservation
and the integrity of its dominion and its sovereignty. Therefore it is not strange that this right
should be exercised in a sovereign manner by the executive power, to which is especially
entrusted, in the very nature of things, the preservation of so essential a right, without
interference on the part of the judicial power. If it can not be denied that under normal
circumstances when foreigners are present in the country the sovereign power has the right
to take all necessary precautions to prevent such foreigners from imperiling the public safety
and to apply repressive measures in case they should abuse the hospitality extended to
them, neither can we shut our eyes to the fact that there may be danger to personal liberty
and international liberty if to the executive branch of the government there should be
conceded absolutely the power to order the expulsion of foreigners by means of summary
and discretional proceedings; nevertheless, the greater part of modern laws, notwithstanding
these objections, have sanctioned the maxim that the expulsion of foreigners is a political
measure and that the executive power may expel, without appeal, any person whose
presence tends to disturb the public peace.
The Supreme Court of the United States, speaking through Mr. Justice Field, in the case of Chao
Chan Ping vs. United States (130 U. S., 581) (A. D. 1888) said:
These laborers are not citizens of the United States; they are aliens. That the Government of
the United States, through the action of the legislative department, can exclude aliens from
its territory is a proposition which we do not think open to controversy. Jurisdiction over its
own territory to that extent is an incident of every independent nation. It is a part of its
independence, subject to the control of another power. The United States in their relation to
foreign countries and their subjects or citizens are one nation invested with powers which
belong to independent nations, the exercise of which can be invoked for the maintenance of
its absolute independence and security throughout its entire territory. . . .

. . . The power of exclusion of foreigners being an incident of sovereignty, belonging to the

Government of the United States as a part of those sovereign powers delegated by the
Constitution, the right to its exercise at nay time when, in the judgment of the Governments,
the interests of the country require it, can not be granted away or restrained on behalf of
anyone. The powers of the Government are delegated in trust to the United States and are
incapable of transfer to any other parties. They (the incidents of sovereignty),can not be
abandoned or surrendered nor can their exercise be hampered when needed for the public,
by any consideration of private interests.
In the case of Ekiu vs. United States (142 U. S., 651, 659) (A. D. 1891) the Supreme Court of the
United States, speaking through Mr. Justice Gray, said:
It is an accepted maxim of international law that every sovereign nation has the power, as
inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners
within its dominions or to admit them only in such cases and upon such conditions as it may
see fit to prescribe. In the United States this power is vested in the National Government, to
which the Constitution has committed the entire control of international relations, in peace as
well as in war. It belongs to the political department of the Government and may be
exercised either through treaties made by the President and Senate or through statutes
enacted by Congress.
Later, The Supreme Court of the United States, in the case of Fong Yue Ting vs. United States (149
U. S., 698) (A. D. 1892), speaking through Mr. Justice Gray, again said:
The right of a nation to expel or deport foreigners who have not been naturalized or taken
any steps toward becoming citizens of the country, rests upon the same grounds and is as
absolute and unqualified as the right to prohibit and prevent their entrance into the country.
The power to exclude or expel aliens being a power affecting international relations is vested in the
political department of the Government. The power to exclude aliens and the power to expel them
rest upon one foundation, are derived from one source, are supported by the same reasons, and
are, in truth, but the exercise of one and the same power.
In a very recent case The Attorney-General of Canada vs. Cain (House of Lords Reports, Appeal
Cases, 1906), Lord Atkinson, speaking for the court said (p. 545):
In 1763 Canada and all its dependencies, with the sovereignty, property, and possession,
and all other rights which had at ant time been held or acquired by the Crown of France,
were ceded to Great Britain (St. Catherine's Milling and Lumber Company vs. Reg., 145
Appeal cases, 46, 53). Upon that event the Crown of England became possessed of all
legislative and executive powers within the country so ceded to it and save so far as it has
since parted with these powers by legislation, royal proclamation, or voluntary grant, it is still
possessed of them.
One of the rights possessed by the supreme power in every State is the right to refuse to
permit an alien to enter that State, to annex what conditions it pleases to the permission to
enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if
it considers his presence in the State opposed to its peace, order, and good government, or
to its social or material interests. (Citing Vattel's Law of Nations in support of his proposition.)
In the case of Hodge vs. Reg. (9 Appeal Cases, 117) it was decided that a colonial legislature, under
the British Government, has, within the limits prescribed by the statute which created it, an authority

as plenary and as ample as the imperial parliament in the plenitude of its power possessed and
could bestow.
See also In re Adams, 1 Moore's Privy Council, 460, 472-476 (A. D. 1837); Donegani vs. Donegani,
3 Knapp, 63, 68 (A. D. 1835); Cameron vs. Kyte, 3 Knapp, 332, 343 (A. D. 1835); Mustgrave vs.
Pulido, Law Reports, 5 Appeal Cases, 102 (A. D. 1879); Nudtgrave vs. Chun Teong Toy, Law
Reports, Appeal cases, 272 (a. D. 1891); Hill vs. Bigge, 3 Moore's Privy Council, 465; The Nabob
of Carnatic vs. The East Indian Company, 1 Vese, Jr., 388;Fabrigas vs. Mostyn, 1 Cowpoer, 161.
Mr. Vattel, writing as early as 1797, in discussing the question of the right of nation or government to
prevent foreigners from entering its territory or to expel them, said:
Every nation has the right to refuse to admit a foreigner into the country when he can not enter
without putting the nation in evident danger or doing it manifest injury. What it (the nation) owes to
itself, the care of its own safety, gives to it this right; and in virtue of its national liberty, it belongs to
the nation to judge whether its circumstances will or will not justify the admission of the foreigner.
Thus, also, it has a right to send them elsewhere it if has just cause to fear that they will corrupt the
manners of the citizens; that they will create religious disturbances or occasion any other disorder
contrary to the public safety. In a word, it has a right, and is even obliged in this respect, to follow the
rules which prudence dictates." (Vattel's Law of Nations, book 1, Chapter 19, secs. 230, 231.)
Mr. Ortolan said:
The Government of each State has always the right to compel foreigners who are found
within its territory to go away, by having them taken to the frontier, not making a part of the
nation, his individual reception into the territory is a matter of pure permission and simple
tolerance and creates no obligation. The exercise of this right may be subject, doubtless, to
certain forms prescribed by the domestic laws of each country; but the right exists, none the
less, universally recognized and put in force. In France, no special form is now prescribed in
this matter; the exercise of this right of expulsion is wholly left to the executive power.
(Ortolan, Diplomatie de la Mer, book 2, chapter 14, edition, p. 297.)
Mr. Phillimore said:
It is a received maxim of international law that the government of the State may prohibit the
entrance of strangers into the country and may, therefore, regulate the conditions under
which they shall be allowed to remain in it or may require or compel their deportation from it.
(1 Phillimore's International Law, 3d edition, chapter 10, sec. 220.)
Mr. Taylor said:
Every independent State possesses the right to grant or refuse hospitality. Undoubtedly such
a State possesses the power to close the door to all foreigners who, for social, political or
economical reasons, it deems expedient to exclude; and for like reasons it may subject a
resident foreigner or a group of them to expulsion, subject, of course, to such retaliatory
measures as an abuse of the excluding or expelling power may provoke. (Tayloy,
International Public Law, p. 231.)
Mr. Oppenheim said:

Just as a State is competent to refuse admission to foreigners, so it is in conformity with its

territorial supremacy competent to expel at any moment a foreigner who has been admitted
into its territory. And it matter not whether the respective individual is only on a temporary
visit or has settled down professional or business purposes on that territory, having taken his
domicile thereon.
It has also been held that a State may expel a foreigner who has been residing within its
territory for some length of time and has established a business there, and that his only
remedy is to have his home State, by virtue of the right of protection of a State over its
citizens abroad, to make diplomatic representations to the expelling State and ask for the
reasons for such expulsion; but the right being inherent in the sovereignty or State, it can
expel or deport even domiciled foreigners without so much as giving the reasons therefor.
The expulsion of aliens from a State may be an unfriendly act to the State of the individual
expelled, but that does not constitute the expulsion an illegal act, the law nations permitting
such expulsions. (Oppenheim, International Law, sec. 323.)
Mr. Marthens said:
The Government of each State has always a right to compel foreigners who live within its
territory to go away, having them conveyed to the frontier. This right has its cause in the fact
that as a stranger does not form a part of a nation, his individual admission into the country
is merely discretional, a mere act of tolerance, in no way obligatory. The practice of this right
might be subject to certain forms prescribed by the international laws of each country, but the
right is always universally acknowledged and put into practice. (Marten's Droit des Gens,
book 3, p. 91.)
This implied or inherent right in the Government to prevent aliens from entering its territory or to
deport or expel them after entrance, has not only been recognized by the courts and eminent writers
of international law, but has also been recognized many times by the executive and legislative
branches of the Government. Acts of the Congress of the United States, of the Parliament of Great
Britain, as well as the British colonial parliaments, and royal decrees might be cited in support of this
doctrine.
One of the very early Acts of Congress of the United States (A. D. 1798) authorized the President of
the United States to order all such aliens as he should judge to be dangerous to the peace and
safety of the country, or that he should have reasonable grounds to suspect of being concerned in
any treasonable machinations against the Government, to deport out of the territory of the United
States within such time as he should express in his order. And it was further provided that if any such
aliens, so sent out, should return without the permission of the President, they should be imprisoned
so long as, in the opinion of the President, the public safety might require.
Mr. Frelinghuysen, as Secretary of State of the United States (1882), said:
This Government (United States) can not contest the right of foreign governments to
exclude, on policy or other grounds, American citizens from their shores.
Mr. Gresham, Secretary of State of the United States, in speaking of the right of Hayti to expel from
its borders American citizens from their shores.
This government does not propose to controvert the principle of international law which
authorizes every independent State to expel objectionable foreigners or class of foreigners
from its territory. The right of expulsion or exclusion of foreigners is one which the United

States, as well as many other countries, has, upon occasions, exercised when deemed
necessary in the interest of the Government or its citizens. . . .
Every State is authorized, for reasons of public order, to expel foreigners who are temporarily
residing in its territory, but when a Government expels foreigners without cause and in an
injurious manner, the State of which the foreigner is a citizen has a right to prefer a claim for
this violation of international law and to demand satisfaction, if there is occasion for it.
Many other cases might be cited showing the arbitrary manner in which aliens have, from time to
time, been deported.
Expulsion is a police measure, having for its object the purging of the State of obnoxious foreigners.
It is a preventive, not a penal process, and it can not be substituted for criminal prosecution and
punishment by judicial procedure.
The right of deportation or expulsion is generally exercised by the executive head of the
Government, sometimes with and sometimes without express legislation. Sometimes it is delegated
in particular instances to the heads of some departments of the Government. (Act No. 265, U. S.
Philippine Commission.)
In Canada the right was given by statute to the attorney-general of Canada. (Dominion Act, 60th and
61st Victoria, chap. 11, sec. 6, as amended by 1st Edward 7th, Chap. 13.)
It having been established that every government has the implied or inherent right to deport or expel
from its territory objectionable aliens, whenever it is deemed necessary for the public good, we deem
it pertinent to inquire:
II
IN WHAT DEPARTMENT OR DEPARTMENTS OF THE INDEPENDENT DEPARTMENTS
OF A GOVERNMENT DOES THIS INHERENT POWER EXISTS?
The rule of law permitting nations to deport or expel objectionable aliens, while international in its
character is yet, nevertheless, in its application, executed by the ]particular nation desiring to rid
itself of such aliens and must, therefore, be carried into operation by that departments of the
government charged with the execution of the nation's laws. Its enforcement belongs peculiarly to
the political department of the government. The right is inherent in the government and, as Mr.
Justice Field said, "can not be granted away or restrained on behalf of anyone." It being inherent in
the political department of the government, it need not be defined by express legislation, although in
some States the legislative department of the government has prescribed the condition and the
method under which and by which it shall be carried into operation. The mere absence of legislation
regulating this inherent right to deport or expel aliens is not sufficient to prevent the chief executive
head of the government, acting in his own sphere and in accordance with his official duty, to deport
or expel objectionable aliens, when he deems such] action necessary for the peace and domestic
tranquility of the nation. One of the principal duties of the chief executive of a nation is to preserve
peace and order within the territory. To do this he is possessed of certain powers. It is believed and
asserted to be sound doctrine of political law that if in a particular case he finds that there are aliens
within its territory whose continued presence is injurious to the public interest, he may, even in the
absence of express law, deport them. The legislative department of the government is not always in
session. It may require days and even months for that department to assemble. Sudden and
unexpected conditions may arise, growing out of the presence of obnoxious and untrustworthy
foreigners, which demand immediate action. Their continued presence in the country may jeopardize

even the very life of the government. To hold that, in view of the inherent power of the government,
the chief executive authority was without power to expel such foreigners, would be to hold that at
times, at least, the very existence and life of the government might be subjected to the will of
designing and obnoxious foreigners, who were entirely out of sympathy with the existing
government, and whose continued presence in the territory might be for the purpose of destroying
such government.
Suppose for example, that some of the inhabitants of the thickly populated countries situated near
the Philippine Archipelago, should suddenly decide to enter the Philippine Islands and should,
without warning appear in one of the remote harbors and at once land, for the purpose of stirring up
the inhabitants and inciting dissensions against the present Government. And suppose, for example,
that the Legislature was not in session; could it be denied that the Governor-General, under his
general political powers to protect the very existence of the Government, has the power to take such
steps as he may deem wise and necessary for the purpose of ridding the country of such obnoxious
and dangerous foreigners? To admit such a doctrine would be to admit that every government was
without the power to protect its own life, and at times might be subjected to the control of people who
were out of sympathy with the spirit of the Government and who owe no allegiance whatever to it,
and are under no obligation to assist in its perpetuity.
It has never been denied, in a government of separate and independent departments, executive,
legislative, and judicial, that the legislature may prescribe the methods or conditions for the exercise
of his power, but the mere absence of such rules neither proves that the power does not exist nor
that the executive head of the government may not adopt himself such methods as he may deem
advisable for the public good and the public safety. He can only be controlled in the conditions and
methods as to when and have the powers shall be exercised. The right itself can not be destroyed or
bartered away. When the power is once created and no rules are adopted for its enforcement, the
person or authority who has to exercise such power has the right to adopt such sane methods for
carrying the power into operation as prudence, good judgment and the exigencies of the case may
demand; and whatever rules and regulations may be adopted by the person or department
possessing this power for carrying into operation this inherent power of the government, whether
they are prescribed or not, will constitute due process of law. (See speech delivered by John
Marshall in the House of Representatives of the United States, Annals of the Sixth Congress, 595;
United States vs. Robins, Fed. Cas. No. 16,175, 27 Fed. Cas., 825; Moyer vs. Peabody, 212 U. S.,
78; Murray vs. Hoboken Land and Improvement Co., 18 How., 272; U. s., vs. Ju Toy, 198 U. S., 253,
263.)
We have said that the power to deport or expel foreigners pertains to the political department of the
government. Even in those jurisdictions where the conditions under which persons may be deported
are left to the courts to decide, even then the actual deportations must be carried into operation by
the executive department of the government. The courts have no machinery for carrying into
operation their orders except through the executive department.
In the present case the fact is charged and admitted that the defendant was deported by W.
Cameron Forbes as Governor-General of the Philippine Islands, acting for the Government. Mr.
Forbes is "the chief executive authority in all civil affairs of the Government of the Philippine Islands"
as such it is his duty to enforce the laws. It is out opinion and we so hold that as such "executive
authority" he had full power, being responsible to his superiors only, to deport the defendant by
whatever methods his conscience and good judgment might dictate. But even though we are wrong
in our conclusions that he is the possessor of the inherent right to deport aliens, and it is true that the
power belongs to the legislative department to prescribe rules and regulations for such deportation,
yet, in the present case, the legislative department expressly recognized his authority and approved
his acts by a resolution adopted by it on the 19th of April, 1910. This power of the legislature to

expressly ratify acts alleged to be illegal by the executive department, has been expressly
recognized by the Supreme court of the United States in the case of United States vs. Heinszen &
Co., (206 U. S., 370); O'Reilly de Camara vs. Brooke, Major-General (142 Fed. Rep., 859). An act
done by an agent of the Government, though in excess of his authority, being ratified and adopted
by the Government, is held to be equivalent to previous authority. (142 Federal Reporter, supra;
Phillips vs. Eyre, Law Reports, 6 Queen's Bench Cases, 1; Secretary of State vs.Kamachee Baye
Sahaba, 13 Moore's Privy Council, 22; O'Reilly de Camara vs. Brooke, Major-General, 209 U. S.,
54.)
It is also admitted that the act of the Governor-General in deporting the defendant was in compliance
with a request made by the official representative of the Imperial Government of China. It would
seem, therefore, that said request, in the absence of any other power, would be sufficient justification
of his act. The mere fact that a citizen or subject is out of the territory of his country does not relieve
him from that allegiance which he owes to his government, and his government may, under certain
conditions, properly and legally request his return. This power is expressly recognized by the
Congress of the United States. (See Act of Congress of January 30, 1799, 1 Statutes at large, 613;
sec. 5533, Revised Statutes of United States; sec. 5, United States Penal Code, adopted March 4,
1909.)
It was strenuously argued at the hearings of this cause that the defendant was deported without due
process of law, in fact, that was the burden of the argument of attorney for the defendant.
Due process of law, in any particular case, means such an exercise of the powers of the
government as the settled maxims of law permit and sanction and under such safeguards for
the protection of individual rights as those maxims prescribe for the class of cases to which
the one in questions belongs. (U. S. vs. Ling Su Fan, 10 Phil. Rep., 104, 111; Moyer vs.
Peabody, 212 U. S., 78; Murray vs. Hoboken Land and Improvement Co., 18 How., 272; U.
S. vs. Ju Toy, 198 U. S., 253, 263.)
An examination of the methods by which the defendant was deported, as stated by the attorney for
the defendant, as compared with the numerous cases of deportation by the various governments of
the world, shows that the method adopted in the present case was in accordance with the methods
adopted by governments generally and the method sanctioned by international law. (See Moore's
International Law Digest, vol. 4.)
It has been repeatedly decided when a government is dealing with the political rights of aliens that it
is not governed by that "due process of law" which governs in dealing with the civil rights of aliens.
For instance, the courts of the United States have decided that in the deportation of an alien he is
not entitled to right of trial by jury, the right of trial by jury being one of the steps in the "due process
of law" in dealing with civil rights. (Fong Yue Ting vs. U. S., 149 U. S. 698; U. S. vs. Wong Dep Ken,
57 Fed. Rep., 206; U. S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy Hoe, 53 Fed. Rep., 914.)
In the case of Moyer vs. Peabody, Governor of Colorado (212 U. S. , 78), Mr. Justice Holmes,
speaking for the court upon the question of what is "due process of law," said:
But it is familiar that what is due process of law depends on circumstances. It varies with the
subject-matter and the necessities of the situation. Thus, summary proceedings suffice for
taxes and executive decisions for exclusion from the country.
Neither will the fact that an alien residing in the territory holds a certificate of admission justify his
right to remain within such territory as against an act of the executive department of the Government
which attempts to deport him. (Chae Chan Ping vs. U. S. 581, 36 Fed. Rep., 431.) The certificate is a

mere license and may be revoked at any time. An alien's right to remain in the territory of a foreign
government is purely a political one and may be terminated at the will of such government. No cases
have been found, and it is confidently asserted that there are none, which establish a contrary
doctrine.
Having established, as we believe:
(a) That a government has the inherent right to deport aliens whenever the government believes it
necessary for the public good; and
(b) That the power belongs to the political department of the government and in the Philippine
Islands to the Governor-General, who is "the chief executive authority in all civil affairs" in the
Government of the Philippine Islands:
We deem it pertinent to inquire:
III.
WHETHER OR NOT THE COURTS CAN TAKE JURISDICTION IN ANY CASE RELATING
TO THE EXERCISE OF THIS INHERENT POWER IN THE DEPORTATION OF ALIENS,
FOR THE PURPOSE OF CONTROLLING THIS POWER VESTED IN THE POLITICAL
DEPARTMENT OF THE GOVERNMENT.
The question whether or not the courts will ever intervene or take jurisdiction in any case against the
chief executive head of the government is one which has been discussed by many eminent courts
and learned authors. They have been unable to agree. They have not been able to agree even as to
what is the weight of authority, but they all agree, when the intervention of the courts is prayed for,
for the purpose of controlling or attempting to control the chief executive head of the government in
any matter pertaining to either his political or discretionary duties, that the courts will never take
jurisdiction of such case. The jurisdiction is denied by the courts themselves on the broad ground
that the executive department of the government is separate and independent department, with its
duties and obligations, the responsibility for the compliance with which is wholly upon that
department. In the exercise of those duties the chief executive is alone accountable to his country in
his political character and to his own conscience. For the judiciary to interfere for the purpose of
questioning the manner of exercising the legal, political, inherent duties of the chief executive head
of the government would, in effect, destroy the independence of the departments of the government
and would make all the departments subject to the judicial. Such a conclusion or condition was
never contemplated by the organizers of the government. Each department should be sovereign and
supreme in the performance of his duties within its own sphere, and should be left without
interference in the full and free exercise of all such powers, rights, and duties which rightfully, under
the genius of the government belong to it. Each department should be left to interpret and apply,
without interference, the rules and regulations governing it in the performance of what may be
termed its political duties. Then for one department to assume to interpret or to apply or to attempt to
indicate how such political duties shall be performed would be an unwarranted, gross, and palpable
violation of the duties shall be performed would be an unwarranted, gross, and palpable violation of
the duties which were intended by the creation of the separate and distinct departments of the
government.
It is no answer to this conclusion to say that the chief executive authority may violate his duties and
the constitutional guaranties of the people, or that injustice may be done, or that great and
irreparable damage may be occasioned without a remedy. The judicial is not the only department of
the government which can do justice or perpetually conserve the rights of the people. The executive

department of the government is daily applying laws and deciding questions which have to do with
the most vital interest of the people. (Marbury vs. Madison, 1 Cranch, U. S., 152; State of
Miss. vs. Johnson, 4 Wall., 475, 497; Hawkins vs. The Governor, 1 Ark., 570 (33 Am. Dec., 346);
Sutherland vs. The Governor, 29 Mich., 320; People vs. Bissell, 19 Ill., 229 (68 Am. Dec., 591);
Statevs. Warmoth, 22 La. An., 1.)
In the case of State vs. Warmoth (22 La. An., 10 Mr. Justice Taliaferro said (pp. 3,4):
He [the governor] must be presumed to have this discretion, and the right of deciding what
acts his duties require him to perform; otherwise his functions would be trammeled, and the
executive branch of the government made subservient, in an important feature, to the
judiciary.
When the official acts to be performed by the executive branch of the government are
divided into ministerial and political, and courts assume the right to enforce the performance
of the former, it opens a wide margin for the exercise of judicial power. The judge may say
what acts are ministerial an what political. Circumstances may arise and conditions may exist
which would require the Governor of a State, in the proper exercise of his duty, and with
regard to the interests of the State, not to perform a ministerial act. Is the judge to determine
his duty in such case, and compel him to perform it? The reasons of the executive for the
nonperformance of an act, the judge may never know, or, if brought to his knowledge, he
may review and overrule them, and, in doing, assume political functions. He would
determine, in such a case, the policy of doing the act. The legislator himself, who prescribed
the act might hold the executive harmless while the judge condemned him.
We believe that there are certain inherent powers vested in the chief executive authority of the State
which are universally denominated political, which are not defined either by the constitution or by the
laws. We believe that those inherent powers would continue to exist for the preservation of the life
and integrity of the State and the peace and quietude of its people, even though the constitution
were destroyed and every letter of the statutes were repealed. This must necessarily be true, or,
otherwise, the hands of the chief executive authority of the government might, at times, be paralyzed
in his efforts to maintain the existence of the government. The United States Government never
intended to create in the Philippine Islands a government without giving it adequate power to
preserve itself and to protect the highest interests of the people of the Archipelago.
These inherent, inalienable, and uncontrollable powers which must necessarily exists in the absence
of express law in the chief executive authority of a nation have been clearly demonstrated by the
action of the President of the United States, notably in putting down what is known as the "Whisky
Rebellion" in the State of Pennsylvania, in the case of the protection of a judge of the United States
(In re Neagle, 135 U. S., 1, 64), as well as in the case of the uprising of labor organizations in the
city of Chicago under the direction and control of Mr. Debbs (In re Debbs, 158 U. S., 568).
These powers and the right to exercise them according to his own good judgment and the
conscience and his acts in pursuance of them are purely political and are not subject to control by
any other department of the government. It is believed that even the Legislature can not deprive him
of the right to exercise them.
Upon the question of the right of the courts to interfere with the executive, this court has already
pronounced, in the case of In re Patterson (1 Phil. Rep., 93) that:
Superior to the law which protects personal liberty and the agreements which exist between
nations for their own interests and the benefit of their respective subjects is the supreme and

fundamental right of each state to self-preservation and the integrity of its dominion and its
sovereignty. Therefore it is not strange that this right should be exercised in a sovereign
manner by the executive power to which is entrusted, in the very nature of things, the
preservation of so essential a right, without interference on the part of the judicial power.
This court has also announced the doctrine, in the case of Barcelon vs. Baker et al (5 Phil. Rep., 87)
that:
Under the form of the government established in the Philippine Islands one department of
the Government has no power or authority to interfere in the acts of another, which acts are
performed within the discretion of the other department.
In the case of Martin vs. Mott it was decided by the Supreme Court of the United States, whenever
the performance of a political duty developed upon the chief executive authority of a nation and
when he had decided as to the method of performing that duty, that no court could question his
decision. We are of the opinion and so hold, whenever the authority to decide a political question
devolves upon any separate and distinct department of the Government, which authority impose
upon that department the right to decide whether the exigencies for its exercise have arisen, and
when that department had decided, that decision is conclusive upon all other persons or
departments.
This doctrine has been further recognized by this court in the case of Merchant vs. Del Rosario (4
Phil. Rep., 316) as well as in the case of Debrunner vs. Jaramillo (12 Phil. Rep., 316).
Under the system of government established in the Philippine Islands the Governor-General is "the
chief executive authority," one of the coordinate branches of the Government, each of which, within
the sphere of its governmental powers, is independent of the others. Within these limits the
legislative branch can not control the judicial nor the judicial the legislative branch, nor either the
executive department. In the exercise of his political duties the Governor-General is, by the laws in
force in the Philippine Islands, invested with certain important governmental and political powers and
duties belonging to the executive branch of the Government, the due performance of which is
entrusted to his official honesty, judgment, and discretion. So far as these governmental or political
or discretionary powers and duties which adhere and belong to the Chief Executive, as such, are
concerned, it is universally agreed that the courts possess no power to supervise or control him in
the manner or mode of their discharge or exercise. (Hawkins vs. The Governor, supra;
People vs. The Governor, supra; Marburyvs. Madison, supra; Meecham on Public Officers, sec. 954;
In re Patterson, supra; Barcelon vs. Baker, supra.)
It may be argued, however, that the present action is one to recover damages against the Governor
and the others mentioned in the cause, for the illegal acts performed by them, and not an action for
the purpose of in any way controlling or restraining or interfering with their political or discretionary
duties. No one can be held legally responsible in damages or otherwise for doing in a legal manner
what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under
the law, to deport or expel the defendants, and the circumstances justifying the deportation and the
method of carrying it out are left to him, then he can not be held liable for damages for the exercise
of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose
of controlling or interfering with the exercise of the political powers vested in the chief executive
authority of the Government, then it must follow that the courts can not intervene for the purpose of
declaring that he is liable in damages for the exercise of this authority. Happily we are not without
authority upon this question. This precise question has come before the English courts on several
different occasions.

In the cases of The Lord-Lieutenant of Ireland (Governor of Ireland), Tandy vs. Earl of
Westmoreland (27 State Trials, 1246), and Luby vs. Lord Wodehouse (17 Iredell, Common Law
Reports, 618) the courts held that the acts complained of were political acts dine by the lordLieutenant in his official capacity and were assumed to be within the limits of the authority delegated
to him by the Crown. the courts if England held that, under the circumstances, no action would lie
against the lord-lieutenant, in Ireland or elsewhere.
In the case of Chun Teeong Toy vs. Musgrave (Law Reports, Appeal Cases 1891, p. 272) the
plaintiff, a Chinese subject, brought an action for damages against the defendant as collector of
customs of the State of Victoria in Australia, basing his action upon the refusal of the Victorian
government to permit him to enter that State. Upon a full consideration the Privy Council said:
Their Lordships can not assent to the proposition that an alien refused permission to enter
British territory can, in an action against the British Crown, compel the decision of such
matters as these, involving delicate and difficult constitutional questions affecting the
respective rights of the Crown and Parliament and the relation of this country to her selfgoverning colonies. When once it is admitted that there is no absolute and unqualified right
of action on the behalf of an alien refused permission to enter British territory, their Lordships
are of opinion that it would be impossible, upon the facts which the demurrer admits, for an
alien to maintain an action.
If it be true that the Government of the Philippine Islands is a government invested with "all the
military,. civil, and judicial powers necessary to govern the Philippine Islands until otherwise provided
by Congress" and that the Governor-General is invested with certain important political duties and
powers, in the exercise of which he may use his own discretion, and is accountable only to his
superiors in his political character and to his own conscience, and without authority to interfere in the
control of such powers, for any purpose, then it must follow that the courts can not take jurisdiction in
any case against him which has for its purpose the declaration that such acts are illegal and that he
is, in consequence, liable for damages. To allow such an action would, in the lost effective way
possible, subject the executive and political departments of the Government to the absolute control
of the judiciary. Of course, it will be observed that we are here treating only with the political and
purely executive duties in dealing with the political rights of aliens. The conclusions herein reached
should not be extended to cases where vested rights are involved. That question must be left for
future consideration.
From all the foregoing facts and authorities, we reach the following conclusions:
First. That the Government of the United States in the Philippine Islands is a government possessed
with "all the military, civil, and judicial powers necessary to govern the Philippine Islands" and as
such has the power and duty, through its political department, to deport aliens whose presence in
the territory is found to be injurious to the public good and domestic tranquility of the people.
Second. That the Governor-General, acting in his political and executive capacity, is invested with
plenary power to deport obnoxious aliens, whose continued presence in the territory is found
by him to be injurious presence to the public interest, and in the method of deporting or expelling
them, he may use such method as his official judgment and good conscience may dictate.
Third. That this power to deport or expel obnoxious aliens being invested in the political department
of the Government, the judicial department will not, in the absence of express legislative authority,
intervene for the purpose of controlling such power, nor the purpose of inquiring whether or not he is
liable in damages for the exercise thereof.

Therefore the lower court was without jurisdiction to consider the particular questions presented in
the cause, and it is hereby ordered and decreed that the writ of prohibition shall be issued, directed
to the defendant, the Hon. A. S. Crossfield, perpetually prohibiting him from proceeding in the cause
in which Chuoco Tiaco (alias Choa Tea) is plaintiff and W. Cameron Forbes, Charles R. Trowbridge,
and J.E. Harding are defendants, and to dismiss said action, as well as to enter an order dissolving
the injunction granted by him in said cause against the said defendants.
It is further ordered that a decree be entered overruling the demurrer presented in this cause, and
ordering that said action be dismissed, as well as a decree making perpetual the injunction
heretofore granted by Mr. Justice Trent.
It is so ordered, without any finding as to costs.
Arellano, C.J., and Torres, J., concur.

Separate Opinions
MORELAND, J., concurring:
The nature of this action has been fully set forth, by way of quoting the entire proceedings, in the
opinion of Mr. Justice Johnson. It is unnecessary again to present the facts. I differ, however, from
that portion of the relation of the facts in that opinion, and the conclusion drawn therefrom, which
touches the form of action commenced by Chuoco Tiaco against the Governor-General, and in
which it is asserted that "thus clearly it appears that the action was against the defendants in their
official capacity." In my judgment, the contrary, namely, that the action was against the GovernorGeneral personally for acts which he sought to perform in his official capacity, clearly appears. The
words "successors in office," as used in the complaint, refer only to the remedy by injunction and not
to the damages prayed for by reason of the expulsion. The action no less certainly is directed
against the other defendants personally.
When the case was decided in this court upon the merits, Mr. Justice Trent and myself signed the
following opinion:
I concur in so much of the opinion o f Mr. Justice Johnson, as holds that the action in the
Court of First Instance from which this controversy arises can not be maintained against the
Governor-General. With the reasons given and the arguments advanced in that opinion for
the support of that conclusion I disagree. I can not assent to the theory upon which the
opinion is framed nor to the reasons and arguments advanced in support thereof. I
understand that the action in the court below, as appears from the records of that court and
the concession of all parties interested, is one against the Governor-General personally for
acts which he assumed to perform in his official capacity. That the Governor-General acted in
the honest belief that he had the power to perform the acts complained of is nowhere
questioned. This being so, whether or not he actually had such powers is, as I view this
case, immaterial. I base my concurrence in the result solely upon the theory that the
Governor-General, in his official capacity, being one of the coordinate branches of the
Government (U. S. vs. Bull, 8 Off. Gaz., 271)1, is entitled to the same protection against
personal actions for damages by those who feel themselves aggrieved by acts which he
performs in carrying out what he honestly deems to be the duties of his office as are the
other coordinate branches of the Government. It is undoubted that neither the Legislature,

nor a member thereof is liable in damages for any act which it performs, believing that it had
the power so to act, even though it ultimately appears that such act is entirely outside of its
powers and jurisdiction and is wholly and utterly void. It is equally undoubted, in my
judgment, that neither the courts, constituting another coordinate branch of the Government,
nor members thereof, are, under similar circumstances, liable in damages.
(Bradley vs. Fisher, 80 U. S. 335; Spalding vs. Villas, 161 U. S., 481, 493, 494.) If the want of
jurisdiction was known to the court at the time it acted, another question might be presented.
There comes to my mind no good reason why the same principles of nonliability should not
be applied to the Chief Executive of the Government. Indeed the reasons and arguments of
the courts and text writers advanced to support the principle of nonliability of legislatures and
courts apply with even greater force to the Executive.
The Governor-General, in determining whether or not he has the power or jurisdiction to
perform a certain act, should be protected against personal actions against him for damages
as completely and effectively as he unquestionably is when, jurisdiction being conceded, he
honestly acts in excess thereof. There is no dissimilarity in the quality of the mental process
employed or the judgment brought to bear and exercised in arriving at a conclusion in the
two cases.
This theory does not in any way weaken the power of this court, in a proper action, to
determine the legality of all official acts once performed and the legal consequences flowing
therefrom. The necessity for such determination does not, however, arise, in this case.
To that opinion we still adhere. A thorough reexamination of the questions involved and of the
principles of law which, we believe, must be applied in their solution adds to our conviction that the
conclusions therein reached are sound and should guide the court in the disposition of the case
before it. The principles enunciated in that opinion were not, however, presented or discussed by the
attorneys, or either of them, in the extended and elaborate arguments which they made, both orally
and in writing, to this court. A motion for a rehearing having been made and the objections and
arguments of counsel having been particularly directed against the conclusions presented in our
former opinion, we deem it advisable to present here, with some elaborations and detail, the reasons
which impelled us to the conclusions reached therein.
In this opinion we discuss the subject, largely speaking, in two aspects.
First, the nature and quality of the functions exercised by the Governor-General in arriving at the
conclusion that he had the right to expel Chuoco Tiaco. Our conclusion upon this branch of the
subject is that the act was in the nature of a judicial act, the functions exercised were judicial in their
quality, and that he should have the same protection against civil liability in exercising this function
that would be accorded to a court under similar circumstances.
Second, the fundamental nature and attributes of the office of Governor-General, and whether or not
the public policy requires that there be applied to him and by his acts the same principles which
govern the liability of the members of the Legislature and of the judiciary. Our conclusion upon this
branch of the case is that the Government here is one of three departments executive, legislative,
and judicial that the office of Governor-General is one of the coordinate branches of the
Government, and that the same public policy which relieves a member of the Legislature or a
member of the judiciary from personal liability for their official acts also relieves the GovernorGeneral in like cases.

It has been settled by previous decisions of this court that the Government established in the
Philippine Islands is one of three departments legislative, executive, and judicial. In the case of
the U. S. vs. Bull2 (8 Off. Gaz., 271, 276), it is said:
Within the limits of its authority the Government of the Philippines is a complete
governmental organism with executive, legislative, and judicial departments exercising the
functions commonly assigned to such departments. The separation of powers is as complete
as in most governments. In neither Federal nor State governments is this separation such as
is implied in the abstract statement of the doctrine. For instance, in the Federal Government
the Senate exercises executive powers, and the President to some extent controls legislation
through the veto power. In a State the governor is not a member of the legislative body, but
the veto power enable him to exercise much control over legislation. The Governor-General,
the head of the executive department in the Philippine Government, is a member of the
Philippine Commission, but as executive he has no veto power. The President and Congress
framed the Government on the models with which Americans are familiar, and which has
proved best adapted for the advancement of the public interest and the protection of
individual rights and privileges. (Lope Severino vs. The Governor-General and Provincial
Board of Occidental Negros, 8 Off. Gaz., 1171.)3
The instructions of the President of the United States to the Philippine Commission, dated April 7,
1900, contain this statement:
Until the complete transfer of control (from the military to the civil authorities) the Military
Governor will remain the chief executive head of the Government of the Islands, and will
exercise the executive authority now possessed by him and not herein expressly assigned to
the Commission, subject, however, to the rules and orders enacted by the Commission in the
exercise of the legislative powers conferred upon them.
Said instructions also include the following:
Beginning with the 1st day of September, 1990, the authority to exercise, subject to my
approval, through the Secretary of War, that part of the power of government in the
Philippine Islands which is of a legislative nature is to be transferred from the Military
Governor of the Islands to this Commission, to be thereafter exercised by them in the place
and stead of the Military Governor, under such rules and regulations as you shall prescribe,
until the establishment of the civil central government for the Islands contemplated in the last
foregoing paragraph, or until Congress shall otherwise provide. Exercise of this legislative
authority will include the making of rules and orders, having the effect of law, for the raising
of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of
public funds of the Islands; the establishment of an educational system throughout the
Islands; the establishment of a system to secure an efficient civil service; the organization
and establishment of courts; the organization and establishment of municipal and
departmental governments, and all other matter of a civil nature for which the Military
Governor is now competent to provide by rules or orders of a legislative character.
The powers conferred upon the Military Governor are contained in the following order of the
President to General Merritt, dated May 19, 1998:
Though the powers of military occupant are absolute and supreme, and immediately operate
upon the political condition of the inhabitants, the municipal laws of the conquered territory,
such as effect private rights of person and property, and provide for the punishment of crime,
are considered as continuing in force, so force, so far as they are compatible with the new

order of things, until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force, and to be
administered by the ordinary tribunals, substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present occasion.
The Spooner amendment to the Army appropriation bill, passed March 2, 1901, provided that
All military, civil, and judicial powers necessary to govern the Philippine Islands . . . shall until
otherwise provided by Congress be vested in such person and the persons, and shall be
exercised in such manner, as the president of the United States shall direct, for the
establishment of civil government, and for maintaining and protecting the inhabitants of said
Islands in the in the free enjoyment of their liberty, property, and religion.
On the 21st day of June, 1901, the President, in an order appointing a Civil Governor, said:
On and after the 4th day if July, 1901, until it shall be otherwise ordered, the President of the
Philippine Commission will exercise the executive authority in all civil affairs in the
government of the Philippine Islands heretofore exercised in such affairs by the Military
Governor of the Philippines, and to that end the Hon. William H. Taft, President of the said
Commission, is hereby appointed Civil Governor of the Philippine Islands. Such executive
authority will be exercised under, and in conformity to, the instructions to the Philippine
Commissioners, dated April 7, 1900, and subject to the approval and control of the Secretary
of War of the United States. The municipal and provincial civil governments, which have
been, or shall hereafter be, established in said Islands, and all persons performing duties
appertaining to the offices of civil government in said Islands, will, in respect of such duties,
report to the said Civil Governor.
The power to appoint civil officers, heretofore vested in the Philippine Commission, or in the
Military Governor, will be exercised by the Civil Governor with the advice and consent of the
Commission.
The Military Governor of the Philippines is hereby relieved from the performance, on and
after the said 4th day of July, of the civil duties hereinbefore described, but his authority will
continue to be exercised as heretofore in those districts in which insurrection against the
authority of the United States continues to exist, or in which public order is not sufficiently
restored to enable provincial civil governments to be established under the instructions to the
Commission dated April 7, 1900.
On the 1st day of July, 1902, Congress passed an Act containing the following:
That the action of the President of the United States in creating the Philippine Commission
and authorizing said Commission to exercise the powers of government to the extent and in
manner and form and subject to the regulations and control set forth, in the instructions of
the President to the Philippine Commission, dated April seventh, nineteen hundred, and in
creating the offices of Governor-General and Vice-Governor-General of the Philippine
Islands, and authorizing said Governor-General and Vice-Governor-General to exercise the
powers of government to the extent and in manner and form set forth in the Executive Order
dated June twenty-first, nineteen hundred and one, . . . is hereby approved, ratified, and
confirmed, and until otherwise provided by law the said Islands shall continue to be governed
as thereby and herein provided.

From these citations it will be seen that the Governor-General is the executive head of the
Government; that he has full, plenary, and perfect powers to execute the laws. Obviously, therefore,
the primal necessity laid upon him, when in a given case, he believes himself called upon to act, is to
determine whether there is a law under which he may act whether, in other words, he
is authorized to act in that particular case. One occupying that high position owes a heavy obligation
to the State. A careful and conscientious man, intensely anxious to meet the full requirements of this
obligation, will inevitably dedicate his first consideration to the determination of what that obligation
is. From the viewpoint of the governors of the American States, this is not, generally speaking, a
difficult question. There conditions are settled. Society is old. Questions wholly new rarely arise. The
constitutions confer the powers generally. The statutes specify them. The source power is the
constitution. The guide is the statutes. Both are written. They constitute the governor's text-book of
power and procedure specific, definite, certain. In the Philippine Islands the situation is different.
Here, while the sources of the Governor-General's power are known, the extent and character of the
power drawn from those sources are not so clear. Many times they are extremely difficult of
ascertainment. The Government here is a new one .Its establishment is a step in ways heretofore
untrodden by the American Republic. Its history furnished no example, its law no precedent. Her
statemanships had, up to the moment, framed no model from which a colony government might be
fashioned; the philosophy of her institutions presents no theories along which action may
unhesitatingly proceed. There is no experience to guide the feet; no settled principles of colonial
government and administration to which men may turn to justify their action or dissipate their doubts.
Therefore, when, seeing, as he believed, certain Chinese aliens outraging the public conscience and
seriously threatening public security, the Governor-General, believing that the only procedure
adequate to protect the public interests was the expulsion of the offenders, began an investigation to
determine whether or not he had the power of expulsion, he was confronted with a question of very
serious intricacy and doubt. It was of the very greatest importance also. It is undoubted that he was
thoroughly convinced that he was required, by the obligation of his office, to act if the law authorized
it. He knew the strength and the justice of the proposition that a public official may not sit supinely by
and see outraged the very things that he is bound by his oath to protect without exhausting every
atom of his power and every resource of his office in an attempt to meet the situation as it ought to
be met. His primal duty, under such circumstances, would be to determine what were his powers.
The situation would imperatively demand that he ascertain what he could do. This involves, as
already said, a determination upon which even a court, learned in the law and experienced in its
constructions, would enter with hesitation and misgivings. The question to be resolved is so many
sided, its relations so intricate and numerous, the result of its determination so far-reaching,
politically as well as legally, as to require the most careful consideration, the must exhaustive
forethought. It involves not only the discussion and resolution of judicial as well as administrative
questions of the most highly important kind, but also whether this Government has any power of
expulsion whatever.
He has, then, as his initiatory resolution, to determine whether the Government of the Philippine
Islands has the power of expulsion at all. As a condition precedent to the decision of that question he
must adjudge (a) whether the Government here is in any sense a sovereign government; for the
power to expel a domiciled foreigner is distinctively an attribute of sovereignty, to be exercised,
under the uniform practice of the Government of the United States, only in exceptional cases and
then under recognized methods of procedure. If he resolve that question in the negative, he must
then decide (b) whether the Government of the United States has conferred upon the Government
here those powers of sovereignty necessary to authorize such act.
It is needless to say that the very gravest questions are involved in these determinations. I do not
stop to enumerate them or to present the serious difficulties which must be met in making them. It
suffices to say that, when he has fully resolved those questions, he is then only on the threshold of
his inquiry. Inasmuch as it might appear to one investigating the subject for the first time that the
power of expulsion might be an inherent attribute of the Executive, as in some countries it is alleged

to be, he must determine, first the fundamental nature of his executive powers. He must decide
whether, under the form of the government of which his office is the executive part, the power of
expulsion belongs to the executive exclusively, or solely to the legislative, or whether it belongs to
both, in combination with the judicial. This requires that he distinguish his executive functions from
those which are legislative, upon the one hand, and those which are judicial, upon the other a
determination most difficult in many instances, not only by reason of the considerations above set
forth, not only by reason that, while the broad distinction is clear, nevertheless, frequently, the nature
of one verges so closely upon that of the other as to render the difference between them subtle,
uncertain, and elusive.
He must, second, judge whether that power, whatever it is and whatever its extent, came
untrammeled to the Military Governor from the hands of the President, or whether he received it
modified and restricted. This determination is necessary for the reason already pointed out that the
Governor-General has only such executive power as had the Military Governor. This involves an
interpretation of the order of the President above quoted a very real judicial construction of its
legal signification.
He must decide, third, whether the acts or orders by which executive power was given to the Military
Governor and those by which that power was transferred to him do or do not, by their terms, define
that power itself, its character and extent, or specify with more or less certainty the acts which he
may perform under it. This again brings into play functions which approach the judicial so closely as
to render them practically indistinguishable.
After all these investigations, interpretations, and constructions have been completed, there still
remains to the Governor-General for solution one of the most difficult problems of all, that of
determining whether or not, irrespective of the foregoing considerations, there exists in force and
vigor, under the American regime, a law of Spanish origin with which he may adequately meet the
situation that faces him. As we have already seen, the instructions of the President of the United
States to General Merritt, dated May 19, 1898, provide that
The municipal laws of the conquered territory, such as affect, private rights of person and
property, and provide for the punishment of crime, are considered as continuing in force, so
far as they are compatible with the new order of things, until they are suspended or
supercede by the occupying belligerent; and in practice they are not usually abrogated, but
are allowed to remain in force, . . . .
We have also seen that the proclamation of General Merritt on the capitulation of the Spanish forces
in Manila also provides that
The municipal laws such as affect private rights of persons and property, regulate local
institutions, and provide for the punishment of crime shall be considered as continuing in
force, as compatible with the purposes of military government, and that they be administered
through the ordinary tribunals substantially as before occupation, but by officials appointed
by the government of occupation.
It is evident that the character and contents of these two instruments necessitate that the
Governor-General consider and decide when the laws and institutions of the United States
are so incompatible with those Spain in the Philippine Islands as to render the latter
inoperative. This involves the consideration of the broad question of when the laws, customs,
and institutions of a conquering nation are so incompatible with those of the conquered as to
render them inoperative and ineffective by the mere change of sovereignty. This is a theme
upon which writers have differed and concerning which the courts have not been free from

uncertainties and even contradictions. The field opened by this necessity is so wide, the
subject-matter so uncertain and elusive, and the principles involved so dependent for their
application upon the personal equation of the one dealing with the subject that it is extremely
easy for two men, equally honest and able, to differ widely on a result. Much depends upon
the atmosphere in which one is placed and the point of view from which the subject is seen.
The Supreme court of the United States has just held unconstitutional and void the law
relating to the falsification of an official document by a public official, a law of Spanish origin,
which had generally been supposed, and had repeatedly been held by the Supreme Court of
the Islands, to have survived the change of sovereignty. The great body of our laws is of
Spanish origin and comes to us and is enforced by us upon the theory that it has survived.
As a result, this court is continually called upon to adjudicate the question whether a given
Spanish law is still in existence. Parties are unceasingly asserting rights of property and of
person based upon such laws. These assertions are as frequently denied. It is subject over
which uncertainty continually holds sway. It was a question, however, which had to be met
and solved by the Governor-General. It could not be avoided. It confronted him squarely and
insistently, because a condition and not a theory was thrust in his face. It appears that, prior
to the conquest and occupation of the Islands by the Americans, there was in force here a
royal decree giving the Spanish Governor-General power, when certain conditions conjoined,
to expel domiciled foreigners. That decree reads:
OFFICE OF THE COLONIAL SECRETARY.
No. 607.
EXCELLENCY: In view of the proceedings relative to the consultation had by the Audiencia
de Manila with the government, through the supreme court, the latter having rendered a
report on the subject-matter thereof, which refers to deportations, the case was forwarded for
report to the political division of this office, and His majesty the King (whom may God
preserve), and in his name the Queen Regent, passing upon the report, has been pleased to
decide that:
1. According to the laws 18, 19 and 20, title 8, book 7; 35, title 15, book 2, title 4, book 3; 61,
title 3, book 3, the royal cedula of May 19, 1819, and the special royal order of April 20,
1881, Governor-General of the Philippine have power to determine the legal expediency of
the deportations which they may deem necessary for the preservation of public order.
2. The record in any such cause commenced by the Governor-General must be transmitted
to the supreme government of the nation, in the form and manner provided by the Laws of
the Indies, in order that it may take cognizance of the reasons which he may have for
ordering the deportation.
3. The kind and form of justification which should appear in the record is left to the
reasonable discretion of the Governor-General.
4. The Governor-General may deport any person who, had he been prosecuted in the courts
of justice under a criminal charge, would have been pardoned, as expressed in law 2, title 8,
book 7, of the Recompilacion of the Laws of the Indies.
5. With respect to such persons as we tried and acquitted by the courts of justice, if the
charges, the reason for the deportation, were the subject-matter of the prosecution, then,
bearing in mind the sanctity of a matter which has become res adjudicata, deportation by the
Governor-General is improper.

6. These deportations must be decreed by the Governor-General in person, and not by

his tenientes andauxiliares (lieutenants and assistants), in accordance with law 19, title 8,
book 7, of the Recompilation of the Indies.
7. The laws in force in the Philippines relative to deportations are those of the Indies before
mentioned, so that the lack of a faithful and exact compliance with requisites prescribed
therein for the exercise of such power constitutes the crime defined in articles 211 and 212 of
the Penal Code in force in the Philippines.
8. The right to appeal to the audiencias, granted by royal order of May 25, 1847, from the
action taken by the Governor-General, was abolished by the decree of November 28 of the
same year, which provided in article 7 that orders issued by the Governor-General in matters
pertaining to government or to the exercise of his discretional powers. can only be revoked
by the Supreme Government.
The foregoing by this royal order is communicated to you for your information and the
consequent effects. May God preserve Your Excellency many years, Madrid, August 2,
1888. (Signed) Ruiz y Capdepon.
To the Governor-General of the Philippine Islands:
Comply with and observe the above royal order and issue to the provincial chiefs the
necessary orders thereunto pertaining. (Signed) Weyler.
The question was thus squarely up. Did that law survive the American occupation? An answer must
be given by the Governor-General, if he believed his duty to the State required him to act if he had
the power. Once more he must interpret, construe, and determine; and in doing so he must tread
legal mazes as intricate and bewildering as ever were trodden by a judge at court.
Having so far considered the processes which the mind of the Governor-General must pass through
and the determinations which he must make in arriving at a conclusion as to whether he may or may
not act in the case given, it is now necessary to inquire what is the nature of those processes and
determinations. Evidently they involve the element of discretion of judgment as a result of
investigations a conclusion as to the existence of a law, an authority, a power, which lies at the
very doorway of his activities. His judgment operates in a field over which he has general and
exclusive jurisdiction and embraces a subject concerning which he must judge alone. It includes also
a determination as to the character, quality, and extent of the person against or in reference to whom
that power is to operate. Every act of enforcement of whatever law, real or imaginary, must
necessarily an inevitably be preceded by two determination. First, is there a law at all; and, second,
if there is, what is meaning of it; what is its interpretation? These determinations must always be
made. They were laid upon the Governor-General by the very nature of his functions an executor
of law. It is evident, therefore, in view of these considerations, that such functions involve much that
is judicial. The executive and judicial functions here merge and overlap each other to a conspicuous
extent; and it becomes at once apparent that the functions exercised by the Governor-General in
reaching a conclusion to act in given case, and especially in the case before us, were, in their
nature, essentially judicial. If a judge had done the things which the Governor-General did in arriving
at this conclusion, his act and determination would unquestionably have been judicial. Are they any
the less so, in their essential nature, because a Governor-General and not a judge was the ]actor?
The methods pursued by the two, Governor-General and judge, are not all different. The subjectmatter is precisely the same. The mental processes involved are identical. The discretion used is the
same. The objects in view are wholly similar the application of a public law to personal
misconduct; the protection of the public against the malicious activities of a corrupt individual.

It now becomes necessary to determine what would be the civil responsibility of a judge acting upon
the same questions and making the same determinations involved in the activities of the GovernorGeneral complained of in this suit. The reason for this necessity is found in the analogy which I
suppose to assert between the civil liability of a judge performing judicial functions and of the
Governor-General exercising essentially the same attributes. The result of that analogy is that if a
judge, performing the acts complained of, would not be civilly liable, then the Governor-General is
not.
I, therefore, proceed to discuss the civil liability of judges. I deal with it in three aspects: First, where
the judge acts within the limits of his jurisdiction, and, second, where he acts in wholly without
jurisdiction, and third, where he acts in "excess of jurisdiction." This discussion of the subject in such
threefold aspect is rendered necessary by reason of the claim made in this case that the GovernorGeneral, in whatever he did or brought about in the expulsion of the complainant and his
companions, was wholly without authority, power, or jurisdiction and for that reason he is civilly
responsible for whatever damages such illegal acts may have caused.
My position in the discussion of the question is that a judge may, in reality, act wholly without power,
authority, or jurisdiction and still not be civilly liable; that jurisdiction ought not to be, and can not be,
a vital a controlling element in determining his liability; and that, if the question resolved by the
judge be one whose determination required the exercise of the judicial functions, he is not civilly
liable for damages caused by an act performed in pursuance of such determination even though he
acts wholly without jurisdiction. I further contend that the doctrine making jurisdiction the test of
liability is illogical and unsound, and that the doctrine of excess of jurisdiction, carried to its logical
conclusion, is a complete refutation of the original theory.
It is a universal statement of text writers that "no person is liable civilly for what he may do as judge
while acting within the limits of his jurisdiction." This is also a settled principle of law as applied by
the courts. This doctrine is so thoroughly established that no authority need be cited to sustain it. It is
also universally asserted by the text writers, and maintained by many courts, that jurisdiction is the
sole and exclusive test of judicial liability, and it is affirmed that a judge is always civilly liable if he act
without jurisdiction. Mr. Cooley in his work on Torts (2nd ed., p. 486) says:
Every judicial officer, whether the grade be high or low, must take care, before acting, to
inform himself whether the circumstances justify his exercise of the judicial function. A judge
is not such at all times and for all purposes; when he acts he must be clothed with
jurisdiction; and acting without this, he is but the individual falsely assuming an authority he
does no possess. The officer is judge in the cases in which the law has empowered him to
act, and in respect to persons lawfully brought before him; but he is not judge when he
assumes to decide cases of a class which the law withholds from his cognizance, or cases
between persons who are not, either actually or constructively, before him for the purpose.
Neither is he exercising the judicial function when, being empowered to enter one judgment
or make one order, he enters or makes one wholly different in nature. When he enters or
makes one wholly different in nature. When he does this he steps over the boundary of his
judicial authority, and is as much out of the protection of the law in respect to the particular
act as if he held no office at all. This is a general rule.
This same rule, it is alleged, is laid down by many authorities, among them being: Marshalsea case
(10 Coke, 68b; 2 Adol. and E (N. S.) 978); Piper vs. Pearson (2 Gray, 120); Van Ky., 27);
Bradley vs. Fisher (13 Wall., 335); McCall vs. Cohen (16 S. C., 445); Bigelow vs. Stearns (19 Johns.,
39); Vosburg vs. Welch (11 Johns., 175); Terryvs. Wright (9 Colo. App., 11); Lange vs. Benedict (73
N. Y., 12); Austin vs. Vrooman (128 N. Y., 229).

When, however, it became necessary to put this rule into practical operation, to apply it to a
particular matter, it was found that it did not meet the necessities of the case. Its application did not
work justice. It was found imperfect and inadequate. It was seen to be lame and halt. It condemned
in one cases and relieved in another when there existed no real distinction between them, either in
logic or justice. While this was not admitted, perhaps, in words by the courts, it was, nevertheless,
seen and felt. Accordingly, laboring under the pressure of these conditions and to avoid the
anomalous results flowing from a rigid application of the theory, they announced the doctrine of
"excess of jurisdiction."
This doctrine holds "that judges of superior and general jurisdiction are not liable to civil actions for
their judicial acts when such acts are in excess of their jurisdiction." (Ross vs. Griffin, 53 Mich., 5 ;
Grove vs. Van Duyn, 44 N. J. L., 654; Randall vs. Brigham, 7 Wall., 523; Jones vs. Brown, 54 Ia., 74;
Lange vs. Benedict, 73 N. Y., 12: Yatesvs. Lansing, 5 Johns., 282; Robertson vs. Parker, 99 Wis.,
652; Willcox vs. Williams, 61 Miss., 310; Calhoun vs.Little, 106 Ga., 336; Miller vs. Seare, 2 W. Bil.,
1141; Ackerly vs. Parkinson, 3 M. and S., 411; Austin vs. Vrooman, 128 N. Y., 229; root vs. Rose, 6
N. D., 575; Webb vs. Fisher, 109 Tenn., 701; U. S. vs. Bell., 135 Fed., 336; English vs. Ralston, 112
Fed., 272; 85 Fed., 139 Bradley vs. Fisher, 13 Wall., 335.)
As before stated, the courts, in laying down the doctrine that a judge is exempt from civil liability if he
acts within his jurisdiction, also assert at the same time that he is liable if he act without jurisdiction.
In the same way, strange to say, the courts who lay down the doctrine that a judge is not liable civilly
even if he act in excess of jurisdiction, also assert that he is liable if he act without jurisdiction. In
other words, whether it be a court which asserts the doctrine of nonliability with jurisdiction or
whether it be one who asserts the doctrine of nonliability with excess of jurisdiction, they all concur in
asserting liability in case the court acts with lack of jurisdiction. T o put it in a different way: The
decisions make no distinction between cases where the court acts with jurisdiction and those where
he acts in excess of jurisdiction; but they do make a crucial distinction between those cases where
he acts in excess of jurisdiction and those in which there is a lack or want of jurisdiction. It is
accordingly evident, under this judicial conception, that, so far as the civil liability of the judge is
concerned, acting completely with jurisdictionand acting completely in excess of jurisdiction mean
exactly the same thing; while acting completely in excess of jurisdiction and acting completely
without jurisdiction mean exactly opposite things. This inference is the inevitable one because the
judge is entirely exempt if he act within his jurisdiction, and he is wholly immune if he act inexcess of
jurisdiction; but if he act without jurisdiction, he is fully liable.
I confess my inability to see how two conditions so different in their nature and characteristics as
acting with jurisdiction and acting in excess of jurisdiction can be held to produce the same result
having in mind always the proposition universally asserted by the courts to be the basis of that
difference in liability, that the nature of the judge's act, i.e., whether it makes him civilly liable or not,
depends entirely on jurisdiction. That the jurisdiction and excess of jurisdiction are conceptions are
wholly different is perfectly evident from the standpoint of language alone. That their legal nature is
entirely different will appear when we discuss want of jurisdiction and compare it with excess of
jurisdiction.
If "excess of jurisdiction" means anything different from "want of jurisdiction," under the doctrine of
excess of jurisdiction as it is asserted, it lies not at all in the essential nature of those conditions but,
rather, in the accidental circumstance stated in the decisions, that the court, having once acquired
jurisdiction of the subject-matter and the parties, any act of his during the proceedings which is
beyond or outside of real powers is in "excess of jurisdiction merely, and has a different quality from
that which the same act would have if there had been no jurisdiction in the first instance. In other
words, jurisdiction having once been present in the cause, it continues to shed its beneficent
influence over the court and his acts, no matter where he goes or what he does. This is the

distinctive feature of the doctrine of excess of jurisdiction as that doctrine is laid down. Jurisdiction
once present is, under that doctrine, the touchstone of nonliability. As a necessary consequence, the
court who lacks this protective genius of jurisdiction may lose his fortune and perhaps his liberty,
although he may perform exactly the same acts as he who is wholly excused because
he exceeds his jurisdiction. It becomes necessary to inquire, therefore, in what way of excess of
jurisdiction differs essentially from lack of jurisdiction, for, if they produce results so violently in
opposition, there must be a wide and essential difference between them a difference wholly unlike
that set forth in the decisions.
And first, as to excess of jurisdiction:
To exceed jurisdiction is to go outside of it; to pass beyond its limits. To exceed is "to go beyond; to
go too far; to pass the proper bounds or measure." "Forty stripes he may give him and not exceed."
Excess is "the state of going beyond limits." Excess of jurisdiction is the state of being beyond,
i.e., outside the limits, of jurisdiction.
This is the only definition of excess of jurisdiction which the term will permit. This is precisely the
definition given in the very decisions which lay down the doctrine, One of the first cases of in the
United States to present the doctrine of excess of jurisdiction was that of Lange vs. Benedict (73 N.
Y., 12). In that case it appeared that the defendant presided as judge at a regular session of the
United States Circuit Court, before which plaintiff was tried and convicted of a statutory offense
punishable by a fine or imprisonment. He was sentenced by the defendant to pay a fine and to be
imprisoned. Plaintiff paid the amount of the fine to the clerk of the court, who paid it into the United
States Treasury. The plaintiff was also imprisoned. A writ of habeas corpus was granted by and
returned into said court during the same term, and, on such return, defendant, holding the court and
as judge thereof, vacated and set aside the sentence, and resentenced the plaintiff to be imprisoned
for the term one year. Under this sentence the plaintiff was imprisoned. Such proceedings were
subsequently had that the Supreme Court of the United States (Ex parte Lange, 18 Wall., 163, 176)
adjudged the resentence to have been without authority and void. In deciding the case on the
proceedings mentioned the Supreme Court of the United States said (Ex parte Lange, supra):
We are of the of the opinion that when the prisoner, as in this case, by reason of a valid
judgment, had fully suffered one of the alternative punishments to which alone the law
subjected him, the power of the court to punish father was gone. That the principle we have
discussed then interposed its shield, and forbid that he should be punished again for that
offense. The record of the court's proceedings, at the moment the second sentence was
rendered, showed that in that very case, and for that very offense, the prisoner had fully
performed, completed, and endured one of the alternative punishments which the law
prescribed for that offense, and had suffered five days' imprisonment on account of the other.
It thus showed the court that its power to punish for that offense was at an end. Unless the
whole doctrine if our system of jurisprudence, both of the Constitution and the common law,
for the protection of personal rights in that regard, are a nullity, the authority of the court to
punish the prisoner was gone. The power was exhausted; its further exercise was prohibited.
It was error, but it was error because the power to render any further judgment did not exist.
Commenting on this same case the Supreme Court of the United States in the case of Ex
parte parks (93 U. S., 23) said:
But after the thorough investigation which has been given to this subject in previous cases,
particularly those of Ex parte Yager (8 Wall., 85( and Ex parte Lange (187 id., 163), it is
unnecessary to pursue the subject further at this time. The last-mentioned case is confidently
relied on as a precedent for allowing the writ in this case. But the two are totally unlike. In Ex

parte Lange we proceeded on the ground that, when the court rendered it second judgment,
the case was entirely out of his hands. It was functus officio in regard to it. The judgment first
rendered had been executed and satisfied. The subsequent proceedings were, therefore,
according to our view, void.
In spite, however, of the fact that the act of the Supreme Court of the United States had held that the
act of the court in resentencing plaintiff was absolutely without jurisdiction and void, nevertheless,
the court of appeals of the State of New York, deciding the action against the judge for damages
(Lange vs. Benedict, supra) after the rendition of the judgment of the Supreme Court of the United
States on the question of the resentence, said, in giving a definition of the phrase "excess of
jurisdiction:" "The act of the defendant was then one in excess of or beyond the jurisdiction of the
court." "He had jurisdiction of the cause originally. That jurisdiction had ceased. His further acts were
beyond or in excess of his jurisdiction." "If it be admitted that at the instant of the utterance of that
order, jurisdiction ceased, as is claimed by the plaintiff, on the strength of the opinion in Ex
parte Lange (supra), as commented upon in Ex parte Parks (93 U. S., 18), and that all subsequent to
that was coram non judice, and void; still it was so, not that the court never had jurisdiction, but that
the last act was in excess of jurisdiction.
If the intention of the New York in that case was to use the phrase "excess of jurisdiction" in the
sense that there was an essential and vital distinction between it and "want of jurisdiction," a
distinction so essential and vital as to warrant liability in the one case and nonliability in the other, I
am in entire disagreement with its conclusion. If I were unsupported in my disagreement, I should
hesitate long and doubt much before I differed with authority so eminent. But the Supreme Court of
the United States, as shown by the quotation given, has held in that very casethat the district court,
in resentencing Lange, acted with complete and utter absence of jurisdiction. I am in perfect accord
with the use of the phrase "excess of jurisdiction" when it describes a particular legal condition
which, in some of its colorings, some of its accidental or incidental features, is somewhat different
from the legal condition "absence of jurisdiction." But I am not in accord with its use if it is meant to
describe something which is essentially different in quality, that is, a different thing, from excess of
jurisdiction. If the difference meant to be shown is, in its nature, the same difference which is
indicated between two horses when it is said that one is black and the other bay, I agree. But if it is
meant thereby to indicate that one is a horse and the other a cow, I disagree. The two legal
conditions are essentially and really identical. Their coloring may be different but they are the same
animal. The question before us is not whether there is such a difference in markings that the two
conditions ought to be given different names as a matter of convenience, but, rather, is there a
difference so important, so essential, so vital that we may established upon that difference as an
eternal foundations a just principle of law which wholly saves in the one case and utterly destroys in
the other. The real and practical question for us "What does that difference amount to? What results
may it justly produce to the parties and to the court? What results must itnecessarily produce.
In the case of Clarke vs. May (2 Gray, 410) a justice of the peace, having jurisdiction of the cause,
summoned a person to appear before him as a witness therein. The person disobeyed. The case
was tried and ended. Thereafter, the justice issued process to punish for contempt the person who
had disobeyed his subpoena. He was arrested, fined, and not paying, was committed. It was held
and jurisdiction of magistrates in such cases was only incidental and auxiliary to the trial of the cause
in which the witnesses were summoned; and could not be legally exercised, except during the
pendency of such cause; that after its final disposition by a judgment, the authority to punish such
contempt ceased, and that Clarke was therefore illegally committed. . . . Although he had jurisdiction
of the subject-matter, he was empowered by law to exercise it only in a particular mode, and under
certain limitations. having disregarded these limitations, and exercised his authority in a manner not
sanctioned by law, he has been guilty of an excess of jurisdiction, which renders him liable as a
trespasser to the injured party.

In the case of Gordon vs. Longest (16 Peters, 97), where the defendant took the proper steps, under
a statute which required a State court under certain conditions to transmit the cause to the United
States courts, to remove an action brought against him in the State court to the United States court,
and, where the State court persisted notwithstanding such steps, in trying the cause, the court said:
This being clear in the language of the above act, it was the duty of the State court to proceed no
further in the cause. And every step consequently taken, in the exercise of a jurisdiction in the case,
whether in the same court or in the Court of Appeals, was coram non judice.
The case of Austin vs. Vrooman (128 N. Y., 229) is one very similar to the one last mentioned. There
the defendant, a justice of the peace, caused the plaintiff to be arrested on a charge of supplying
diluted milk to a butter factory. Plaintiff, on being arraigned, pleaded not guilty, waived preliminary
examination and offered bail for his appearance before the next grand jury. The offer was overruled
by the defendant. Her was tried, found guilty, and sentenced to pay a fine and to be imprisoned until
paid, not to exceed ninety days. Pursuant to such sentence he was confined in the county jail. The
statute making the act of plaintiff a crime provided that when a person charged with a violation of the
Act should be brought before a justice of the peace, he should have the right to elect to be tried by a
jury after indictment, and on such election the justice could not proceed to try him but could only hold
him to a court having authority to inquire, by intervention of a grand jury, into offenses triable in the
county. In this case the court said, after referring to the case of Gordon vs. Longest (supra), in which
it was held that, in a case very similar in principle to the one under consideration, any action taken
by the State court after refusing to transmit the cause before it to the United States court was wholly
void:
Here in the course of proceedings which he was forced to entertain, and in the case of one
over whose person he has properly acquired jurisdiction, the justice is confronted with the
necessity of deciding a question depending upon the construction to be given to a statute,
and that question must be decided by him one way or the other before he can take another
step in those proceedings which, up to that moment, have been legally and property pending
before him and over which he has had full and complete jurisdiction. It seems plain that his
decision upon the question is one in the course of a proper exercise of the jurisdiction first
committed to him, and that his error in deciding that he had jurisdiction to proceed was an
error of judgment upon a question of law, and that he is therefore, not responsible for such
error in a civil action. It is unlike the case where a justice of the peace proceeded to try a civil
action for assault and battery. (Woodhard vs. Paine, 15 John., 492). The justice never had in
such case obtained jurisdiction over the subject-matter and he could not obtain it by deciding
that he had it. The case falls under the principle of law that where a judge never has had
jurisdiction over the subject-matter, he acts as a trespasser from the beginning in assuming
it, and his decision that he has it is no protection to him. I know it was stated inGordon vs.
Longest (16 Peters, 97), in a case where the defendant took the proper steps to remove an
action brought against him in the State court to the United States court and where the judge
of the State court persisted, notwithstanding those steps, in trying the case, that every step
subsequently taken by the State court in the exercise of jurisdiction was coram non judice.
Yet in such a case the question is put whether the State judge would be liable for proceeding
with the case in the honest exercise of his judgment.
Being thus informed of the judicial meaning of the phrase "excess of jurisdiction," it becomes
necessary, second, to determine what is meant judicially by the expression "lack of jurisdiction." An
example frequently given by the courts to express what is meant by lack of failure of jurisdiction is
that of a justice of the peace taking cognizance of and trying a civil action for assault and battery.
Over such actions jurisdiction of the peace. In fact, the law expressly prohibits them from taking
cognizance of such actions. In such case, the justice never obtains jurisdiction over the subject-

matter. He acts wholly without any authority or jurisdiction. A case illustrating want of jurisdiction is
that of Piper vs. Pearson (2 Gray, 120). There a justice of the peace of the county of Middlesex tried
an individual named Russ for an offense committed within the district of Lowell. By statute said
justice had no power or authority to take cognizance of offenses committed "within the district of
Lowell." The court said: "In the case at bar, the defendant had no more power to entertain jurisdiction
of the complaint against Russ any other individual in the community." If a magistrate acts beyond the
limits of his jurisdiction, his proceedings are deemed to be coram non judice and void." "If he has no
jurisdiction of a cause, he can not sit as a magistrate to try it, and is entitled to no protection while
acting beyond the sphere of his judicial power. His action is thus extrajudicial and void."
This case, however, is not one which ought fairly to be taken as generally illustrative of that class
wherein the court acts wholly without jurisdiction, inasmuch as here whether or not the court had
jurisdiction was a question] of fact. Whether or not the crime was committed "within the district of
Lowell" was not a question of law. Nevertheless, the same principle would have been involved if
there had been a dispute as to the district within the crime was actually committed and the court had
decided that question upon conflicting evidence.
In the case of Bradley vs. Fisher (13 Wall., 335), the court gave the following as illustrating a
condition of complete lack of jurisdiction.
Thus, if a probate court, invested only with authority over wills and the settlement of estates
of deceased persons, should proceed to try parties for public offenses, jurisdiction over the
subject of offenses being entirely wanting in the court, and this being necessarily known to its
judge, his commission would afford no protection to him in the exercise of the usurped
authority.
Having seen from the adjudicated cases the meaning given to the phrases "excess of jurisdiction"
and "want of jurisdiction," it remains to note what has been judicially declared to be the difference
between them. The case last cited contains a statement of that difference. Immediately following the
quotation taken from that case and set forth above appear these words:
But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over
offenses committed within a certain district, should hold a particular act to be a public offense, which
is not by the law made an offense, and proceed to the arrest and trial of a party charged with such
act, or should sentence a party convicted to a greater punishment than that authorized by the law
upon its proper construction, no personal liability to civil action for such acts would attach to the
judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court
held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction
over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions
which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the
court held by him, or the manner in which the jurisdiction from liability which obtains for errors
committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person,
applies in cases of this kind, and for the same reasons.
This excerpt illustrates the difference between excess of jurisdiction and lack of jurisdiction as it is
universally presented by text writers as well as by courts.
The suggestions made after the discussion of the case of Lange vs. Benedict are, in principle and in
effect, applicable to the cases just presented. Nothing could be clearer than that the court in Clarke
vs. May, acted wholly without jurisdiction. It is of no consequence what it is called, whether excess of
jurisdiction or failure of jurisdiction; it still remains the same thing. The court itself said so when it
used the words "after its final disposition by a judgment, the authority to punish such contempt

ceased, and that Clarke was therefore illegally committed." The case of Austin vs. Vrooman is very
like that of Gordon vs. Longest, wherein the Supreme Court of the United States held that the lower
court acted wholly without jurisdiction in retaining the cause before it and proceeding to its
disposition.
Being now fully informed of the meaning of the two legal conditions, "excess of jurisdiction" and "lack
of jurisdiction," and also of the difference between them as presented in the decisions of the courts, I
now desire to consider whether this difference is worthy in any manner of effecting the exactly
opposite legal results which it is alleged they produce. If they produce results so unlike, they should
be so different in their essential natures as to be plainly and easily distinguishable. Yet in spite of
that, after a careful consideration of every adjudicated case upon the subject within my reach, I have
been forced irresistibly to the conclusion that there is not, really and intrinsically, the slightest
difference between them. The alleged difference is a fiction of law, pure and simple, born of the
necessity to escape the logical but wholly unjust and indefensible consequences of a rule of liability
based on no sound principle of law and incapable of defense upon any theory of logic or justice.
While we have seen from the cases cited the different circumstances which attended the courts up to
the time when they performed the acts complained of, namely, that the one never had jurisdiction at
all and the other had it at first but abandoned it later, we have nowhere seen in those authorities nor
why they should produce results so violently in opposition. We have also seen from those cases that
excess of jurisdiction is the estate of beingbeyond the limits of jurisdiction, i.e., outside of the power
and authority conferred so far outside indeed that the act of the court is coram non judice and
void. (Gordon vs. Longest, 16 Peters, 97; Ex parte Lange, 18 Wall., 163; Clarke vs. May, 2 Gray,
410; Ex parte Park, 93 U. S., 23.) We have also noted from those decisions that the only
characteristic of excess of jurisdiction, the quality and the only quality which distinguished it from
lack of jurisdiction, that which gave it its peculiar and distinctive virtue, was that, in excess of
jurisdiction the court had jurisdiction at the beginning of the cause, but lost it later; whereas in lack of
jurisdiction the court never had jurisdiction at all.
Now, if a court is really outside of the limits of his jurisdiction, what difference does it make, as to his
liability for subsequent acts, when he arrived there? Ought the time when he finds himself outside to
have any significance whatever? Should the fact that he was outside at the beginning of the cause,
instead of when it had run half of its course or more, have any force or effect? Is the judge who was
never inside the jurisdictional inclosure any more outside of it than he who, having once been within,
voluntarily steps wholly outside? Both being completely outside, is one in worse position, legally or
morally, than the other? Does the mere fact that the one had never been inside necessarily make
him a greater malefactor than the other who comes as completely out, having once been in ? Ought
the legal consequences of their acts to be different when both are acting from exactly the same
basis, viz, outside of their authority? One who steps from his house into the street is as much
outside the structure as though he had never entered it; and while there, he is as unprotected from
the elements as though he had never had a roof over his head. Although he may return to his house
and enjoy again its shelters and comforts, still he can never change the fact that he once stood
unprotected in the street, that the changing wind had once buffeted him as it willed, that the storms
had once drenched him to the skin, and that the frost had once bitten him to the bone. He who owns
a million of money and throws it into the sea remains in as penniless a poverty as he who never
owed a dollar in all his life. The court who, having once been clothes in the garment of jurisdiction,
divests that garments, stands forth as judicially naked as he who had never robed with the
vestments of authority. So, the court that once had jurisdiction of a cause and divests that power by
his own act stands thereafter as bereft of judicial authority as though he had never acted under
sanction of the law. As a matter of language, that is the only meaning;" as a matter of fact, that is the
only definition claimed for it.

I am fully aware that a judge of a court which acts wholly without jurisdiction is, in a sense, a usurper.
I know that a judge who proceeds in complete absence of jurisdiction, really and effectually by such
act, makes a law to fit the case. In other words, he legislates. I admit that to permit a judge thus to
make a law and then to adjudicate it also is to permit a approach to tyranny. I am fully aware that this
is the essence of the argument against the immunity of the judge who thus acts. It must not be
forgotten, however, that we are discussing whether there is an essential difference between lack of
jurisdiction and excess of jurisdiction. If therefore, we find that there is fully as much tyranny in the
one as in the other , what matters it how much tyranny there may be in lack of jurisdiction? The cry
of tyranny there may be in lack of jurisdiction will be effectually stopped if it appears that acting in
excess of jurisdiction, the thing which is permitted by the courts wholly to excuse effects the same
result. That the one is as tyrannical as the other can not be doubted. A judge, having by law general
jurisdiction criminally, who declares a state of facts presented to him to be a crime within the
provisions of that law, when in reality it is not a crime at all, creates a law as distinctively and
completely as does the judge who decided that there is a law giving his jurisdiction criminally, when
in fact no such law exists. In such case, he declares a crime to exist when it really does not. To
enable a court to declare an act a crime, there must be a law making it a crime. To declare an act a
crime when there is no law making it such, is, so far as that particular case and all others like it are
concerned, to make a law by judicial fiat. What signifies it that the court has jurisdiction of all
larcenies if he declares an act a lacerny which in truth and reality is not? The fact that he has
jurisdiction of all lacernies none the less makes his erroneous act the creation of a new law. What
does it signify that hr once had jurisdiction when he thus, by his naked fiat, makes criminal a act
otherwise legal and moral, and thereby convicts and imprisons an innocent man in violation of the
law of the land. He could go no farther, could do no more if he acted wholly without jurisdiction from
the beginning, Of what significance is it that in the one case he acts in excess of jurisdiction and in
the other without jurisdiction when he does exactly the same thing and produces exactly the same
result in both cases?
We have already seen that the only difference which any court or text writer has been able to point
out between the two cases is the fact that in case of excess of jurisdiction the court had jurisdiction
of the subject-matter at the beginning whereas in the other case jurisdiction was never present at all.
The only use which courts and text writers have made of that difference, the only use in fact that
could possibly be made of it, is that, having jurisdiction of the subject-matter, the court then has the
power to determine whether or not a given set of facts presented to him to induce his action falls
within his jurisdiction; whereas, in the case of failure of jurisdiction there being in fact no law
conferring powers, the court had no power or authority to determine anything whatever. It is urged
also than an indispensable prerequisite of the effective administration of justice is that a judge,
having jurisdiction, be allowed to decide whether a given set of facts is within the law by which his
jurisdiction is conferred. But is it any more necessary and essential that he be allowed to decide that
question than it is that he be allowed to determine whether he has any power at all in the premises?
Is it more essential for him to be allowed to decide whether a certain set of facts is or is not within his
powers than it is to allow him to determine whether or not he has powers? Is it any more an
inevitable prerequisite that he be permitted to determine theextent of his powers than that he be
allowed to decide whether he has powers? If he is a court, that very fact makes it necessary to
determine what his powers are. To do that he must not only determine what the laws are and what
they mean, but he must also determine whether there is a law. It is sometimes a very much more
difficult question to determine whether there is any law at all than it is to decide what the law means
when its existence is admitted. But, comes the suggestion, the court in such cases having once had
jurisdiction of the subject-matter "no personal liability to civil action for such acts(in excess of
jurisdiction) would attach to the judge, although those acts would be in excess of his jurisdiction or of
the jurisdiction of the court held by him, for these are particulars for his judicial consideration, . . .
(Bradley vs. Fisher, supra.) This suggestion may be answered in two ways:

It means nothing to say that the law required the lower court to act upon the question before it, it
having jurisdiction of the cause at the time and it already having proceeded therewith to the point
where it was confronted with the question concerning which it erred. Exactly the same thing, in effect
and in principle, may be said of the court which proceeded to take cognizance of a cause in entire
absence of authority to do so. For, the law also requires a court to act whenever a question is
presented to it, no mear if it be one over which it has no power or authority whatever. Law and
necessity alike compel to him. If he have no jurisdiction or authority, he must, nevertheless, act. He
must declare he has not and refuse to proceed. But the point is, he must act, he must decide, he
must adjudicate; and he must do so whether the question of his jurisdiction be clear or doubtful. In
both cases, excess of jurisdiction and failure of jurisdiction, the courts are confronted with exactly the
same necessity, each must act. The question confronting one court, viz, whether it has jurisdiction or
not, may be much more doubtful and far more difficult of solution than that which faces the other. Yet
one is liable and the other not. I have looked in vain for a valid or convincing reason why, both being
in error, the judge of one court should be destroyed and the other saved.
This suggestion also contains an admission rather than an argument an admission which
destroys absolutely the theory that the crucial test in determining the civil liability of a judge is that of
jurisdiction. This suggestion admits that the thing which excuses is not jurisdiction, but judicial action;
not jurisdiction, but the exercise of the judicial function; not jurisdiction, but judicial consideration;"
and that the only reason why the one excuses and the other does not is the opportunity which the
former furnishes for the use of the judicial faculty. We must conclude, therefore, since it is not
jurisdiction, but judicial action, which excuses, that whenever and wherever a court exercises the
judicial function, he will not be personally liable civilly for the result of his action, and this utterly
regardless of whether he ever had jurisdiction or not. and that is precisely what i am contending for. I
regard the doctrine of jurisdiction as counter to that public policy which lies at the base of and is the
sole and whole reason for the immunity of judges from civil liability. That public policy demands that
a judge shall be protected when he is a judge, not when he has jurisdiction. He is a judge when he
acts like a judge; that is, when he acts judicially. All that public policy requires in order to extend its
perfect protection over the judge is that the question in which the error is made shall be a judicial
question. In other words, it is the nature of the question involved which is transcendentally important,
and not the position in which the judge finds himself legally, before, at the time of, or after his error.
The question is "What kind of question were you deciding when you made that error?" not "what was
your position before or after you made it?" It is, it can be of no consequence whatever whether there
be a failure of jurisdiction or excess of jurisdiction. Is the question for determination one which
requires the exercise of judicial functions for its resolution? If it is then that is an end of the matter of
liability, utterly irrespective of jurisdiction. An error by which a court induces itself to act wholly
without jurisdiction is an error of law, an error of judgment after consideration, of exactly the same
nature as that which induces a court to act in excess of jurisdiction. It is an error of judgment as to
whether he has any power at all in the premises. It is an erroneous determination of a question
which, by virtue of the fundamental constitution of his office, is inexorably forced upon him for
determination as his very first act in every case. Public policy, indeed, public necessity, demands that
he act, if he is judge. The safety, stability, and perpetuity of the State and its institutions imperatively
require him to act. Therefore, being thus driven to act, and his first act being necessarily and
inevitably to determine whether his authority comprehends the subject-matter presented to him, can
it possibly be true that public policy, the very force that drove him to act, will punish him for such
action if he has exercised the very functions with which that public policy had endowed him? I am
aware that it may be said that public policy does not protect those who act wholly without authority.
But my contention is that he has authority. The fact that he is a judge means nothing else. That one
has been named a judge is no idle thing. It is to be presumed that he has some powers, that some
authority attaches to the office, or it would not have been created. As a judge he has responsibility of
the most solemn and important character. He has duties correspondingly solemn and important. By
far the greatest and most important of these is to determine what those powers are. But this is
simply the determination of the question of jurisdiction. This is, as we have seen already, a judicial

determination of the purest character. If he determines that question wrongly and proceeds
thereafter to act, he acts wholly without jurisdiction. But is he more guilty or culpable than the judge
who, with equal error, determined a similar question of jurisdiction but at a different period of the
cause? Is it possible that one can be appointed to one of the highest and most august positions in
the gift of man, and still not be able to determine what he may do without subjecting himself to the
risk of financial ruin, and may happen, of imprisonment? If so, his office is not only a monstrous
farce, but is also a thing which deserves, as it certainly will receive, the contempt and the jeers of
mankind. I repeat that a judge acts judicially as purely and perfectly when he is determining, at the
very inception of the proceeding, the question of whether or not he has any jurisdiction whatever in
the premises as he does when, later in the case, he decides what the extent of that jurisdiction is.
That is a judicial determination as clearly and unmistakably as would be his decision that A was
entitled to a judgment against B only of a very much more fundamental character. So that, if it is
the use of the judicial function which absolves, why should the one be excused with the respect of
the community and the other condemned with ruin and disgrace? But, comes the reply, a judge id
not a judge if he have no jurisdiction; and he can not exercise judicial functions unless he is a judge.
Therefore, if he have no jurisdiction he can not exercise judicial functions. Not being able to exercise
judicial functions, he cannot, as a necessary consequence, be excused from liability, inasmuch as
immunity from liability springs solely from the exercise of such functions. But that logic is fatally
defective. Its major premise, namely, that if he have not jurisdiction a judge is not a judge and can
not, therefore, exercise judicial functions, is wholly false? How is he to know whether he has
jurisdiction or not? By what process does he determine whether or not he has any power at all?
Does that determination come to him by inspiration? Is it handed to him ready-made? How does he
arrive at the conclusion that he has jurisdiction or that there is a complete failure of it? Why does he
arrive at one of these conclusions and not the other; and why does he not arrive at both? Is he
simply a man when he determines the question of jurisdiction but a judge when he decides every
question in the case? The answer to these question is simple. The determination by the court of the
question whether he has not jurisdiction is a judicial determination.The indispensable prerequisite to
the simplest and most elementary judicial act of any court is the determination of the question of
jurisdiction. It is utterly impossible for him to act in the simplest matter that can be brought before
him without first making that determination. It is an inevitable necessity which is inexorably required
to precede everything else in the functions of every court. It is thrust upon him instantly with the
appearance of the first suitor in his court. It is the indispensable prerequisite of every judicial act. It
was elemental in the creation of the judicial office. The implacable forces that created the office, the
unalterable nature of its functions, drive him irresistibly to that primordial determination. That
necessity is ever with him. It is imperative, merciless, and inexorable. Born with his office, it dies only
with his office. May we say, then, that it is not a judicial determination the exercise of judicial
functions? Shall we assert that it is not an exercise of judicial nature of his office inevitably requires
him to decide as an absolute condition precedent to the performance of any other act in the cause?
It seems to me that it can not be doubted that it is a judicial determination, and one of the very first
importance. In fact, it is the highest and most important judicial function which a court can possibly
exercise.
The court, although he sees his jurisdiction written as clear as light, makes, nevertheless, the judicial
determination of jurisdiction as really and as fully as does the court who spends days and nights of
laborious inquiry into doubtful laws to decide the same question. The court who had jurisdiction and
then exceeded it inevitably determined first of all that very question of primary jurisdiction as
completely as did the court who, really having no jurisdiction, determined erroneously that he had;
and, if the first had made a mistake in determining jurisdiction at the beginning, ought he suffer more
than he did suffer for making later in the cause the very same mistake, the mistake by which he
exceeded his jurisdiction? The mistake in either case was over the same question, namely,
jurisdiction. Ought it, in fairness, to make any difference when the jurisdictional mistake is made?
Ought the judge who made the mistake at the beginning of the cause to suffer more than he who
made a mistake over the same question later in the same case? Ought an error in regard to

jurisdiction made at the opening of court be more fatal or require severer punishment than one made
at the close? Is a mistake greater because it was made at 10 a.m. than 5 p.m. To be sure, in the one
case he had jurisdiction at first; but he used it only as a means to exceed that jurisdiction later, to put
himself outside of it. That is simply a history of how he came to be outside of his jurisdiction but, of
itself, it furnishes no reason why he should be excused from liability while the judge who never had
jurisdiction should be ruined financially, disgraced before the public and his usefulness as a judge
destroyed, wholly irrespective of the nature of the questions involved or the functions exercised, and
utterly without regard to the results produced. I know it may be urged that the law having given the
court jurisdiction and power to embark upon the cause, it must necessarily be presumed that he has
also power and jurisdiction to dispose of it; and that if that disposition is wrong he ought not to be
liable as he was simply performing the judicial duty which the law imposed. Exactly. But when the
judicial office is created and a judge is appointed, is there not, must there not be, a presumption of
power on his part to determine the limits and extent of his jurisdiction? Indeed, must he not
necessarily have the power to determine whether he has any power at all or not? The jurisdiction to
determine whether he has jurisdiction? The question whether a court has any power at all is often
involved in greatest doubt. The very existence of the law under which he is asked to act may be
doubtful. When its existence is assumed, its meaning, extent, scope, and applications. He must
decide all these questions before he proceeds with the case presented. I say again, he must have,
necessarily, jurisdiction to determine whether he has jurisdiction. Who is to determine that question if
he does not? He has no one to do it for him; no one to whom he may turn for assistance. There is no
one to whom he may hand the responsibility. Hemust act. He alone must assume the responsibility.
He may not idly on his bench and refuse to act because he is uncertain whether or not he has the
authority to act. Such conduct would warrant his removal from office. But removal would not be the
cure inasmuch as his successor would be in the same condition of doubt. If the judge refused to act
in every case where jurisdiction was in doubt, a court of justice would be a rank imposture. The
judge must act, and he must act not only in cases of doubt upon the merits where jurisdiction is
conceded, but he must also act in cases where jurisdiction itself over the whole subject-matter is a
serious and doubtful question. How can it be said, then, that in the one case he is liable and in the
other he is not? A judge of a court having jurisdiction and acting on the merits of a question may, by
a decision plainly and manifestly in violation of the law, literally confiscate the property of a party
litigant and thereby reduce him and his family to beggary, himself escaping entirely unscathed; while
the judge of another court who , by an erroneous assumption of jurisdiction after a thorough and
painstaking investigation of that question, a question concerning which the best minds might
reasonably differ, promotes thereby the real justice between the parties upon the merits, would,
nevertheless, be helplessly liable to respond fully in damages for the injuries caused by his act, with
all that such liability might imply to his fame, his fortune, and his official position.
It may be added, by way of repetition, that it signifies nothing to say that, because a curt finds
himself lawfully in the midst of a cause, he must be allowed to determine it in one way or another,
and that in doing so he should be protected. It is no more essential that he continue it than that
he begin it. A litigant who is not permitted to finish is in no worse condition than one who was never
allowed to begin. Moreover, if it held that the law requires a court to begin right, it must be equally
true that a court having begun right, must continue right. There should be no more license
to continue wrong than to begin wrong. The prohibition should be equal in both cases. While it is true
that a court can not give itself jurisdiction by determining that it has it, nevertheless, that idea in
nowise militates against the position here taken, as the argument which it presents is as applicable
to a case involving excess of jurisdiction as to one where there is want of jurisdiction.
If we follow strictly the rule which holds civilly liable the court who, at the beginning of the cause,
errs, as to his jurisdiction over the subject-matter, and wholly excuse him who errs as to his
jurisdiction over the subject-matter later in the cause, we have this result:

A matter is presented to a court for action. He has really no jurisdiction whatever over it; but, after
due deliberation decides that he has, and proceeds. He arrests A, tries and convicts him of
homecide, and sentences him to twenty years in prison. Question determined, jurisdiction.
Act, coram non judice and void. Result, judge liable.
A matter is presented to another court for action. He has jurisdiction in the first instance. He
proceeds. Later he arrives at a point in the case where he fails absolutely of jurisdiction to proceed
further with the cause. But, after due deliberation, he nevertheless decides that he has jurisdiction
and proceeds. He tries and convicts B of homecide and sentences him to twenty years in prison.
Questioned determined, jurisdiction. Act, coram non judice and void. Result, judge not liable.
Why this difference in result? It is no answer to easy that, in the second case, the court, having
jurisdiction, had, therefore, the right to determine any question that might arise during the progress
of the case, even if it be a question as to his jurisdiction to proceed further, and in making such
determination he would be protected; for, in the first case, the fact that he is a court gives this right,
as it places upon him the duty to determine whether he has the authority to inaugurate the
proceedings, and in the determination of that question he, too, ought to be protected. The
determination of the jurisdictional right to begin, is of exactly the same nature and quality as the
determination of the jurisdiction to continue. The resolution of the two questions involves exactly the
same mental processes, the use of exactly the same discretion, the adoption of precisely the same
methods, the exercise of identical functions; while the purposes animating the courts in their
decisions are absolutely the same in both cases, namely, the faithful and efficient discharge of the
duties and obligations of the office. The two question themselves, as representing the two legal
conditions, are exactly the same inherently. The fact the one question is determined at one stage of
the cause, while the other is decided at another, is purely accidental and incidental.
Let me give an example more concrete: Whether or not a Court of First Instance of the Philippine
has jurisdiction over a given subject-matter depends upon whether or not a certain law of Spanish
origin in force prior to the American occupation survived the change of sovereignty. If that law
survived he has jurisdiction. If did not, he is absolutely devoid of jurisdiction. The determination of
that question involves a careful investigation of the fundamental law of the Islands as derived from
American sources; an interpretation of its force and significance as well as the scope of its
application; the construction of the order of the President to General Merritt and of the proclamation
of the latter to the Philippine people, both heretofore quoted, and last, and perhaps most difficult of
all, the resolution of the question presented by that part of the above-mentioned order of the
President which provides that "the municipal laws of the conquered territory, such as affect private
rights of person and property, and provided for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the new order of things." When is a Spanish
law "compatible with the new order of things' and when incompatible? Upon the determination of that
questions depends absolutely the jurisdiction of the court. Was ever a question more perfectly
judicial? Could there possibly be a question in the resolution of which the judicial function was more
clearly exercised? Has there ever been, or will there ever be, a situation in which a man could be
more a judge than here? Yet we are asked hold that the Court of First Instance would not be
protected in the determination of that question.
Moreover, this rule take cognizance whatever, as we have before noted, of the nature of the
questions to be solved by the two judges in question. It makes no difference between the cases
where the question of jurisdiction of great doubt and difficulty and those where the lack of jurisdiction
and authority is so plain and clear that it ceases altogether to be a question. For example, in the
illustration given, wherein the Court of First Instance was obliged to determine the existence of a
Spanish law, there is presented a question of great intricacy and extreme difficulty of determination.
Yet the judge who decided that question, after the most careful and painstaking investigation and

study, and decides wrongly, receives, under the doctrine we are discussing, no more mercy than
another judge who, during the progress of the cause, orders the head of one of the parties stricken
off by the sheriff. Although the lack of jurisdictional authority or power to make such an order is so
clear and so plain that it can not be a question of any kind from any point of view, and especially not
one requiring for its solution the exercise of the judicial functions; and although such an act so
transgresses every judicial precedent, so violates every principle of law, so outrages the commonest
sense of justice, and so debauches the functions and purposes of a court, that no judge can be
heard to say that he was exercising judicial functions in the performance of such an act,
nevertheless, that judge, so far as his civil responsibility is concerned, stands, under the doctrine
referred to, in exactly the same position as the judge who clearly and admittedly exercised judicial
functions in the determination of a question over which the best legal minds have been found to
differ.
Still worse. A judge who, even while acting in excess of his jurisdiction, corruptly and criminally sells
his judgment to whomsoever pays him highest, and thus, debauches and prostitutes the functions of
his office before the world, would not be liable civilly to the person injured; while another judge,
learned in the law, unimpeachable in integrity, unquestioned in honesty, but who made a mistake of
judgment over the intricate and doubtful question of his initial jurisdiction, would be ruined financially
and his usefulness as a judge completely destroyed. And all this because one judge erroneously
decided the question of jurisdiction at the beginning of the cause, while the other erroneously
decided the same question later in the case.
Under this doctrine I am anxious to know what reason would be given for holding civilly liable a judge
who, as a court, having jurisdiction of the cause and parties, should order the head of one of the
parties stricken off and that order should be obeyed. That he would be so liable is certain. But what
reason could be given for it under the doctrine that jurisdiction is the touchstone of liability? He had
jurisdiction of the case, and, under the doctrine, had the right to pass upon any question which he
might regard as related to the case, and he could not be questioned civilly for so passing his
judgment even though it lead him wholly outside and beyond his jurisdiction and indeed him to
perform acts completely illegal and void. It is no answer to say that the act was wholly outside of his
jurisdiction and power to perform and was illegal and void, for, so was the act of the United States
Circuit Court judge in Lange vs. Benedict, supra; and yet he was held not to be civilly liable. The
mere fact that he acted in excess of his jurisdiction is not sufficient to condemn under the doctrine.
Neither is it a reply to say that such a question could not possibly arise in the case, nor that such an
act was so gross and apparent a violation of the duties of the court and such a palpable prostitution
of his proper functions, that he would not be allowed to say that he acted as a judge in the
performance of such an act. These are not answers, base the liability of the judge not upon the
question of jurisdiction but upon the proposition that the question was one the determination of which
required the exercise of judicial functions. The essence of the whole matter is this. Was the
determination of the question whether he had the right to perform the act complained of one which
required the exercise of the judicial function? Whether or ]not he was, in the resolution of the
question, exercising judicial functions does not all depend upon whether he had jurisdiction of the
subject-matter of the cause. As we have said, a court may exercise judicial functions as perfectly
and as fully in determining whether he has jurisdiction of the subject-matter presented to him for
action as he may in deciding any question in the case when his jurisdiction of the subject-matter is
conceded. A court always has power and jurisdiction to determine whether it has jurisdiction.
We thus see the embarrassment which is necessarily present in attempting, under the doctrine that
jurisdiction determines liability, to hold a judge who has jurisdiction of the cause civilly liable for
performing an act outside of his jurisdiction no matter how far outside it may be. It is as apparent,
also, that all such embarrassment disappears when, instead of making jurisdiction the test of liability,
we make the exercise of judicial functions the real test.

I believe that it has been thoroughly established that the test of judicial liability is not jurisdiction. I
believe it has also been as thoroughly established that such liability depends wholly upon the nature
of the question which was being determined when the error complained of was made by the court;
that is, it must have been a question the determination of which required the exercise of judicial
functions. With that condition, jurisdiction has nothing vital to do.
When, then, is a judge civilly liable for his illegal acts? When the question which he wrongly
determines is one in the solution of which he can not be said to use judicial attributes. I again
present the illustrations I have already given. During the course of a trial the judge orders the head
of one of the parties stricken off by the sheriff. As we have already said, such an act so transgresses
every judicial precedent, so violates every principle of law, so outrages the commonest sense of
justice, and so debauches the functions and purposes of a court, that no judge can be heard to say
that he was exercising judicial functions in its performance. His lack of power is so clear that,
whether he has such power, ceases to be a question. There are certain limits beyond which a judge
will not be permitted to say that he was a judge, or that he was acting as a judge. On the other hand,
the example given in which the Court of First Instance was required to determine the question of the
survival of the Spanish law in order to reach a conclusion as to whether he had jurisdiction or not,
clearly discloses a case where the judicial attributes were exercised. That is the question over which
courts in general may really differ. Concerning it two opinions are allowable. In other words, there
are two sides to the question. If the question is one which a judge, qualified in the average way for
the position occupied by the offending judge or for a similar judicial position, would regard as a
question, then it is one whose determination requires the exercise of judicial functions. But if it is one
so clear that a judge qualified as aforesaid, would not regard it as a question, then it is one whose
determination does not require the exercise of judicial functions. In the former case the judge is not
liable. In the latter case, he is. To put in another way. If the question is one which can be regarded by
a judge, qualified as above stated, as having two sides, then the judge is not liable for an erroneous
decision. But if it be one which can not be regarded by such judge as having two sides, then the
judge is liable for a wrong decision.
Although it is admitted, as I do admit, that the Governor-General had and has no power or authority
to expel domiciled aliens, it must, nevertheless, be freely conceded, and this is the vital and
conclusive point in this case, that from his point of view there are two sides to that question. That
such is the case is conclusively established by the fact that three judges of this court have already
decided, after mature deliberation, that he actually has such powers. This being so, it becomes a
real question, the determination of which requires the exercise of judicial functions. In such
determination he is protected even though he errs.
Whether or not the given question is such one as I have above described, that is, whether it is one
which would be regarded by a judge, qualified in the average way for the position occupied by the
offending judge or a similar judicial position, as having two sides, is always a question of law and not
of fact. It is a condition established by the existing law. It is a matter not susceptible of proof. The
court is required to take judicial notice of the law of the land. It can not be established by evidence.
The condition, the state, of the law when the offending act was committed is fixed. It can not be
changed by evidence. When the act is admitted, liability is a pure question of law. Even the motive
which influenced or controlled the judge in his decision can not be proved. It is immaterial under the
doctrine of Bradley vs. Fisher. He is not judged from his moral but from his legal relation to the
question.
The foregoing is an explanation, if one were needed, of the expression in my former opinion in this
case, in which I made reference to the Governor-General acting "in the honest belief" that he had the
authority to perform the acts complained of. By such expression I did not mean to call attention to
the Governor-General subjectively. I did not mean to bring in issue his state of mind, morally or

ethically, at the time he acted, nor the motive which impelled him. What was meant there is. Was the
question which confronted him for solution one over which men qualified for that or a similar station
would really differ; one which the average of man fit for that position would regard as a real question.
In other words, Is it one which, from the viewpoint of a man ordinarily qualified for that position, has
two sides? "Honestly," as used, referred to the nature of the question rather than the state of mind or
motive of the Governor-General. The state of mind morally of a judge, the motives which induce him
to at, are of no consequence in determining his liability. In the case of Bradley vs. Fisher, supra, cited
in my former opinion as well as in this, the court says:
Nor can this exemption of the judges from civil liability be affected by the motives with which
their judicial acts are performed. The purity of their motives can not in this way be the subject
of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in
1608 (12 Coke, 25), where it was laid down that the judges of the realm could not be drawn
in question for any supposed corruption impeaching the verity of their records, except before
the King himself, and it was observed that if they were required to answer otherwise, it would
"tend to the scandal and subversion of all justice, and those who are the most sincere would
not be free from continual calumniation's."
The truth of this latter observation is manifest to all persons having much experience with judicial
proceedings in the superior courts. Controversies involving not merely great pecuniary interest, but
the liberty and character of the parties and, consequently exciting the deepest feelings, there is a
great conflict in the evidence and great doubt as to the law which should govern their decision. It is
this class of cases which imposes upon the judge the severest labor, and often create in his mind a
painful sense of responsibility. Yet it is precisely in this class of cases that the losing party feels most
keenly but the soundness of the decision in explanation of the action of the judge. Juts in proportion
to the strength of his convictions of the correctness of his own view of the case is he apt to complain
of the judgement to pass to the ascription of improper motives to the judge. When the controversy
involves questions affecting large amounts of property or relates to a matter of general public
concern, to touches the interest of numerous parties, the disappointment occasioned by an adverse
decisions often finds vent in imputations of this character, and from the imperfection of human nature
this is hardly a subject of wonder. If civil actions could be maintained in such cases against in his
complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the
protection essential to judicial independence would be entirely swept away. Few persons sufficiently
irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any
character to the acts which would be essential to the maintenance of the action.
If upon such allegations a judge could be compelled to answer in a civil action for his judicial
acts, not only would his office be degraded and his usefulness destroyed, but he would be
subjected for his protection to the necessity of preserving a complete record of all the
evidence produced before him in every litigated case, and of the authorities cited and
arguments presented, in order that he might be able to show to the judge before whom he
might be summoned by the losing party and that judge perhaps one of an inferior
jurisdiction that he had decided as he did with judicial integrity; and the second judge
would be subjected to a similar burden, as he in his turn might also be held amenable by the
losing party.
Some just observations on this head by the late Chief Justice Shaw will be found in Pratt vs.
Gardner (2 Cush., 68), and the point here was adjudged in the recent case of Fray vs.
Blackburn (3 West and S., 576) by the Queen's Bench of England. One of the judges of that
bench was sued for a judicial act, and on demurrer one of the objections taken to the
declaration was that it was bad in not alleging malice. Judgment on the demurrer having
passed for the defendant, the plaintiff applied for leave to amend his declaration by

introducing an allegation of malice and corruption; but Mr. Justice Compton replied: "It is a
principle of our law that no action will lie against a judge of one of the superior courts for a
judicial act, though it be alleged to have been done maliciously and corruptly; therefore the
proposed allegation would not make the declaration good. The public are deeply interested
in this rule, which, indeed, exists for their benefit, and was established in order to secure the
independence of the judges, and prevent them being harassed by the vexatious actions;"
and the leave was refused. (Scott vs. Stansfield, L. R., 3 Exch., 220.)
In this country the judges of the superior courts of record are only responsible to the people,
or the authorities constituted by the people, from whom they receive their commissions, for
the manner in which they discharge the great thrusts of their office. In the exercise of the
powers with which they are clothed as ministers of justice they act with partiality, or
maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to account by an
impeachment and suspended or removed from office. In some States they may be thus
suspended or removed without impeachment by a vote of the two houses of the legislature.
In the case of Randall vs. Brigham (7 Wall., 523; 74 U. s., 285), decided by this court at the
December term of 18 68, we had occasion to consider at some length the liability] of judicial
officers to answer in a civil plaintiff had been removed by the defendant, who was one of the
justices of the Superior Court of Massachusetts, from the bar of that State, and the action
was brought for such removal, which was alleged in the declaration to have been made
without lawful authority and wantonly, arbitrarily, and oppressively. In considering the
questions presented, the court observed that it was a general principle, applicable to all
judicial officers, that they were not liable to a civil action for any judicial act done by them
within their jurisdiction; that with reference to judges of limited and inferior authority it had
been held that they were protected only when they acted within jurisdiction; that if this were
the case with respect to them, no such limitation existed with respect to judges of superior or
general authority; that they were not liable in civil actions for their judicial acts, even when
such acts were in excess of their jurisdiction, "unless, perhaps when the acts in excess of
jurisdiction are done maliciously or corruptly." The qualifying words were inserted upon the
suggestion that the previous language laid down the doctrine of judicial exemption from
liability to civil actions in terms broader than was necessary for the case under consideration,
and that if the language remained unqualified it would require an explanation of some
apparently conflicting adjudications found in the reports. They were not intended as an
expression of opinion that in the cases supposed such liability would exist, but to avoid the
expression of a contrary doctrine.
In the present case we have looked into the authorities and are clear, from them, as well as
from the principle on which any exemption is maintained, that the qualifying words used were
not necessary to a correct statement of the law, and that judges of courts of superior or
general jurisdiction are not liable to civil actions for their judicial acts; even when such acts
are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.
Applying to the case at bar the analogy to which we have so far consistently adhered, it is necessary
to conclude, from the principles asserted in the quotation, that the motives with which the illegal acts
of the Governor-General were performed can not effect in any way his responsibility stated
heretofore, the liability of the Governor-General is a question of law and not of fact. It depends
entirely on the state of law, of that the court takes judicial notice without proof.
The foregoing discussion is not a criticism of the case of Bradley vs. Fisher, so many times referred
to. On the contrary, I am confident that this case, when properly viewed, is, as I have heretofore
stated, fully in accord with the considerations and conclusions indulged herein, and may reasonably,

indeed, if the dictum therein contained authority for them. In that case the name of the plaintiff
criminal branch of the supreme court of the District of Columbia by the judge thereof, the defendant
in the action. The following was the order entered by the court:
On the 2nd day of July last, during the progress of the trial of John H. Surat for the murder of
Abraham Lincoln, immediately after the court had taken a recess until the following morning,
as the presiding justice was descending from the bench, Joseph H. Bradley, esq., accosted
him in a rude and insulting manner, charging the judge with having offered from the
commencement of the trial. The judge disclaimed any intention of passing any insult
whatever, and assured Mr. Bradley that he entertained for him no other feelings than those of
respect. Mr. Bradley, so far from accepting this explanation or disclaimer threatened the
judge with personal chastisement. No court can administer justice or live if its judges are to
be threatened with personal chastisement on all occasions whenever the irascibility of
counsel may be excited by imaginary insult. The offense of Mr. Bradley is one which even his
years will not palliate. It can not be overlooked or go unpunished.
It is therefore, ordered that his name be stricken from the roll of attorneys practicing in this
court.
The suit was founded on this order, the plaintiff alleging that the defendant "falsely, fraudulently,
corruptly, and maliciously intended thereby to give color of jurisdiction" for making order referred to,
and that he acted unlawfully, wrongfully, unjustly, and oppressively in making such order. The action
was one against the judge for damages occasioned by such act. In deciding the case the court said:
In other words, it sets up that the order for the entry of which the suit is brought was a judicial
act, done by the defendant as the presiding justice of a court of general criminal jurisdiction.
If such were the character of the act, and the jurisdiction of the court, the defendant can not
be subjected to responsibility for it in a civil action, however erroneous the act may have
been, and however injurious in its consequences it may have proved to the plaintiff. For it is
a general principle of the highest importance to the proper administration of justice that a
judicial officer, in exercising the authority vested in him, shall be free to act upon his own
convictions, without apprehensions of personal consequences to himself. Liability to answer
every one who might himself aggrieved by the action of the judge would be inconsistent with
the possession of his freedom, and would destroy that independence without which no
judiciary can be either respectable or useful. As observed by a distinguished English judge, it
would establish the weakness of judicial authority in a degrading responsibility.
The criminal court of the District, as a court of general criminal jurisdiction, possessed the
power to strike the name of the plaintiff from its rolls as a practicing attorney. This power of
removal from the bar is possessed by all court which have authority to admit attorneys to
practice.
The criminal court of the District erred in not citing the plaintiff, before making the order
striking his name from the roll of its attorneys, to show cause why such order should not be
made for the offensive language and conduct stated, and affording him opportunity for
explanation, or defense, or apology. But this erroneous manner in which its jurisdiction was
exercised, however it may have affected the validity of the act, did not make the act any less
a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of
the plaintiff, as though the court had proceeded without having any jurisdiction whatever over
its attorneys.

A distinction must be here observed between the excess of jurisdiction and the clear
absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over
the subject-matter any authority exercised is a usurped authority, and for the exercise of
such authority, when the want of jurisdiction is known to the judge, no excuse is permissible,
But where jurisdiction over the subject-matter is invested by law in the judge, or in the court
which he holds, the manner and extent in which the jurisdiction shall be exercised are
generally as much questions for his determination as any other questions involved in the
case, although upon the correctness of his determination in these particulars the validity of
his judgment may depend. Thus, if a probate court, invested only with authority over wills
and the settlement of estates of deceased persons should proceed to try parties for public
offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this
being necessarily known to its judge, his commission would afford no protection to him in the
exercise of the usurped authority. But if, on the other hand, a judge of a criminal court,
invested with general criminal jurisdiction over offenses committed within a certain district,
should hold a particular act to be a public offense, which is not by the law made an offense,
and proceed to the arrest and trial of a party charged with such act, or should sentence a
party convicted to a greater punishment than that authorized by the law upon its proper
construction, no personal liability to civil action for such acts would attach to the judge,
although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court
held by him, whenever his general jurisdiction over the subject-matter is invoked. Indeed
some of the most difficult and embarrassing questions which a judicial officer is called upon
to consider and determine relate to his jurisdiction, or that of the court held by him, or the
manner in which the jurisdiction shall be exercised. And the same principle of exemption
from liability which obtains for errors committed in the ordinary prosecution of a suit where
there is jurisdiction of both subject and person applies in cases of this kind, and for the same
reasons.
It must be noted in the first, place, that, inasmuch as the court, in that case, was found to have had
full jurisdiction of the person of the plaintiff and the subject-matter before him, the court erring simply
in his method of procedure, the question of the civil liability of a judge for acts performed with
complete lack of jurisdiction did not arise.
In the second place, especial and particular attention is called to certain expressions in the decision
which occur in that portion relative to the liability of a judge acting in complete absence of
jurisdiction: "Where there is clearlyno jurisdiction over the subject-matter any authority is a usurped
authority, and for the exercise of such authority,when the want of jurisdiction is known to the judge,
no excuse is permissible." Again: "Thus if a probate court, invested only with authority over wills and
the settlement of estates of deceased persons should try parties for public offenses, jurisdiction over
the subject of offenses being entirely wanting in the court, and this being necessarily known to its
judge, his commission would afford no protection to him in the exercise of the usurped authority."
These portions of the sentence quoted which I have italicized contain the essence of the whole
matter of judicial liability where there is a lack or failure of jurisdiction. I am of the opinion that those
expressions indicate necessarily and decisively that the principle which I have herein laid down as
the one logically and inevitably governing judicial liability is the true and the only one whose results
are not absurdities in many cases. Otherwise those expressions are wholly meaningless and the
suggestions they contain valueless. If the jurisdiction is the real test of liability, if a judge acting
wholly and completely without jurisdiction is necessarily liable, as contend text writers and courts
generally, what difference does it make whether the want of jurisdiction "clearly" appear or not. If
entire absence of jurisdiction is decisive, what does it signify whether or not "the want of jurisdiction
is known to the judge." If the crucial test is jurisdiction, what means the phrase "and this (entire want
of jurisdiction) being necessarily known to its judge?" If these expressions mean nothing, then there
is an end of the matter so far as the case we are discussing is concerned. But if they mean anything

at all commensurate with the signification which would ordinarily be given to the words which
compose them, then they destroy utterly the doctrine that jurisdiction is the test of judicial liability.
The word "clearly" refers either to the judge himself or to some one or something apart from him. If
to the judge, then the want of jurisdiction must be clear to him before he can be liable. But if his want
of jurisdiction is clear to him and he still goes forward with the cause, he must be actuated by a
motive other than his belief that he is within his jurisdiction. If, therefore, "clearly" refers to the judge
himself, to his subjective condition, then it can have no relation or materiality except to disclose the
motive which removed him. But motive has been expressly held by this very case to be wholly
immaterial in determining a judge's civil liability. Motive is merely a state of mind. If the motive can
have no influence on the matter, then it is of no consequence whatever what the state of mind may
be. This is in perfect accord with the universal doctrine that a one man's rights can not be made to
depend on another man's mind. If A illegally injures B, B's right of action can not be dependent on A's
state of mind when he caused the injury. Such state of mind might have some influence on the
amount of damages or the kind of action to be brought, but, never on the right of action. So the right
of action against a judge never can be made to depend on the state of mind of the judge who causes
the injury, but solely upon the nature of the question determined. Rights are children of the law, not
of man's fancy.
If, however, the word "clearly" refers to some one or something apart from the judge himself, then
the expression in which it occurs has meaning and significance. If the want of jurisdiction is so
"clear," not to that judge in particular, but to a judge having the average qualifications for the position
occupied by the offending judge, or a similar judicial position, that whether or not there is jurisdiction
is not a question at all, then we can understand what was intended by the use of the word "clearly."
The whole doctrine that the civil liability of a judge depends upon jurisdiction alone, as stated by text
writers and enforced by most courts, is utterly at variance with the conception that the state of mind
of the offending judge should have any influence on his liability. Moreover, the very case I am
discussing holds clearly that public policy requires that the motives of a judge in deciding a cause,
his state of mind accompanying in determining his liability. We find in that case the following:
Yet it is precisely in this class of cases that the losing party feels most keenly the decision
against him, and most readily accepts anything but the soundness of the decision in
explanation of the action of the judge. Just in proportion to the strength of his conviction of
the correctness of his own view of the case is he apt to complaint of the judgment against
him, and from complaints of the judgment to pass to the ascription of improper motives to the
judge. When the controversy involves questions affecting large amounts of property or
relates to a matter of general public concern, touches the interests of numerous parties, the
disappointment occasioned by an adverse decision often finds vent in imputations of this
character, and from the imperfections of human nature this is hardly a subject of wonder. If
civil actions could be maintained in such cases against the judge, because the losing party
should see fit to allege in his complaint that the acts of the judge were done with partiality, or
maliciously, or corruptly, the protection essential to judicial independence would be entirely
swept away. Few persons sufficiently irritated to institute an action against a judge for his
judicial acts would hesitate to ascribe any character to the acts which would be essential to
the maintenance of the action.
Motive, as he used, can not be restricted to a state of mind morally wrong. It includes also a state of
mind legallywrong. A judge, knowing full well that he is absolutely without jurisdiction, who, in spite of
the parties in complete violation of the law, may be impelled thus to violate the law by an honest
belief that he is thereby doing justice between the parties; but his motives are nevertheless tainted
with illegality, and, even though they are not morally wrong, they fall within the definition of "motives"
as that word is used in the decision I am discussing. But even though I be wrong in that contention, it
nevertheless is certain that if a corrupt motive can not be influential in determining the liability of a
judge, one not corrupt can not be.

It, therefore, seems to me clear that the word "clearly" as used in the case under discussion does
not refer to the state of mind of the offending judge, but rather to the nature of the question which he
determines; not to the way the judge himself views the question, but to the way it would be viewed
by the standard judge, the average judge, as I have heretofore stated.
What I have said of the word "clearly," as it appears in the case under discussion, is equally
applicable to the other expressions quoted therefrom. The phrase "when the want of jurisdiction is
known to the judge" presents precisely the same questions. As I have said, the very case in which
that expressions occurs to holds unequivocally that the motives which move the judge to action are
not permitted to weigh for or against him, even though they are corrupt and immoral. It can not be
possible, then, that any other motive, especially an honest one, can be permitted to affect his case.
The conclusion is, therefore, unavoidable that the phrase "when the want of jurisdiction is known to
the judge" does not refer to the actual state of the mind of the judge but to the state of mind which he
ought to be in and which he would have been in if he had taken into consideration properly the
nature of the question before him. In other words, he will be deemed to have been in the same state
of mind as the ideal, the standard judge of whom we have spoken would have been had he had the
same question before him. We have here somewhat the idea which is predominant in the theory of
negligence embodied in the question, "Did he use the care which an ordinary careful and prudent an
would have used under the same circumstances?" This means simply that everything depends, in
the last analysis, on the nature of the question with which the judge was dealing when he committed
the error made the basis of the action against him.
Lastly, as to the phrase " and this [the want of jurisdiction] being necessarily known to the judge."
The word "necessarily" seems to me to be absolutely conclusive as to the intention of the Supreme
Court of the] United States in the case under discussion relative to the doctrine of judicial liability in
cases involving a failure or want of jurisdiction. This expression, it will be remembered, was used in
connection with the illustration of a probate court assuming criminal jurisdiction. Why, in such
illustration, should the want of jurisdiction be "necessarily" known to the judge? No reason can be
given except that it was a perfectly plain case, and, in consequence, he was bound to know it,
whether he actually did or not. In other words, the question which he was called upon to decide was
so plain and so clear that the standard judge would not have regarded it as a question at all; i.e.,
there was really only one side to it it could be decided in only one way. Therefore, the judge was
bound to know it; it was necessarily known to him. The nature of the question was such that he was
estopped from denying knowledge. Thus are we brought back again to the proposition I have so
often asserted, that the liability of the judge depends wholly upon the nature of the question in
determination of which the error was made.
It appears to me to be evident, therefore, that the case of Bradley vs. Fisher is an authority, so far as
dictum can be such, in support of the doctrine I am advocating, both affirmatively and negatively.
Affirmatively, because it asserts the doctrine that the nature of the question controls. Negatively,
because it also asserts that the motives which induced the judge to the error which is the basis of his
liability are wholly immaterial in establishing that liability. This necessarily means, as we have
already seen, that the state of mind of the judge by which the error was induced, of whatever kind it
may be, good, bad, or indifferent, is entirely without significance as an element of his liability. This is
all I set out to establish. (See Bishop Non-Contract Law, par. 783; Root vs. Ross, 72 Northwestern,
1022; Grove vs. Van Duyn, 15 Vroom, 654.) Section 9 of the Code of Civil Procedure relating to the
liability of judges is simple declaratory of the law as heretofore set forth.
The discussion up to this point has proceeded upon the theory that the Governor-General acted
wholly without power, authority, or jurisdiction. I here note by way of suggestion merely that it should
be remembered that the Governor-General, in performing the acts complained of, was operating in a

field distinctively his own, namely, that of the execution of the law. Of that branch of the government
he is the head. Over that field has general authority and jurisdiction. Taking for the moment the
position of those who maintain that there is difference between excess of jurisdiction and an entire
failure of jurisdiction, may not his act of expulsion have been in excess of jurisdiction rather than in
complete failure thereof? I do not now stop to argue this question, inasmuch as I have already
presented the matter fully from the other point of view.
I have treated thus at length the liability of judges for analogical purposes, founding myself not only
upon the reason and principle involved, but also upon the case of Spalding vs. Vilas (161 U. S.,
483), in which the opinion discussed at length the civil liability of judges, using the principles there
applied of the defendant, who was postmaster-general, and who had been sued for damages
alleged to have been caused by certain acts performed by him in the execution of what he believed
to be the duties of his office. This is precisely what I have done in the case at bar.
So far I have discussed the liability of the Governor-General for the acts complained of, viewing the
acts as springing from the determination of questions judicial in their nature. I now propose to treat
the question at bar as arising from determination made and acts performed by the Governor-General
in discharging the duties laid upon him as Chief Executive of the Government.
The immunity of the judges from personal liability for damages resulting from their wrongful acts
while in the discharge of the duties of the office rests wholly in public policy. The reasons for such
immunity are nowhere better stated than in Mr. Cooley's work on Torts. He says:
1. The necessary result of the liability would be to occupy the judge's time and mind with the
defense of his own interests, when he should be giving them up wholly to his public duties,
thereby defeating, to some extent, the very purpose for which his office was created.
2. The effect of putting the judge on his defense as a wrongdoer necessarily is to lower the
estimation in which his office is held by the public, and any adjudication against him lessens
the weight of his subsequent decisions. This of itself is a serious evil, affecting the whole
community; for the confidence and respect of the people for the government will always
repose most securely on the judicial authority when it is esteemed, and must always be
unstable and unreliable when this is not respected. If the judiciary is unjustly assailed in the
public press, the wise judge refuses to put himself in position of defendant by responding,
but he leaves the tempest to rage an awakened public sentiments silences his detractors.
But if he is forced upon his defense, as was well said in an early case, it would tend to the
scandal and subversion of all justice, and those who are most sincere would not be free from
continual calumniation's.
3. The civil responsibility of the judge would often be an incentive to dishonest instead of
honest judgments, and would invite him to consult public opinion and public prejudices,]
when he ought to be wholly above and uninfluenced by them. As every suit against him
would be to some extent an appeal to popular feeling, a judge, caring specially for his own
protection, rather than for the cause of justice, could not well resist a leaning adverse to the
parties against whom the popular passion or prejudice for the time being was running, and
he would thus become a prosecutor in the cases where he ought to be protector, and might
count with confidence on escaping responsibility in the very cases in which he ought to be
punished. Of what avail, for example, could the civil liability of the judge have been to the
victims of the brutality of Jeffreys if, while he was at the height of his power and influence
and was wreaking his brutal passions upon them amidst the applause of crowded court
rooms, these victims had demanded redress against him at the hands of any other court and
jury of the realm?

4. Such civil responsibility would constitute a serious obstruction to justice, in that it would
render essential a large increase in the judicial force, not only as it would multiply litigation,
but as it would open each case to endless controversy. This of itself would be an incalculable
evil. The interest of the public in general rules and in settled order is vastly greater than in
any results which only affect individual; and it is more important that their action shall tend to
the peace and quiet of society than that, at the expense of order, and after many suits, they
shall finally punish an officer with damages for his misconduct. And it is to be borne in mind
that if one judge can be tried for his judgment, the one who presides on the trial may also be
tried for his, and thus the process may go on until it becomes intolerable.
5. But where the judge is really deserving of condemnation a prosecution at the instance of
the State is a much more effectual method of bringing him to account than a private suit. A
want of integrity, a failure to apply his judgment to the case before him, a reckless or
malicious disposition to delay or defeat justice may exist and be perfectly capable of being
shown, and yet not be made so apparent by the facts of any particular case that in a trial
confined to those fact he would be condemned. It may require the facts of many cases to
established the fault; it may be necessary to show the official action for years. Where an
officer is impeached, the whole official career is or may be gone into; in that case one
delinquency after another is perhaps shown each tends to characterize the other, and the
whole will enable the triers to form a just opinion of the official integrity. But in a private suit
the party would be confined to the facts of his own case. It is against inflexible rules that one
man should be allowed to base his recovery for his own benefit on a wrong done to another;
and could it be permitted, the person first wronged, and whose right to redress would be as
complete as any, would lose this advantage by the very fact that he stood first in the line of
injured persons.
Whenever, therefore, the State confers judicial powers upon an individual, it confers them
with full immunity from private suits. In effect, the State says to the officers that these duties
are confided to his judgment; that he is to exercise his judgment fully, freely, and without
favor, and he may exercise it without fear; that the duties concern individuals, but they
concern more especially of the welfare of the State and the peace and happiness of society;
that if he shall fail in the faithful discharge of them he shall be called to account as a criminal;
but that in order that he may not be annoyed, disturbed, and impeded in the performance of
these high functions, a dissatisfied individual shall not be suffered to a call in question his
official action in a suit for damages. This is what the State, speaking by the month of
common law says to the judicial officer. (Cooley on Torts, 2nd ed., pp. 475-478.)
The following cases are also in point: Bradley vs. Fisher (13 Wall., 335), Spalding vs. Vilas (161 U.
S., 483), Pratt vs. Gardner (2 Cush., 63), Yates vs. Lansing (5 Johns., 282, 291), Fray vs.
Blackburn (3 B. and S., 576), Scott vs. Stansfields (L. R., 3 Exch., 220).
It needs no use of imagination to permit the assertion that the execution of the law is a matter fully
as important as the creation or determination of the law. One branch of the government is, largely
speaking, as necessary and important as the other. The system of representative government is
founded in that proposition. The three departments are not only coordinate; they are co-equal; they
are coimportant. Whatever affects adversely the efficiency of one affects adversely the efficiency of
all. One is quite useless without the other. The legislature is supremer than a king in the making of
laws, but if they remain unexecuted they are but dry thunder that rolls and growls along the sky but
disappoints the husbandman in a thousand thirsty fields. The judiciary is an invincible and irresistible
giant in promulgating its decrees, but a day-old infant in their execution.

Whatever impedes or prevents the free and unconstrained activity of a governmental department,
within its proper limits, tends to evil results. The civil responsibility of the chief executive would
produce in him an inevitable tendency, insidious in character, constant in pressure, certain in results,
to protect himself by following lines of least resistance and to temper the force of his executive arm
in places and upon occasions where there was strong opposition, either by powerful and influential
persons or by great federated interests, and where public prejudice was intense, active, and
threatening. Personal interest is a force which in the long run is apt to drive as it will. Reputation,
pride, riches, family, home, all endangered in many respects by personal responsibility, are
influences which grip and cling with threw of steel and exert a power upon men almost incalculable
in its extent, almost certain in its results. To allow these well-nigh irresistible forces to exercise to the
full their effects upon the coordinate branches of the government, through men who, for the moment,
are, in a sense, the state, is to drive a blow at the very vitals of impartial government.
Anyone may bring an action. It needs no merits, no real grounds, no just cause, no expectation of
winning, tocommence suit. Any person who feels himself aggrieved by any action of the chief
executive, whether he have the slightest grounds therefor or not, may begin suit. Or, not particularly
desiring to bring an action upon his own initiative, he may be induced thereto by any evil-disposed
person, any political rival, party antagonist, or personal enemy of the chief executive, or by any
person desiring for any reason to see his administration hampered and brought into contempt by
public display of the alleged inefficiency of the chief functionary. For the purposes in view, it is almost
immaterial whether or not the action succeeds. Substantially the same results are attained by
commencing the action and carrying it haltingly to its final determination. A person who brings an
action for the reasons mentioned, or his inducers, will always be fertile and conscienceless in the
method of conducting it. Every means will be employed to make it sensational. Every effort will be
used to bring the salient features of the plaintiff's claim before the public. Opposition papers will
deem it strategy to lend their ready columns to everything that reflects adversely on the defendant.
Startling headlines will appear in every issue inviting all people to read the charges against their
chief executive. Occasions for delay will be found or made. The case will drag along through months
of calumny, vituperation, and sensation until the people, nauseated and weary of the noise and the
spectacle, cry for riddance. This is precisely the result desired by the plaintiff. The matter can be
stopped and quitted only by the removal of the offending official. This would usually follow in one
way or another.
Moreover, the bringing of an action against him because of his act in relation to a given matter would
naturally prevent his taking further or other steps against other person similarly circumstance until
the final determination of the pending action. Respect for law and the judiciary, as well as his own
protection, would probably require this. No words are necessary to indicate the intolerable condition
thus resulting from general civil responsibility. Action upon important matters of state delayed; the
time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the State and for the office he occupies; a tendency to unrest
and disorder; resulting, in a way, in a distrust as to the integrity of government itself.
Although the three departments of the government are coordinate and equal of importance in the
administration of governmental affairs, nevertheless, it is generally recognized that, in many ways,
and at least popularly, the chief executive is the first man in the state. He is regarded by the public
generally as the official who most nearly represents the people, who most perfectly epitomozes the
government and the state. An assault upon him is, popularly speaking at least, an assault upon the
people. An offense against the state. Generally speaking, the government is good or bad as he is
good or bad. To degrade and humiliate him is to degrade and humiliate the government. To put him
on trial as a wrongdoer is to put on trial government itself. To bring him publicly to the bar is to breed
in the public mind and unwholesome disrespect not only for his person but for his office as well;
while a decision against him is, popularly speaking acts as unworthy of consideration, but also a
partial demonstration of the inefficiency of government itself. As the state may not be held liable, and

by such process its sovereignty weakened, without express provision of law, so the person most
perfectly its incarnation should not be subjected civilly to personal liability for damages resulting from
the performance of official acts except by law equally express.
While the three coordinate governmental departments are mutually dependent, each being unable to
perform its functions without the other, they are, nevertheless, paradoxical as it may seem, wholly
independent of each other, except for what is known as the checks and balances of government.
That is to say, one department may not control or interfere in any way with another in the exercise of
its functions. This, of course, is fundamental. The legislature may neither dictate the courts what
judgments they shall render, nor modify, alter or set aside such judgments after they have been
promulgated. The legislature can not be permitted to override executive action nor interfere with the
performance of those duties laid by the constitution upon the chief executive. In the same way, the
courts have no power to control or interfere in any way with the legislature in the making of laws or in
taking or refraining from taking any action whatever, however clear may be its constitutional duty to
take or not to take such action. The legislature may refuse to pass the laws which are absolutely
necessary for the preservation of society, thus clearly and openly violating and disregarding the trust
reposed in it, and still neither the judicial nor the executive branch can interfere. The courts may
openly and flagrantly violate their duty, render the most partial, unjust, illegal, and even corrupt
judgments, thereby openly prostituting their proper functions, yet neither the legislature nor the
executive department can interfere.
Moreover, except as hereinbefore indicated, neither the members of the legislature nor the judiciary
are subject to personal liability for damages either by their failure to perform their duties or for their
open defiance of the plain command of the constitution to perform them.
The power to interfere is the power to control. The power to control is the power to abrogate. Upon
what reasons, then, may we base the right of the courts to interfere with the executive branch of the
government by taking cognizance of a personal action against the chief executive for damages
resulting from an official act; for, to take jurisdiction of such an action is one of the surest methods of
controlling his action. We have already seen the dangers which lurk in the unhampered privilege of
personal suit against the chief executive from the viewpoint of the effects which it would have on him
personally and, therefore, on the general enforcement of the law. Another question closely akin to
this is that of the effect on the independence of that branch of the government. In that argument we
touched the results of such responsibility from the viewpoint of the influence wielded by the person
who complained by suit against the act of the chief executive. Here we refer to it from the standpoint
of the force, the power, the instrumentality by which the complaint is made effective. Every argument
advanced against the civil responsibility of the chief executive founded in the beneful results to the
public welfare which such responsibility would inevitably carry, is applicable to the proposition that
the court may take cognizance of personal actions against him for damages resulting from his official
acts. If the courts may require the chief executive to pay a sum of money every time they believe he
has committed an error in the discharge of his official duty which prejudices any citizen, they hold
such a grip upon the vitals of the executive branch of the government that they may swerve it from
the even tenor of its course or thwart altogether the purpose of its creation. If such responsibility
would prove harmful by reason of the influence thus given to persons or interests involved in the
execution of the law, how much more disastrous would be the results of such responsibility which
would normally flow from the power which the courts might wield, that power which alone makes
effective the influence of the persons or interest referred to. not only determining their remedy and
adjudicating their rights, but also fixing the amount of damages which the infringement of those
rights has occasioned. That the courts may declare a law passed by the legislature unconstitutional
and void, or an act of the executive unauthorized and illegal; or that the legislature may curtail within
limits the jurisdiction and power of the courts, or restrict, in a measure, the scope of executive action;
or that the executive may, by his veto, render null and ineffective the acts of legislature and thus
effectually thwart the purposes of the majority, is no reply to the argument presented. These are

merely the checks and balances made by the people through the constitution inherent in the form of
government for its preservation as an effective institution. Without them the government would
collapse like a house of cards. In spite of these checks and balances, if not by reason of them, the
fundamental departments of the government are independent of each other in the truest sense of the
word. The quality of government consists in their remaining so.
It must not be forgotten that there is a great difference, intrinsically and in result, between the power
to declare the executed acts of the chief executive illegal and void, and the power to hold him
personally responsible in damages resulting from such acts. In the one case the results are. in a real
sense, entirely impersonal. No evil to him directly flows from such acts. He is secure in his person
and estate. In the other, he is directly involved personally in a high and effective responsibility. His
person and estate are alike in danger. In the one case he acts freely and fearlessly without fear of
consequences. In the other he proceeds with fear and trembling, not knowing, and being wholly
unable to know, when he will be called upon to pay heavy damages to some person whom he has
unconsciously injured.
The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority
to touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and restrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either, that a person injured by
the executive authority by an act unjustifiable under the law has no remedy, but must submit in
silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts
and the members of the Legislature, may not be personally mulcted in civil damages for the
consequences of an executed in the performance of his official duties. The judiciary has full power
to, and will, when the matter is properly presented to it and the occasion justly warrants it, declare an
act of the Governor-General illegal and void and place as nearly as possible in status quo any
person who has been deprived of his liberty or his property by such act. This remedy is assured
every person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can not do is
to mulct the Governor-General personally in damages which result from the performance of his
official duty, any more than it can a member of the Philippine Commission or the Philippine
Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be personally sued at
all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears
from the discussion heretofore had, particularly that portion which touched the liability of judges and
drew an analogy between such liability and that of the Governor-General, that the latter is liable
when he acts in a case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act. What is held here is that
he will be protected from personal liability for damages not only when he acts within his authority, but
also when he is without authority, provided he actually used discretion and judgment, that is, the
judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to
protection in determining the question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men, reasonably qualified for that
position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two
such men could not honestly differ over its determination. In such a case, he acts, not as GovernorGeneral, but as a private individual, and, as such, must answer for the consequences of his act.
The attorneys for the defendant in the action before us earnestly contend that even though the
Governor-General is not liable, his agents, Harding and Trowbridge, are. In support of that
contention they cite numerous authorities. One of those is Little vs. Barreme (2 Cranch, 170). This

was a case in which obeyed certain instructions emanating from the President of the United States
which were not strictly warranted by the law under which said instructions were given; and had
seized a ship not subject to seizure under the law. The attorneys for the defendant cite that portion of
the opinion of Mr. Chief Justice Marshall in that case which reads as follows:
These orders given by the executive under the construction of the Act of Congress made by
the department to which its execution was assigned, enjoined the seizure of American
vessels sailing from a French port. Is the officer who obeys them liable for damages
sustained by this misconstruction of the Act, or will his orders excuse him? If his instructions
afford him no protection, then the law must take its course, and he must pay such damages
as are legally awarded against him; if they excuse an act not otherwise excusable, it would
then be necessary to inquire whether this is a case in which the probable cause which
existed to induce a suspicion that the vessel was American, would excuse the captor from
damages when the vessel appeared in fact to be neutral.
I confess the first bias of my mind was very strong in favor of the opinion that though the
instructions of the executive could not give a right, they might yet excuse from damages. I
was much inclined to think that a distinction ought to be taken between the acts of civil and
those of military officers; and between proceedings within the body of the country and those
on the high seas. That implicit obedience which military men usually pay to the orders of their
superiors which indeed is indispensably necessary to every military system, appeared to me
strongly to imply the principle that those orders, if not to perform a prohibited act, ought to
justify the person whose general duty it is to obey them, and who is placed by the laws of his
country in a situation which in general requires, that he should obey them. I was strongly
inclined to think that where, in consequence of orders from the legitimate authority, a vessel
is seized with pure intention, the claim of the injured party for damages would be against that
government from which the orders proceeded, and would be a proper subject for negotiation.
But I have been convinced that I was mistaken, and I have receded from this first opinion, I
acquiesce in that of my brethren, which is, that the instructions can not change the nature of
the transaction, or legalize an act which, without those instructions, would have been a plain
trespass.
The case cited is distinguished from the case at bar in that in that case the duty to exercise judgment
as to what vessels should be seized was placed, by express provisions of the law, upon the
commander of the American warship. No duty whatever was placed upon the President of the United
States. Under the law he might, if he chose, give instructions to commanders of American war
vessels to subject to examination any ship or vessel of the United Stated on the high seas which
there might be reason to suspect was engaged in commerce contrary to the tenor of the law; but the
duty of action, using judgment and discretion as to whether or not a given ship was susceptible of
seizure under said law, was placed wholly upon the commander o the vessel. This appears from
reading the Act. Section 5 thereof provides as follows:
That it shall be lawful for the President of the United States to give instructions to the
commanders of the public armed ships of the United States to stop and examine any ship or
vessel of the United States on the high seas which there may be reason to suspect to be
engaged in any traffic or commerce contrary to the true tenor hereof; and if, upon
examination, it shall appear that such ship or vessel is bound sailing to any port or place
within the territory of the French Republic, or her dependencies, contrary to the intent of this
Act, it shall be the duty of the commander of such public armed vessel to seize every ship or
vessel engaged in such illicit commerce, and send the same to the nearest port in the United
States; and every such ship or vessel, thus bound or sailing to any such port or place, shall,

upon due proof thereof, be liable to the like penalties and forfeitures as are provided in and
by the first section of this Act.
Under the law as quoted, the commander was acting for himself, upon his own responsibility. He has
no authority whatever from the President of the United States to act in a given way, or at a particular
time, or upon a given ship, or upon a given set of facts. He was controlled entirely by the provisions
of the law, not by the orders or instructions of the President. The source of his authority was the Act,
not the President. He was acting for himself, as principal, upon whom lay all of the obligation and all
of the responsibility and whose duties were clearly specified in the Act, and not as agent or servant
of the President. He was acting in the performance of his own duty, and not in the performance of a
duty laid upon the President of the United States.
In the case at bar no duty whatever was laid upon Harding or Trowbridge. The only duty, if there was
a duty connection with the act performed, was laid upon the Governor-General personally. If the law
was as the supposed it to be, it was his duty and not their duty which they were performing. They
acted not as principals upon whom an obligation was directly or indirectly laid by law. They were at
the time merely the hands of the Governor-General.
The case of Trace vs. Swartwout (10 Peters, 80), is distinguishable upon the same grounds.
In the case of Marbury vs. Madison (1 Cranch, 137), the court said (p. 164):
By the constitution of the United States the President is invested with certain important
political powers, in the exercise of which he is use to his own discretion, and is accountable
only to his country in his political character, and to his own conscience. To aid him in the
performance of these duties, he is authorized to appoint certain officers, who act by his
authority, and in conformity with his orders. In such cases, their acts are his acts; and
whatever opinion may be entertained of the manner in which executive discretion may be
used, still there exists, and can exist, no power to control that discretion. The subjects are
political: they respect the nation, not individual rights, and being entrusted to the executive,
the decision of the executive is conclusive. The application of this remark will be received, by
adverting to the Act of Congress for establishing the department of foreign affairs. This
officer, as his duties were prescribed by that Act, is to conform precisely to the will of the
President: he is the mere organ by whom that will is communicated. The acts of such an
officer, as an officer, can never be examinable by the courts. But when the legislature
proceeds to impose on that officer other duties; when he is directed peremptorily to perform
certain acts; when the rights of individuals are dependent on the performance of those acts;
he is so far his conduct; and can not, at his discretion, sport away the vested rights of others.
I do not discuss here the other citations made by the attorneys for the defendant for the reason that
those authorities exclusively to the liability of executive officers of the Government occupying
subordinate positions, who were creatures of the legislature and not of the constitution, and whose
duties are specified by the law under which they acted and were by nature different from those laid
upon the chief executive. As we have distinctly stated heretofore, the rule of liability, herein set forth,
applicable to the chief executive is not applied in this opinion to those occupying subordinate
positions. The principle of the nonliability of the chief executive rests in public policy. It is not held in
this case that public policy reaches persons other than those who, in the highest sense, constitute
the coordinate departments of the government. That question is not involved and is not discussed.
I have looked in vain for any logical reason which requires us to hold Harding and Trowbridge liable
when the person whose act they were in reality performing is himself free from responsibility.

G.R. No. L-6157

July 30, 19101

W. CAMERON FORBES, J. E. HARDING, and C. R. TROWBRIDGE, plaintiffs,

vs.
CHUOCO TIACO (alias CHOA TEA) and A. S. CROSSFIELD, defendants.
W. A. Kincaid, for plaintiffs.
O'Brien and DeWitt and Hartford Beaumont, for defendant Chuoco Tiaco.
JOHNSON, J.:
An original action commenced in this court to secure a writ of prohibition against the Hon. A. S.
Crossfield, as one of the judges of the Court of First Instance of the city of Manila, to prohibit him
from taking or continuing jurisdiction in a certain case commenced and pending before him, in which
Chuoco Tiaco (alias Choa Tea) (respondent herein) is plaintiff, and W. Cameron Forbes, J. E.
Harding, and C. R. Trowbridge (petitioners herein) are defendants.
Upon the filing of the petition in this court, Mr. Justice Trent granted a preliminary injunction
restraining the said lower court from proceeding in said cause until the question could be heard and
passed upon by the Supreme court.
The questions presented by this action are so important and the result of the conclusions may be so
far reaching that we deem it advisable to make a full statement of all of the facts presented here for
consideration. These facts may be more accurately gathered from the pleadings. They are as
follows:
FACTS.
SECOND AMENDED COMPLAINT.
The plaintiffs set forth:
I. That all the parties in this case reside in the city of Manila, Philippine Islands.
II. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands
and that the plaintiff J. E. Harding and C. R. Trowbridge are, respectively, chief of police and
chief of the secret service of the city of Manila.
III. That the defendant A. S. Crossfield is one of the judges of the Court of First Instance of
the city of Manila.
IV. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality
and a subject of the Chinese Empire.
V. That on the 1st of April, 1910, the defendant Chuoco Tiaco (alias Choa Tea) filed a suit in
the Court of First Instance of the city of Manila against the plaintiffs in which substantially the
following allegations and petition were made, alleging that on the 19th of August, 1909,
under the orders of the said W. Cameron Forbes, Governor-General of the Philippine
Islands, he was deported therefrom and sent to Amoy, China, by the aforesaid J. E. Harding
and C. R. Trowbridge, chiefs, as above stated, of the police and of the secret service,
respectively, of the city of Manila, and that having been able to return to these Islands he

feared, as it was threatened, that he should be again deported by the said defendants,
concluding with a petition that a preliminary injunction should be issued against the plaintiffs
in this case prohibiting them from deporting the defendant, Chuoco Tiaco (alias Choa Tea),
and that they be sentenced to pay him P20,000 as an indemnity.
VI. It is true that the said defendant Chuoco Tiaco (alias Choa Tea), was, with eleven others
or his nationality, expelled from these Islands and returned to China by the plaintiffs J. E.
Harding and C. R. Trowbridge, under the orders of the plaintiff W. Cameron Forbes, on the
date mentioned in Paragraph V of this complaint, but the said expulsion was carried out in
the public interest of the Government and at the request of the proper representative of the
Chinese Government in these Islands, to wit, the consul-general of said country, the said W.
Cameron Forbes acting in his official capacity as such Governor-General, the act performed
by this plaintiff being one of the Government itself and which the said plaintiff immediately
reported to the Secretary of War.
VII. The said complaint having been filed with the defendant A. S. Crossfield, he, granting the
petition, issued against the plaintiffs the injunction requested, prohibiting them from deporting
the defendant Chuoco Tiaco (alias Choa Tea).
VIII. The plaintiffs having been summoned in the matter of the said complaint, filed a
demurrer against the same and presented a motion asking that the injunction be dissolved,
the grounds of the demurrer being that the facts set out in the complaint did not constitute a
motive of action, and that the latter was one in which the court lacked jurisdiction to issue
such an injunction against the plaintiffs for the reasons set out in the complaint;
notwithstanding which, the defendant A. S. Crossfield overruled the demurrer and disallowed
the motion, leaving the complaint and the injunction standing, in proof of which the plaintiffs
attach a certified copy by the clerk of the Court of First Instance of the city of Manila of all the
proceedings in said case, except the summons and notifications, marking said copy "Exhibit
A" of this complaint. (See below.)
IX. The Court of First Instance, according to the facts related in the complaint, lacks
jurisdiction in the matter, since the power to deport foreign subjects of the Chinese Empire is
a private one of the Governor-General of these Islands, and the defendant A. S. Crossfield
exceeded these authority by trying the case and issuing the injunction and refusing to allow
the demurrer and motion for the dismissal of the complaint and the dissolution of the
injunction.
Therefore the plaintiffs pray the court:
(a) That an injunction immediately issue against the defendant A. S. Crossfield ordering him
to discontinue the trial of said cause until further orders from this court;
(b) That the defendants being the summoned in accordance with law, a prohibitive order
issue against the said defendant A. S. Crossfield, restraining him from assuming jurisdiction
in said case and ordering him to dismiss the same and cease from the trial thereof;
(c) Finally, that the plaintiffs be granted such other and further relief to which they may be
entitled according to the facts, and that they may be allowed the costs of the trial.
Manila, July 9, 1910.

IGNACIO VILLAMOR,
Attorney-General.
W. A. KINCAID,
THOMAS L. HARTIGAN,
By W. A, KINCAID,
Attorneys for the plaintiffs.
UNITED STATES OF AMERICA,
Philippine Islands, city of Manila, ss:
W. A. Kincaid, being first duly sworn, states that he is one of the attorneys for the plaintiffs in
the preceding second amended complaint, and that all the facts alleged therein are true, to
the best of his knowledge and belief.
(Signed) W. A. KINCAID.
Subscribed and sworn to before me this 9th day of July, 1910. Cedula No. F. 1904, issued in
Manila on January 3, 1910.
(Signed) IGNACIO DE ICAZA,
1910.)

Notary Public. (My appointment ends Dec. 31,

We have received a copy of the above.

(Signed) O'BRIEN AND DEWITT,
HARTFORD BEAUMONT,
Attorneys for defendants.
EXHIBIT A.
[United States of America, Philippine Islands. In the Court of First Instance of the city of
Manila. No. 7740. Chuoco Tiaco (alias Choa Tea), plaintiff, vs. W. Cameron Forbes, Charles
R. Trowbridge, and J. E. Harding, defendants.]
COMPLAINT.
Comes now the plaintiff, by his undersigned attorneys, and for the cause of action alleges:
First. That the plaintiff is and has been for the last thirty-five years a resident of the city of
Manila, Philippine Islands.

Second. That the defendant W. Cameron Forbes is the Governor-General of the Philippine
islands and resides in the municipality of Baguio, Province of Benguet, Philippine Islands;
that the defendant Charles R. Trowbridge is chief of the secret service of the city of Manila,
and that the defendant J. E. Harding is chief of police of the city of Manila, and that both of
said defendants reside in the said city of Manila, Philippine Islands.
Third. That the said plaintiff is a Chinese person and is lawfully a resident of the Philippine
Islands, his right to be and remain therein having been duly established in accordance with
law by the Insular customs and immigration authorities.
Fourth. That on or about the 19th day of August, 1909, the defendants herein, Charles R.
Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the
other defendant herein, the said W. Cameron Forbes, and acting under the direction of the
said defendant, W. Charles Forbes, did unlawfully seize and carry on board the steamer
Yuensang the said plaintiff herein against his will, with the intent by said force to unlawfully
deport and expel the said plaintiff herein from the Philippine Islands against the will of the
said plaintiff herein.
Fifth. That the said defendants herein and each of them, after forcibly placing the said
plaintiff herein upon the said streamer Yuensang, as hereinbefore alleged, did cause the said
steamer Yuensang to take and carry away the plaintiff herein from the Philippine Islands to
the port of Amoy, in the Empire of China.
Sixth. That the said defendants herein, unlawfully conspiring and conniving together, the said
Charles R. Trowbridge and the said J. E. Harding, acting under the direction of the said
defendant, W. Cameron Forbes, did forcibly prevent the plaintiff herein from returning to
these Philippine Islands until the 29th day of March, 1910.
Seventh. That the defendants herein, by their unlawful acts hereinbefore alleged, have
damaged the plaintiff herein in the sum of twenty thousand pesos (P20,000) Philippine
currency.
SECOND CAUSE OF ACTION.
As a second cause of action the plaintiff alleges:
First. He repeats and reiterates each and every allegation contained in the first (1st) and
second (2nd) paragraphs of the first cause of action, and hereby makes the said paragraphs
a part of this cause of action.
Second. That the said plaintiff herein is a Chinese person who is and has been a resident of
the Philippine Islands for the last twenty-nine years, he having duly established his right to
be and remain in the Philippine Islands since the American occupation thereof in accordance
with law.
Third. That the said plaintiff herein, during his residence in these Islands, has acquired and is
actually the owner, or part owner, of property and business interests and enterprises of great
value within the Philippine Islands, and that said property and business interests and
enterprises require the personal presence of the plaintiff herein in the Philippine Islands for
the proper management and supervision and preservation thereof.

Fourth. That the plaintiff has a family in the Philippine Islands and that said family is
dependent upon the said plaintiff for support and that it is impossible for the said plaintiff to
give the said family that support unless he, the said plaintiff, is actually present within the
Philippine Islands.
Fifth. That on or about the 19th day of August, 1909, the defendants herein, Charles R.
Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the
other defendant herein, the said W. Cameron Forbes, and acting under the direction of the
said defendant, W. Cameron Forbes, did unlawfully seize and carry on board the
steamer Yuensang the said plaintiff herein with the intent by said force to unlawfully deport
and expel the said plaintiff herein from the Philippine Islands against the will of the said
plaintiff herein.
Sixth. That, notwithstanding the efforts of the said defendants herein to forcibly and
unlawfully prevent the said plaintiff herein from returning to the Philippine Islands, the said
plaintiff here in returned to the said city of Manila, Philippine Islands, on the 29th day of
March, 1910, and was duly landed by the customs and immigration authorities in accordance
with law, after having duly established his right to be and to remain herein.
Seventh. That since the arrival of the said plaintiff herein in the Philippine Islands on the 29th
day of March, 1910, as hereinbefore alleged, the said defendants herein unlawfully and
fraudulently conniving and conspiring together, the said J. E. harding and Charles R.
Trowbridge, acting under the orders and directions of the said defendant, W. Cameron
Forbes, have threatened, unlawfully, forcibly, and against the will of the plaintiff herein, to
expel and deport plaintiff herein from the Philippine Islands, and that the defendants herein,
and each and every one of them are doing all that is in their power to procure the unlawful,
forcible, and involuntary expulsion of the plaintiff herein from the Philippine Islands in
violation of the right of the said plaintiff herein to be and to remain in the Philippine Islands as
established by law.
Eight. That the plaintiff herein has no adequate remedy other than that herein prayed for.
Wherefore, the plaintiff prays that a temporary writ of injunction issue out of this court
enjoining the said defendants and each of them and their and each of their agents, servants,
employees, attorneys, successors in office, subordinate officers, and every person in any
way in privity with them, from expelling or deporting or threatening to expel or deport or
procure in any way the expulsion or deportation in any way of the plaintiff herein during the
continuance of this action.
And upon the final hearing of the cause of the said temporary writ of injunction be made
perpetual, and that the defendants and each of them be condemned to pay to the plaintiff
herein the sum of twenty thousand pesos (P20,000) damages and the costs of this action.
Manila, P. I., April 1, 1910.
(Signed) O'BRIEN AND DEWITT,
H. BEAUMONT,
Attorneys for plaintiff.

CITY OF MANILA, Philippine Islands, ss:

C. W. O'Brien, holding cedula No. 1095, dated at Manila, P. I., January 4, 1910, being duly
sworn, upon oath deposes and says that he is one of the attorneys for the plaintiff and has
read the above-entitled complaint and knows that the facts therein stated are true and
correct, except such as are stated upon information and belief, and as to those he believes
them to be true.
(Signed) C. W. O'BRIEN.
Subscribed and sworn to before me this 1st day of April, 1910, at Manila, P.I.
(Signed) J. McMICKING.
The Hon. A. S. Crossfield issued the following order:
ORDER.
To the defendants, W. Cameron Forbes, Charles R. Trowbridge, J. E. Harding, and
all their attorneys, agents, subordinates, servants, employees, successors in office,
and all persons in any way in privity with them, greeting:
The plaintiff having presented a complaint before this Court of First Instance of the city of
Manila, in the cause above entitled, against the defendants W. Cameron Forbes, Charles R.
Trowbridge, and J. E. Harding, above named, and having prayed likewise that a temporary
injunction issue against the said defendants restraining them from doing and continuing to do
certain acts mentioned in the said complaint and which are more particularly set forth
hereinafter in this order; in view of the said complaint and the verification thereof by this
attorney, and it appearing satisfactorily to me because of the facts alleged in said complaint
that the case is one in which a preliminary injunction ought to issue, and the required bond
having been executed in the sum of P2,000.
It is hereby ordered by the undersigned, judge of this Court of First Instance of the city of
Manila, that the said defendants, W. Cameron Forbes, Charles R. Trowbridge, and J. E.
Harding, and all of their attorneys, agents, subordinates, servants, employees, successors in
office, and all persons in any way in privity with them, are, each of them is, hereby restrained
and enjoined from spelling or deporting or threatening to expel or deport, or procuring in any
way the expulsion or deportation in any way of the plaintiff herein during the continuance of
this action.
Manila, P.I. , April 9, 1910.
(signed) A. S. CROSSFIELD,
Judge, Court of First Instance, city of Manila, P. I.
DEMURRER.
Comes the defendant, W. Cameron Forbes, Governor-General of the Philippine Islands, and

I. Demurs to the first count or cause of action in the complaint because the same does not
state fact sufficient to constitute a cause of action against the defendant.
II. He demurs to the second count or cause of action in the complaint because the same
does not state facts sufficient to constitute a cause of action against this defendant.
Wherefore he prays the judgment of the court upon the sufficiency of each of the pretended
causes of action set forth in the complaint.
(Signed) W. A. KINCAID,
THOMAS L. HARTIGAN.
By W. A. KINCAID,
Attorneys for defendant W. Cameron Forbes.
Comes the defendant, W. Cameron Forbes, and moves the court to dissolve the temporary
injunction issued against him in this cause, without notice to this defendant, for the following
reasons:
I. The complaint is insufficient to justify the issuance of the injunction.
II. The court is without jurisdiction to issue said injunction.
(Signed) W. A. KINCAID and THOMAS HARTIGAN,
By W. A. KINCAID,
Attorneys for defendant W. Cameron Forbes.
(Signed) IGNACIO VILLAMOR, Attorney-General.

DEMURRER.
Come the defendants, C. R. Trowbridge and J. E. Harding, and
I. Demur to the first count or cause of action in the complaint because the same does not
state facts sufficient to constitute a cause of action against these defendants.
II. They demur to the second count or cause of action in the complaint because the same
does not state facts sufficient to constitute a cause of action against these defendants.
(Signed) W. A. KINCAID,
THOMAS HARTIGAN,
By W. A. KINCAID,

Attorneys for defendants C. R. Trowbridge and J. E. Harding.

(Signed) IGNACIO VILLAMOR,

Attorney-General.

ORDER.
This case is now before the court for hearing the demurrer presented by the defendants to
plaintiff's complaint and defendants' motion to dissolve the injunction issued against the
defendants upon plaintiff's complaint.
Messrs. O'Brien and DeWitt appeared for the plaintiff; W. A. Kincaid, esq., for the defendants.
The demurrer is based upon the ground that the complaint does not state the facts sufficient
to constitute a cause of action. The motion to dissolve the injunction is grounded upon an
insufficiency of the complaint and lack of jurisdiction in the court.
Counsel for both parties made exhaustive arguments, both apparently considering the primal
issue to be whether the defendant, W. Cameron Forbes, had authority at law, as GovernorGeneral of the Philippine Islands, to deport plaintiff, as alleged in the complaint, and whether
the court had jurisdiction to restrain him from making such deportation.
No question was raised as to the sufficiency of the complaint if all question as to the
Governor-General's authority was eliminated.
A reading of the complaint discloses that the Governor-General of the Philippine Islands, as
such, is not a party to the action.
The allegations of the second paragraph of the complaint, to the effect that W. Cameron
Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is chief
of the secret service of Manila, are descriptive only, and there is no allegation in the
complaint that any of the defendants performed the acts complained of in his official capacity.
The court can not determine the authority or liability of an executive officer of the
Government until the pleadings disclose that his actions as such officer are brought in issue.
The complaint upon its faces a cause of action.
The complaint, stating a cause of action and alleging that the plaintiff is threatened with an
injury by the defendants, they may be properly restrained from committing the alleged injury
until issues raised have been tried and determined and the courts has jurisdiction to issue an
injunction.
The demurrer is, therefore, overruled. The motion to dissolve the preliminary injunction is
denied.
Manila, P. I., this 17th day of May, 1910.
(Signed) A. S. CROSSFIELD,
Judge.

Upon filing of the original complaint and after a due consideration of the facts stated therein, the
Hon. Grant Trent, acting as vacation justice, on the 24th day of May, 1910, issued the following order
or injunction:
PRELIMINARY INJUNCTION.
Whereas, from the facts alleged in the complaint filed in the above-entitled case, it is found
that the plaintiffs are entitled to the preliminary injunction prayed for by them;
Therefore, the bond of P500 mentioned in the order of the 24th of May, 1910, having been
filed, the Hon. A. s. Crossfield, judge of the Court of First Instance of the city of Manila, is
hereby notified that, until he shall have received further orders from this court, he is
prohibited from proceeding with the trial of the case filed by the defendant Chuoco
Tiaco, alias Choa Tea, in the Court of First Instance of this city, against the within plaintiffs for
indemnity as damages for the alleged deportation of the said Chuoco alias Choa Tea.
Given in Manila this 24th day of May, 1910.
(Signed) GRANT TRENT,
Associate Justice, Supreme Court, acting in vacation.
On the 2nd of June, 1910, the defendants presented the following demurrer to the original complaint:
And now come the defendants in the above-entitled cause, by their undersigned attorneys,
and hereby file their demurrer to the complaint upon the grounds that the facts alleged in the
complaint do not constitute a right of action.
Therefore the court is petitioned to dismiss the complaint, with the costs against the plaintiff.
Manila, June 2, 1910.
(Signed) O'BRIEN & DEWITT, and
for defendants.

HARTFORD BEAUMONT,

Attorneys

To the plaintiffs or their attorneys;

You are hereby notified that on Monday, the 15th inst., at nine o'clock in the morning, we
shall ask the court to hear and decide the preceding demurrer.
Manila, June 2, 1910.
(Signed) O'BRIEN & DEWITT, and

HARTFORD BEAUMONT,

Attorney for plaintiffs.

We have this day, June 2, 1910, received a copy of the above.
(Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA,

Attorneys for plaintiffs.

On the 2nd day of June, 1910, the defendants made a motion to dissolve the said injunction, which
motion was in the following language:
And now come the defendants in the above-entitled case and pray the court to dissolve the
preliminary injunction issued in the above-entitled case, on the 24th day of May, 1910, on the
grounds:
(1) That the facts alleged in the complaint are not sufficient to justify the issuance of the said
preliminary investigation;
(2) That the facts alleged in the complaint do not constitute a right of action.
Manila, P.I., June 2, 1910.
(Signed) O'BRIEN & DEWITT, and HARTFORD BEAUMONT, Attorneys for defendants.
To the plaintiffs and to their attorneys:
You are hereby notified that on Monday, the 13th inst., at nine o'clock a.m. we shall ask for a
hearing on the preceding motion.
Manila, June 2, 1910.
(Signed) O'BRIEN & DEWITT, and HARTFORD BEAUMONT, Attorneys for defendants.
We have this day received a copy of the foregoing.
(Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA,
Attorneys for plaintiffs.
Later the plaintiffs obtained permission to file the second amended complaint above quoted. By a
stipulation between the parties "the demurrer" and "motion to dissolve" were to be considered as
relating to the said second amended complaint.
By said "demurrer" and "motion to dissolve" the question is presented whether or not the facts stated
in "the second amended complaint" are sufficient upon which to issue the writ of prohibition prayed
for. If it should be determined that they are not, then, of course, the writ should be denied and the
injunction should be dissolved. If, on the other hand, it should be determined that the facts stated are
sufficient to justify the issuance of said writ, then it should be granted and the injunction should not
be dissolved, but should not be made perpetual.
From the allegations of the complaint (second amended complaint), including Exhibit A (which
constituted the pleadings in the court below), we find the following facts are admitted to be true:
First. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands;
Second. That the plaintiff J. E. Harding is the chief of police of the city of Manila;

Third. That the plaintiff C. R. Trowbridge is the chief of the secret service of the city of Manila;
Fourth. That the defendant, A. S. Crossfield, is one of the judges of the Court of First Instance of the
city of Manila;
Fifth. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality and a
subject of the Chinese Empire;
Sixth. That the plaintiff W. Cameron Forbes, acting in his official capacity as Governor-General of the
Philippine Islands, in the public interest of the Philippine Government and at the request of the
proper representative of the Imperial Government of China, to wit: the consul-general of the said
Imperial Government, did, on or about the 19th day of August, 1909, order the said defendant,
together with eleven others of Chinese nationality, to be deported from the Philippine Islands;
Seventh. That whatever the said plaintiffs J. E. Harding and C. R. Trowbridge did in connection with
said deportation was done by each of them, acting under the orders of the said Governor-General,
as the chief of police of the city of Manila and as the chief of the secret service of the city of Manila;
Eight. That later, and on the 29th day of March, 1910, the said defendant Chouco Tiaco returned to
the Philippine Islands;
Ninth. That the plaintiff W. Cameron Forbes, acting through the said chief of police and the said chief
of the secret service, was threatening to again deport the said Chuoco Tiaco from the Philippine
Islands;
Tenth. That upon the 1st day of April, 1910, the said Chuoco Tiaco commenced an action against the
plaintiff herein (the said W. Cameron Forbes, Governor-General) in the Court of said court over
which the said A. S. Crossfield was presiding as one of the judges of said court, for the purpose of
(a) Recovering a judgment against said defendants (plaintiffs herein) for P20,000 damages for said
alleged wrongful deportation; and
(b) To procure an injunction against said defendants (plaintiffs herein) to prevent them from again
deporting said plaintiff (defendant herein) from the Philippine Islands;
Eleventh. That upon the presentation or filing of the petition in the said action in the Court of First
Instance and on the 9th day of April, 1910, the said A. S. Crossfield issued a preliminary injunction
against the defendants, W. Cameron Forbes, J. E. Harding, and C. R. Trowbridge, and all their
attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any
way in privity with them, forbidding them from expelling or deporting or threatening to expel or deport
or procuring in any way the expulsion or deportation of the plaintiff (chuoco Tiaco) during the
continuance of the action;
Twelfth. Later, and on the .......... day of ........., 1910, the plaintiffs herein (defendants below) each
presented
(1) A demurrer to the causes of action described in the petition filed; and
(2) A motion to dissolve the said preliminary injunction upon the general grounds

(a) That the facts alleged were not sufficient to constitute a cause of action or for the issuance of the
injunction; and
(b) Because the court was without jurisdiction.
Thirteenth. On the 17th day of May, 1910, A. S. Crossfield, after hearing the arguments of the
respective parties, found
(1) That the fact alleged in the petition did constitute a cause of action; and
(2 That the Court of First Instance did have jurisdiction to try the questions presented.
Fourteenth. On the 24th day of May, 1910, the plaintiffs herein, through their attorney, W. A. Kincaid,
presented a petition in the Supreme Court asking that
(a) An injunction be issued against the said A. S. Crossfield, restraining him from proceeding in said
action until further orders from this court; and
(b) That the writ of prohibition be granted against the said judge, forbidding him from taking
jurisdiction of said action and to dismiss the same.
Fifteenth. On the 24th day of May, 1910, the Hon. Grant Trent, Associate Justice, acting in vacation,
issued the preliminary injunction prayed for.
On the 2nd day of June, 1910, the attorneys for the defendants (herein), Messrs. O'Brien and
DeWitt, and Hartforf Beaumont, filed:
(1) A demurrer to the petition; and
(2) A motion to dissolve said injunction, each based upon the general ground that the facts alleged in
the petition were insufficient to constitute a cause of action.
The said "demurrer" and "motion to dissolve" were brought on for hearing before the Supreme Court
on the 11th day of July, 1910, and the questions presented were argued at length by the attorneys
for the respective parties.
One of the questions which is presented by the pleadings and by the arguments presented in the
cause is whether or not the action pending in the lower court is an action against the GovernorGeneral, as such, as well as against the other defendant in their official capacity. If it should be
decided that the action is one against the defendants in their official capacity, then the question will
be presented for decision whether or not the courts have jurisdiction over the Governor-General, for
the purpose of reviewing his action in any case and with especial reference to the facts presented.
The pleadings presented in this court affirmatively allege that the action in the lower court was
against the defendants (plaintiffs herein) in their official capacity. The pleadings here also allege
positively that the acts complained of in the lower court were done by the defendants in their official
capacity; that the expulsion of the defendant (plaintiff below) was in the public interest of the
Government, at the request of the consul-general of the Imperial Government of China; that the said
plaintiffs J. E. Harding and C. R. Trowbridge acted under the orders of the plaintiff W. Cameron
Forbes; that W. Cameron Forbes acted in his official capacity as Governor-General, the act being an
act of the Government itself, which action was immediately reported to the Secretary of War.

The pleadings in the lower court simply described the defendants (plaintiffs herein) as W. Cameron
Forbes, the Governor-General; J. E. Harding, chief of police of the city of Manila, and C. R.
Trowbridge, chief of the secret service of the city of Manila. The lower court held that:
The allegations of the second paragraph of the complaint, to the effect that W. Cameron
Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is the
chief of the secret service of Manila, and that J. E. Harding is the chief of police of Manila,
are descriptive only, and there is no allegation in the complaint that any of the defendants
(plaintiffs herein) performed the acts complained of in his official capacity.
The theory of the lower court evidently was that the defendants should have been described, for
example, "W. Cameron Forbes, as Governor-General," etc. In this theory the lower court has much
authority in its support. However, this failure of correct and technical description of the parties is an
objection which the parties themselves should present, but when all the parties treat the action as
one based upon a particular theory, that theory should be accepted. Upon this question the lower
court, in his order, said:
Counsel for both parties made exhaustive arguments, both apparently considering the primal
issue to be whether the defendant, W. Cameron Forbes, had authority at law, as GovernorGeneral of the Philippine Islands, to deport plaintiff, as alleged in the complaint and whether
the court had jurisdiction to restrain him from making such deportation.
It will be noted also that the prayer of the complaint in the lower court asked for relief against "his
successors in office." The injunction also ran against "his successors in office." Thus clearly it
appears that the action was against the defendants in their official capacity.
In this court there was no pretension by the attorney for the defendant (plaintiff below) that the action
was not against the Governor-General as Governor-General, and the others as well, in their official
capacity. In fact, when an inquiry was made of the attorney for the defense concerning his theory, his
reply was simply that the acts of the Governor-General, being illegal, were not performed in his
official capacity.
The argument of the attorney for the defendant was directed to the proposition that the GovernorGeneral, in deporting or expelling the said Chinamen, did not act in accordance with that provision of
the Philippine Bill (sec. 5, Act of Congress, July 1, 1902), which provides that:
No law shall be enacted in said Islands which shall deprive any person of life, liberty, or
property, without due process of law; or deny to any person therein equal protection of the
laws.
The attorney for the plaintiffs, in answering this argument, maintained:
First. That the act of the Governor-General was the act of the Philippine Government and that he
had a right, inherent in him as the representative of the Government and acting for the Government,
to deport or expel the defendant; and
Second. In the absence of express rules and regulations for carrying such power into operation, he
(the Governor-General) had a right to use his own official judgment and discretion in the exercise of
such power.

In order to arrive at a correct solution of the questions presented by the foregoing facts, we shall
discuss the following propositions:
I.
WHAT ARE THE POWERS OF THE PHILIPPINE GOVERNMENT TO DEPORT OR EXPEL
OBJECTIONABLE ALIENS?
The Government of the United States in the Philippine Islands is a government with such delegated,
implied, inherent, and necessary military, civil, political, and police powers as are necessary to
maintain itself, subjected to such restrictions and limitations as the people of the United States,
acting through Congress and the President, may deem advisable, from time to time, to interpose.
(Instructions of the President McKinley to the Taft Commission; executive order of President
McKinley dated June 21, 1910, appointing Mr. Taft Civil Governor of the Philippine Islands; that part
of the Act of Congress of March 2, 1901, known as the Spooner Amendment; Barcelon vs. Baker, 5
Phil. Rep., 87; U. S. vs. Bull, 15 Phil. Rep., 7, 8 Off. Gaz., 271.)
The Spooner Amendment provided that
All military, civil, and judicial powers necessary to govern the Philippine Islands . . . shall,
until otherwise provided by Congress, be vested in such person and persons, and shall be
exercised in such manner, as the President of the United States shall direct, for the
establishment of civil governments and for maintaining and protecting the inhabitants of said
Islands in the free enjoyment of their liberty, property, and religion.
By this Act of Congress a system of government was established in the Philippine Islands which
carried with it the right and duty on the part of such government to perform all acts that might be
necessary or expedient for the security, safety, and welfare of the people of the Islands.
In the case of United States vs. Bull, this court, speaking through Mr. Justice Elliot, said:
Within the limits of its authority the Government of the Philippine Islands is a complete
governmental organisms, with executive, legislative, and judicial departments exercising the
functions commonly assigned to such departments. The separation of powers is as complete
as in most governments.
Having reached the conclusion that the Government of the United States in the Philippine Islands is
a government with all the necessary powers of a government, subject to certain control in the
exercise thereof, we are of the opinion and so hold, that it has impliedly or inherently itself in
conformity with the will of the Congress of the United States and the President thereof, and to this
end it may prevent the entrance into or eliminate from its borders all such aliens whose presence is
found to be detrimental or injurious to its public interest, peace, and domestic tranquility. Every
government having the dignity of a government possesses this power. Every author who has written
upon the subject of international law and who has discussed this question has reached the same
conclusion. Among these authors may be mentioned such noted men and statemen as Vattel,
Ortolan, Blackstone, Chitty, Phillimore, Puffendorf, Fiore, Martens, Lorimer, Torres, Castro, Bello,
Heffer, Marshall, Cooley, Wharton, Story, Moore, Taylor, Oppenheim, Westlake, Holland, Scott,
Haycroft, Craies, Pollock, Campbell, and others.
Not only have all noted authors upon this question of international law reached this conclusion, but
all the courts before which this particular question has been involved have also held that every

government has the inherent power to expel from its borders aliens whose presence has been found
detrimental to the public interest.
This court, speaking through its Chief Justice, in the case of In re Patterson (i Phil. Rep., 93), said:
Unquestionably every State has a fundamental right to its existence and development, and
also to the integrity of its territory and the exclusive and peaceable possession of its
dominions, which it may guard and defend by all possible means against any attack. . . . We
believe it is a doctrine generally professed by virtue of that fundamental right to which we
have referred that under no aspect of the case does this right of intercourse give rise to any
obligation on the part of the State to admit foreigners under all circumstances into its territory.
The international community, as Martens says, leaves States at liberty to fix the conditions
under which foreigners should be allowed to enter their territory. These conditions may be
more or less convenient to foreigners, but they are a legitimate manifestation of territorial
power and not contrary to law. In the same way a State may possess the right to expel from
its territory any foreigner who does not conform to the provisions of the local law. (Marten's
Treatise on International Law, vol. 1, p. 381.) Superior to the law which protest personal
liberty, and the agreements which exist for their own interests and for the benefit of their
respective subjects, is the supreme and fundamental right of each State to self-preservation
and the integrity of its dominion and its sovereignty. Therefore it is not strange that this right
should be exercised in a sovereign manner by the executive power, to which is especially
entrusted, in the very nature of things, the preservation of so essential a right, without
interference on the part of the judicial power. If it can not be denied that under normal
circumstances when foreigners are present in the country the sovereign power has the right
to take all necessary precautions to prevent such foreigners from imperiling the public safety
and to apply repressive measures in case they should abuse the hospitality extended to
them, neither can we shut our eyes to the fact that there may be danger to personal liberty
and international liberty if to the executive branch of the government there should be
conceded absolutely the power to order the expulsion of foreigners by means of summary
and discretional proceedings; nevertheless, the greater part of modern laws, notwithstanding
these objections, have sanctioned the maxim that the expulsion of foreigners is a political
measure and that the executive power may expel, without appeal, any person whose
presence tends to disturb the public peace.
The Supreme Court of the United States, speaking through Mr. Justice Field, in the case of Chao
Chan Ping vs. United States (130 U. S., 581) (A. D. 1888) said:
These laborers are not citizens of the United States; they are aliens. That the Government of
the United States, through the action of the legislative department, can exclude aliens from
its territory is a proposition which we do not think open to controversy. Jurisdiction over its
own territory to that extent is an incident of every independent nation. It is a part of its
independence, subject to the control of another power. The United States in their relation to
foreign countries and their subjects or citizens are one nation invested with powers which
belong to independent nations, the exercise of which can be invoked for the maintenance of
its absolute independence and security throughout its entire territory. . . .
. . . The power of exclusion of foreigners being an incident of sovereignty, belonging to the
Government of the United States as a part of those sovereign powers delegated by the
Constitution, the right to its exercise at nay time when, in the judgment of the Governments,
the interests of the country require it, can not be granted away or restrained on behalf of
anyone. The powers of the Government are delegated in trust to the United States and are
incapable of transfer to any other parties. They (the incidents of sovereignty),can not be

abandoned or surrendered nor can their exercise be hampered when needed for the public,
by any consideration of private interests.
In the case of Ekiu vs. United States (142 U. S., 651, 659) (A. D. 1891) the Supreme Court of the
United States, speaking through Mr. Justice Gray, said:
It is an accepted maxim of international law that every sovereign nation has the power, as
inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners
within its dominions or to admit them only in such cases and upon such conditions as it may
see fit to prescribe. In the United States this power is vested in the National Government, to
which the Constitution has committed the entire control of international relations, in peace as
well as in war. It belongs to the political department of the Government and may be
exercised either through treaties made by the President and Senate or through statutes
enacted by Congress.
Later, The Supreme Court of the United States, in the case of Fong Yue Ting vs. United States (149
U. S., 698) (A. D. 1892), speaking through Mr. Justice Gray, again said:
The right of a nation to expel or deport foreigners who have not been naturalized or taken
any steps toward becoming citizens of the country, rests upon the same grounds and is as
absolute and unqualified as the right to prohibit and prevent their entrance into the country.
The power to exclude or expel aliens being a power affecting international relations is vested in the
political department of the Government. The power to exclude aliens and the power to expel them
rest upon one foundation, are derived from one source, are supported by the same reasons, and
are, in truth, but the exercise of one and the same power.
In a very recent case The Attorney-General of Canada vs. Cain (House of Lords Reports, Appeal
Cases, 1906), Lord Atkinson, speaking for the court said (p. 545):
In 1763 Canada and all its dependencies, with the sovereignty, property, and possession,
and all other rights which had at ant time been held or acquired by the Crown of France,
were ceded to Great Britain (St. Catherine's Milling and Lumber Company vs. Reg., 145
Appeal cases, 46, 53). Upon that event the Crown of England became possessed of all
legislative and executive powers within the country so ceded to it and save so far as it has
since parted with these powers by legislation, royal proclamation, or voluntary grant, it is still
possessed of them.
One of the rights possessed by the supreme power in every State is the right to refuse to
permit an alien to enter that State, to annex what conditions it pleases to the permission to
enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if
it considers his presence in the State opposed to its peace, order, and good government, or
to its social or material interests. (Citing Vattel's Law of Nations in support of his proposition.)
In the case of Hodge vs. Reg. (9 Appeal Cases, 117) it was decided that a colonial legislature, under
the British Government, has, within the limits prescribed by the statute which created it, an authority
as plenary and as ample as the imperial parliament in the plenitude of its power possessed and
could bestow.
See also In re Adams, 1 Moore's Privy Council, 460, 472-476 (A. D. 1837); Donegani vs. Donegani,
3 Knapp, 63, 68 (A. D. 1835); Cameron vs. Kyte, 3 Knapp, 332, 343 (A. D. 1835); Mustgrave vs.

Pulido, Law Reports, 5 Appeal Cases, 102 (A. D. 1879); Nudtgrave vs. Chun Teong Toy, Law
Reports, Appeal cases, 272 (a. D. 1891); Hill vs. Bigge, 3 Moore's Privy Council, 465; The Nabob
of Carnatic vs. The East Indian Company, 1 Vese, Jr., 388;Fabrigas vs. Mostyn, 1 Cowpoer, 161.
Mr. Vattel, writing as early as 1797, in discussing the question of the right of nation or government to
prevent foreigners from entering its territory or to expel them, said:
Every nation has the right to refuse to admit a foreigner into the country when he can not enter
without putting the nation in evident danger or doing it manifest injury. What it (the nation) owes to
itself, the care of its own safety, gives to it this right; and in virtue of its national liberty, it belongs to
the nation to judge whether its circumstances will or will not justify the admission of the foreigner.
Thus, also, it has a right to send them elsewhere it if has just cause to fear that they will corrupt the
manners of the citizens; that they will create religious disturbances or occasion any other disorder
contrary to the public safety. In a word, it has a right, and is even obliged in this respect, to follow the
rules which prudence dictates." (Vattel's Law of Nations, book 1, Chapter 19, secs. 230, 231.)
Mr. Ortolan said:
The Government of each State has always the right to compel foreigners who are found
within its territory to go away, by having them taken to the frontier, not making a part of the
nation, his individual reception into the territory is a matter of pure permission and simple
tolerance and creates no obligation. The exercise of this right may be subject, doubtless, to
certain forms prescribed by the domestic laws of each country; but the right exists, none the
less, universally recognized and put in force. In France, no special form is now prescribed in
this matter; the exercise of this right of expulsion is wholly left to the executive power.
(Ortolan, Diplomatie de la Mer, book 2, chapter 14, edition, p. 297.)
Mr. Phillimore said:
It is a received maxim of international law that the government of the State may prohibit the
entrance of strangers into the country and may, therefore, regulate the conditions under
which they shall be allowed to remain in it or may require or compel their deportation from it.
(1 Phillimore's International Law, 3d edition, chapter 10, sec. 220.)
Mr. Taylor said:
Every independent State possesses the right to grant or refuse hospitality. Undoubtedly such
a State possesses the power to close the door to all foreigners who, for social, political or
economical reasons, it deems expedient to exclude; and for like reasons it may subject a
resident foreigner or a group of them to expulsion, subject, of course, to such retaliatory
measures as an abuse of the excluding or expelling power may provoke. (Tayloy,
International Public Law, p. 231.)
Mr. Oppenheim said:
Just as a State is competent to refuse admission to foreigners, so it is in conformity with its
territorial supremacy competent to expel at any moment a foreigner who has been admitted
into its territory. And it matter not whether the respective individual is only on a temporary
visit or has settled down professional or business purposes on that territory, having taken his
domicile thereon.

It has also been held that a State may expel a foreigner who has been residing within its
territory for some length of time and has established a business there, and that his only
remedy is to have his home State, by virtue of the right of protection of a State over its
citizens abroad, to make diplomatic representations to the expelling State and ask for the
reasons for such expulsion; but the right being inherent in the sovereignty or State, it can
expel or deport even domiciled foreigners without so much as giving the reasons therefor.
The expulsion of aliens from a State may be an unfriendly act to the State of the individual
expelled, but that does not constitute the expulsion an illegal act, the law nations permitting
such expulsions. (Oppenheim, International Law, sec. 323.)
Mr. Marthens said:
The Government of each State has always a right to compel foreigners who live within its
territory to go away, having them conveyed to the frontier. This right has its cause in the fact
that as a stranger does not form a part of a nation, his individual admission into the country
is merely discretional, a mere act of tolerance, in no way obligatory. The practice of this right
might be subject to certain forms prescribed by the international laws of each country, but the
right is always universally acknowledged and put into practice. (Marten's Droit des Gens,
book 3, p. 91.)
This implied or inherent right in the Government to prevent aliens from entering its territory or to
deport or expel them after entrance, has not only been recognized by the courts and eminent writers
of international law, but has also been recognized many times by the executive and legislative
branches of the Government. Acts of the Congress of the United States, of the Parliament of Great
Britain, as well as the British colonial parliaments, and royal decrees might be cited in support of this
doctrine.
One of the very early Acts of Congress of the United States (A. D. 1798) authorized the President of
the United States to order all such aliens as he should judge to be dangerous to the peace and
safety of the country, or that he should have reasonable grounds to suspect of being concerned in
any treasonable machinations against the Government, to deport out of the territory of the United
States within such time as he should express in his order. And it was further provided that if any such
aliens, so sent out, should return without the permission of the President, they should be imprisoned
so long as, in the opinion of the President, the public safety might require.
Mr. Frelinghuysen, as Secretary of State of the United States (1882), said:
This Government (United States) can not contest the right of foreign governments to
exclude, on policy or other grounds, American citizens from their shores.
Mr. Gresham, Secretary of State of the United States, in speaking of the right of Hayti to expel from
its borders American citizens from their shores.
This government does not propose to controvert the principle of international law which
authorizes every independent State to expel objectionable foreigners or class of foreigners
from its territory. The right of expulsion or exclusion of foreigners is one which the United
States, as well as many other countries, has, upon occasions, exercised when deemed
necessary in the interest of the Government or its citizens. . . .
Every State is authorized, for reasons of public order, to expel foreigners who are temporarily
residing in its territory, but when a Government expels foreigners without cause and in an

injurious manner, the State of which the foreigner is a citizen has a right to prefer a claim for
this violation of international law and to demand satisfaction, if there is occasion for it.
Many other cases might be cited showing the arbitrary manner in which aliens have, from time to
time, been deported.
Expulsion is a police measure, having for its object the purging of the State of obnoxious foreigners.
It is a preventive, not a penal process, and it can not be substituted for criminal prosecution and
punishment by judicial procedure.
The right of deportation or expulsion is generally exercised by the executive head of the
Government, sometimes with and sometimes without express legislation. Sometimes it is delegated
in particular instances to the heads of some departments of the Government. (Act No. 265, U. S.
Philippine Commission.)
In Canada the right was given by statute to the attorney-general of Canada. (Dominion Act, 60th and
61st Victoria, chap. 11, sec. 6, as amended by 1st Edward 7th, Chap. 13.)
It having been established that every government has the implied or inherent right to deport or expel
from its territory objectionable aliens, whenever it is deemed necessary for the public good, we deem
it pertinent to inquire:
II
IN WHAT DEPARTMENT OR DEPARTMENTS OF THE INDEPENDENT DEPARTMENTS
OF A GOVERNMENT DOES THIS INHERENT POWER EXISTS?
The rule of law permitting nations to deport or expel objectionable aliens, while international in its
character is yet, nevertheless, in its application, executed by the ]particular nation desiring to rid
itself of such aliens and must, therefore, be carried into operation by that departments of the
government charged with the execution of the nation's laws. Its enforcement belongs peculiarly to
the political department of the government. The right is inherent in the government and, as Mr.
Justice Field said, "can not be granted away or restrained on behalf of anyone." It being inherent in
the political department of the government, it need not be defined by express legislation, although in
some States the legislative department of the government has prescribed the condition and the
method under which and by which it shall be carried into operation. The mere absence of legislation
regulating this inherent right to deport or expel aliens is not sufficient to prevent the chief executive
head of the government, acting in his own sphere and in accordance with his official duty, to deport
or expel objectionable aliens, when he deems such] action necessary for the peace and domestic
tranquility of the nation. One of the principal duties of the chief executive of a nation is to preserve
peace and order within the territory. To do this he is possessed of certain powers. It is believed and
asserted to be sound doctrine of political law that if in a particular case he finds that there are aliens
within its territory whose continued presence is injurious to the public interest, he may, even in the
absence of express law, deport them. The legislative department of the government is not always in
session. It may require days and even months for that department to assemble. Sudden and
unexpected conditions may arise, growing out of the presence of obnoxious and untrustworthy
foreigners, which demand immediate action. Their continued presence in the country may jeopardize
even the very life of the government. To hold that, in view of the inherent power of the government,
the chief executive authority was without power to expel such foreigners, would be to hold that at
times, at least, the very existence and life of the government might be subjected to the will of
designing and obnoxious foreigners, who were entirely out of sympathy with the existing

government, and whose continued presence in the territory might be for the purpose of destroying
such government.
Suppose for example, that some of the inhabitants of the thickly populated countries situated near
the Philippine Archipelago, should suddenly decide to enter the Philippine Islands and should,
without warning appear in one of the remote harbors and at once land, for the purpose of stirring up
the inhabitants and inciting dissensions against the present Government. And suppose, for example,
that the Legislature was not in session; could it be denied that the Governor-General, under his
general political powers to protect the very existence of the Government, has the power to take such
steps as he may deem wise and necessary for the purpose of ridding the country of such obnoxious
and dangerous foreigners? To admit such a doctrine would be to admit that every government was
without the power to protect its own life, and at times might be subjected to the control of people who
were out of sympathy with the spirit of the Government and who owe no allegiance whatever to it,
and are under no obligation to assist in its perpetuity.
It has never been denied, in a government of separate and independent departments, executive,
legislative, and judicial, that the legislature may prescribe the methods or conditions for the exercise
of his power, but the mere absence of such rules neither proves that the power does not exist nor
that the executive head of the government may not adopt himself such methods as he may deem
advisable for the public good and the public safety. He can only be controlled in the conditions and
methods as to when and have the powers shall be exercised. The right itself can not be destroyed or
bartered away. When the power is once created and no rules are adopted for its enforcement, the
person or authority who has to exercise such power has the right to adopt such sane methods for
carrying the power into operation as prudence, good judgment and the exigencies of the case may
demand; and whatever rules and regulations may be adopted by the person or department
possessing this power for carrying into operation this inherent power of the government, whether
they are prescribed or not, will constitute due process of law. (See speech delivered by John
Marshall in the House of Representatives of the United States, Annals of the Sixth Congress, 595;
United States vs. Robins, Fed. Cas. No. 16,175, 27 Fed. Cas., 825; Moyer vs. Peabody, 212 U. S.,
78; Murray vs. Hoboken Land and Improvement Co., 18 How., 272; U. s., vs. Ju Toy, 198 U. S., 253,
263.)
We have said that the power to deport or expel foreigners pertains to the political department of the
government. Even in those jurisdictions where the conditions under which persons may be deported
are left to the courts to decide, even then the actual deportations must be carried into operation by
the executive department of the government. The courts have no machinery for carrying into
operation their orders except through the executive department.
In the present case the fact is charged and admitted that the defendant was deported by W.
Cameron Forbes as Governor-General of the Philippine Islands, acting for the Government. Mr.
Forbes is "the chief executive authority in all civil affairs of the Government of the Philippine Islands"
as such it is his duty to enforce the laws. It is out opinion and we so hold that as such "executive
authority" he had full power, being responsible to his superiors only, to deport the defendant by
whatever methods his conscience and good judgment might dictate. But even though we are wrong
in our conclusions that he is the possessor of the inherent right to deport aliens, and it is true that the
power belongs to the legislative department to prescribe rules and regulations for such deportation,
yet, in the present case, the legislative department expressly recognized his authority and approved
his acts by a resolution adopted by it on the 19th of April, 1910. This power of the legislature to
expressly ratify acts alleged to be illegal by the executive department, has been expressly
recognized by the Supreme court of the United States in the case of United States vs. Heinszen &
Co., (206 U. S., 370); O'Reilly de Camara vs. Brooke, Major-General (142 Fed. Rep., 859). An act
done by an agent of the Government, though in excess of his authority, being ratified and adopted

by the Government, is held to be equivalent to previous authority. (142 Federal Reporter, supra;
Phillips vs. Eyre, Law Reports, 6 Queen's Bench Cases, 1; Secretary of State vs.Kamachee Baye
Sahaba, 13 Moore's Privy Council, 22; O'Reilly de Camara vs. Brooke, Major-General, 209 U. S.,
54.)
It is also admitted that the act of the Governor-General in deporting the defendant was in compliance
with a request made by the official representative of the Imperial Government of China. It would
seem, therefore, that said request, in the absence of any other power, would be sufficient justification
of his act. The mere fact that a citizen or subject is out of the territory of his country does not relieve
him from that allegiance which he owes to his government, and his government may, under certain
conditions, properly and legally request his return. This power is expressly recognized by the
Congress of the United States. (See Act of Congress of January 30, 1799, 1 Statutes at large, 613;
sec. 5533, Revised Statutes of United States; sec. 5, United States Penal Code, adopted March 4,
1909.)
It was strenuously argued at the hearings of this cause that the defendant was deported without due
process of law, in fact, that was the burden of the argument of attorney for the defendant.
Due process of law, in any particular case, means such an exercise of the powers of the
government as the settled maxims of law permit and sanction and under such safeguards for
the protection of individual rights as those maxims prescribe for the class of cases to which
the one in questions belongs. (U. S. vs. Ling Su Fan, 10 Phil. Rep., 104, 111; Moyer vs.
Peabody, 212 U. S., 78; Murray vs. Hoboken Land and Improvement Co., 18 How., 272; U.
S. vs. Ju Toy, 198 U. S., 253, 263.)
An examination of the methods by which the defendant was deported, as stated by the attorney for
the defendant, as compared with the numerous cases of deportation by the various governments of
the world, shows that the method adopted in the present case was in accordance with the methods
adopted by governments generally and the method sanctioned by international law. (See Moore's
International Law Digest, vol. 4.)
It has been repeatedly decided when a government is dealing with the political rights of aliens that it
is not governed by that "due process of law" which governs in dealing with the civil rights of aliens.
For instance, the courts of the United States have decided that in the deportation of an alien he is
not entitled to right of trial by jury, the right of trial by jury being one of the steps in the "due process
of law" in dealing with civil rights. (Fong Yue Ting vs. U. S., 149 U. S. 698; U. S. vs. Wong Dep Ken,
57 Fed. Rep., 206; U. S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy Hoe, 53 Fed. Rep., 914.)
In the case of Moyer vs. Peabody, Governor of Colorado (212 U. S. , 78), Mr. Justice Holmes,
speaking for the court upon the question of what is "due process of law," said:
But it is familiar that what is due process of law depends on circumstances. It varies with the
subject-matter and the necessities of the situation. Thus, summary proceedings suffice for
taxes and executive decisions for exclusion from the country.
Neither will the fact that an alien residing in the territory holds a certificate of admission justify his
right to remain within such territory as against an act of the executive department of the Government
which attempts to deport him. (Chae Chan Ping vs. U. S. 581, 36 Fed. Rep., 431.) The certificate is a
mere license and may be revoked at any time. An alien's right to remain in the territory of a foreign
government is purely a political one and may be terminated at the will of such government. No cases
have been found, and it is confidently asserted that there are none, which establish a contrary
doctrine.

Having established, as we believe:

(a) That a government has the inherent right to deport aliens whenever the government believes it
necessary for the public good; and
(b) That the power belongs to the political department of the government and in the Philippine
Islands to the Governor-General, who is "the chief executive authority in all civil affairs" in the
Government of the Philippine Islands:
We deem it pertinent to inquire:
III.
WHETHER OR NOT THE COURTS CAN TAKE JURISDICTION IN ANY CASE RELATING
TO THE EXERCISE OF THIS INHERENT POWER IN THE DEPORTATION OF ALIENS,
FOR THE PURPOSE OF CONTROLLING THIS POWER VESTED IN THE POLITICAL
DEPARTMENT OF THE GOVERNMENT.
The question whether or not the courts will ever intervene or take jurisdiction in any case against the
chief executive head of the government is one which has been discussed by many eminent courts
and learned authors. They have been unable to agree. They have not been able to agree even as to
what is the weight of authority, but they all agree, when the intervention of the courts is prayed for,
for the purpose of controlling or attempting to control the chief executive head of the government in
any matter pertaining to either his political or discretionary duties, that the courts will never take
jurisdiction of such case. The jurisdiction is denied by the courts themselves on the broad ground
that the executive department of the government is separate and independent department, with its
duties and obligations, the responsibility for the compliance with which is wholly upon that
department. In the exercise of those duties the chief executive is alone accountable to his country in
his political character and to his own conscience. For the judiciary to interfere for the purpose of
questioning the manner of exercising the legal, political, inherent duties of the chief executive head
of the government would, in effect, destroy the independence of the departments of the government
and would make all the departments subject to the judicial. Such a conclusion or condition was
never contemplated by the organizers of the government. Each department should be sovereign and
supreme in the performance of his duties within its own sphere, and should be left without
interference in the full and free exercise of all such powers, rights, and duties which rightfully, under
the genius of the government belong to it. Each department should be left to interpret and apply,
without interference, the rules and regulations governing it in the performance of what may be
termed its political duties. Then for one department to assume to interpret or to apply or to attempt to
indicate how such political duties shall be performed would be an unwarranted, gross, and palpable
violation of the duties shall be performed would be an unwarranted, gross, and palpable violation of
the duties which were intended by the creation of the separate and distinct departments of the
government.
It is no answer to this conclusion to say that the chief executive authority may violate his duties and
the constitutional guaranties of the people, or that injustice may be done, or that great and
irreparable damage may be occasioned without a remedy. The judicial is not the only department of
the government which can do justice or perpetually conserve the rights of the people. The executive
department of the government is daily applying laws and deciding questions which have to do with
the most vital interest of the people. (Marbury vs. Madison, 1 Cranch, U. S., 152; State of
Miss. vs. Johnson, 4 Wall., 475, 497; Hawkins vs. The Governor, 1 Ark., 570 (33 Am. Dec., 346);
Sutherland vs. The Governor, 29 Mich., 320; People vs. Bissell, 19 Ill., 229 (68 Am. Dec., 591);
Statevs. Warmoth, 22 La. An., 1.)

In the case of State vs. Warmoth (22 La. An., 10 Mr. Justice Taliaferro said (pp. 3,4):
He [the governor] must be presumed to have this discretion, and the right of deciding what
acts his duties require him to perform; otherwise his functions would be trammeled, and the
executive branch of the government made subservient, in an important feature, to the
judiciary.
When the official acts to be performed by the executive branch of the government are
divided into ministerial and political, and courts assume the right to enforce the performance
of the former, it opens a wide margin for the exercise of judicial power. The judge may say
what acts are ministerial an what political. Circumstances may arise and conditions may exist
which would require the Governor of a State, in the proper exercise of his duty, and with
regard to the interests of the State, not to perform a ministerial act. Is the judge to determine
his duty in such case, and compel him to perform it? The reasons of the executive for the
nonperformance of an act, the judge may never know, or, if brought to his knowledge, he
may review and overrule them, and, in doing, assume political functions. He would
determine, in such a case, the policy of doing the act. The legislator himself, who prescribed
the act might hold the executive harmless while the judge condemned him.
We believe that there are certain inherent powers vested in the chief executive authority of the State
which are universally denominated political, which are not defined either by the constitution or by the
laws. We believe that those inherent powers would continue to exist for the preservation of the life
and integrity of the State and the peace and quietude of its people, even though the constitution
were destroyed and every letter of the statutes were repealed. This must necessarily be true, or,
otherwise, the hands of the chief executive authority of the government might, at times, be paralyzed
in his efforts to maintain the existence of the government. The United States Government never
intended to create in the Philippine Islands a government without giving it adequate power to
preserve itself and to protect the highest interests of the people of the Archipelago.
These inherent, inalienable, and uncontrollable powers which must necessarily exists in the absence
of express law in the chief executive authority of a nation have been clearly demonstrated by the
action of the President of the United States, notably in putting down what is known as the "Whisky
Rebellion" in the State of Pennsylvania, in the case of the protection of a judge of the United States
(In re Neagle, 135 U. S., 1, 64), as well as in the case of the uprising of labor organizations in the
city of Chicago under the direction and control of Mr. Debbs (In re Debbs, 158 U. S., 568).
These powers and the right to exercise them according to his own good judgment and the
conscience and his acts in pursuance of them are purely political and are not subject to control by
any other department of the government. It is believed that even the Legislature can not deprive him
of the right to exercise them.
Upon the question of the right of the courts to interfere with the executive, this court has already
pronounced, in the case of In re Patterson (1 Phil. Rep., 93) that:
Superior to the law which protects personal liberty and the agreements which exist between
nations for their own interests and the benefit of their respective subjects is the supreme and
fundamental right of each state to self-preservation and the integrity of its dominion and its
sovereignty. Therefore it is not strange that this right should be exercised in a sovereign
manner by the executive power to which is entrusted, in the very nature of things, the
preservation of so essential a right, without interference on the part of the judicial power.

This court has also announced the doctrine, in the case of Barcelon vs. Baker et al (5 Phil. Rep., 87)
that:
Under the form of the government established in the Philippine Islands one department of
the Government has no power or authority to interfere in the acts of another, which acts are
performed within the discretion of the other department.
In the case of Martin vs. Mott it was decided by the Supreme Court of the United States, whenever
the performance of a political duty developed upon the chief executive authority of a nation and
when he had decided as to the method of performing that duty, that no court could question his
decision. We are of the opinion and so hold, whenever the authority to decide a political question
devolves upon any separate and distinct department of the Government, which authority impose
upon that department the right to decide whether the exigencies for its exercise have arisen, and
when that department had decided, that decision is conclusive upon all other persons or
departments.
This doctrine has been further recognized by this court in the case of Merchant vs. Del Rosario (4
Phil. Rep., 316) as well as in the case of Debrunner vs. Jaramillo (12 Phil. Rep., 316).
Under the system of government established in the Philippine Islands the Governor-General is "the
chief executive authority," one of the coordinate branches of the Government, each of which, within
the sphere of its governmental powers, is independent of the others. Within these limits the
legislative branch can not control the judicial nor the judicial the legislative branch, nor either the
executive department. In the exercise of his political duties the Governor-General is, by the laws in
force in the Philippine Islands, invested with certain important governmental and political powers and
duties belonging to the executive branch of the Government, the due performance of which is
entrusted to his official honesty, judgment, and discretion. So far as these governmental or political
or discretionary powers and duties which adhere and belong to the Chief Executive, as such, are
concerned, it is universally agreed that the courts possess no power to supervise or control him in
the manner or mode of their discharge or exercise. (Hawkins vs. The Governor, supra;
People vs. The Governor, supra; Marburyvs. Madison, supra; Meecham on Public Officers, sec. 954;
In re Patterson, supra; Barcelon vs. Baker, supra.)
It may be argued, however, that the present action is one to recover damages against the Governor
and the others mentioned in the cause, for the illegal acts performed by them, and not an action for
the purpose of in any way controlling or restraining or interfering with their political or discretionary
duties. No one can be held legally responsible in damages or otherwise for doing in a legal manner
what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under
the law, to deport or expel the defendants, and the circumstances justifying the deportation and the
method of carrying it out are left to him, then he can not be held liable for damages for the exercise
of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose
of controlling or interfering with the exercise of the political powers vested in the chief executive
authority of the Government, then it must follow that the courts can not intervene for the purpose of
declaring that he is liable in damages for the exercise of this authority. Happily we are not without
authority upon this question. This precise question has come before the English courts on several
different occasions.
In the cases of The Lord-Lieutenant of Ireland (Governor of Ireland), Tandy vs. Earl of
Westmoreland (27 State Trials, 1246), and Luby vs. Lord Wodehouse (17 Iredell, Common Law
Reports, 618) the courts held that the acts complained of were political acts dine by the lordLieutenant in his official capacity and were assumed to be within the limits of the authority delegated

to him by the Crown. the courts if England held that, under the circumstances, no action would lie
against the lord-lieutenant, in Ireland or elsewhere.
In the case of Chun Teeong Toy vs. Musgrave (Law Reports, Appeal Cases 1891, p. 272) the
plaintiff, a Chinese subject, brought an action for damages against the defendant as collector of
customs of the State of Victoria in Australia, basing his action upon the refusal of the Victorian
government to permit him to enter that State. Upon a full consideration the Privy Council said:
Their Lordships can not assent to the proposition that an alien refused permission to enter
British territory can, in an action against the British Crown, compel the decision of such
matters as these, involving delicate and difficult constitutional questions affecting the
respective rights of the Crown and Parliament and the relation of this country to her selfgoverning colonies. When once it is admitted that there is no absolute and unqualified right
of action on the behalf of an alien refused permission to enter British territory, their Lordships
are of opinion that it would be impossible, upon the facts which the demurrer admits, for an
alien to maintain an action.
If it be true that the Government of the Philippine Islands is a government invested with "all the
military,. civil, and judicial powers necessary to govern the Philippine Islands until otherwise provided
by Congress" and that the Governor-General is invested with certain important political duties and
powers, in the exercise of which he may use his own discretion, and is accountable only to his
superiors in his political character and to his own conscience, and without authority to interfere in the
control of such powers, for any purpose, then it must follow that the courts can not take jurisdiction in
any case against him which has for its purpose the declaration that such acts are illegal and that he
is, in consequence, liable for damages. To allow such an action would, in the lost effective way
possible, subject the executive and political departments of the Government to the absolute control
of the judiciary. Of course, it will be observed that we are here treating only with the political and
purely executive duties in dealing with the political rights of aliens. The conclusions herein reached
should not be extended to cases where vested rights are involved. That question must be left for
future consideration.
From all the foregoing facts and authorities, we reach the following conclusions:
First. That the Government of the United States in the Philippine Islands is a government possessed
with "all the military, civil, and judicial powers necessary to govern the Philippine Islands" and as
such has the power and duty, through its political department, to deport aliens whose presence in
the territory is found to be injurious to the public good and domestic tranquility of the people.
Second. That the Governor-General, acting in his political and executive capacity, is invested with
plenary power to deport obnoxious aliens, whose continued presence in the territory is found
by him to be injurious presence to the public interest, and in the method of deporting or expelling
them, he may use such method as his official judgment and good conscience may dictate.
Third. That this power to deport or expel obnoxious aliens being invested in the political department
of the Government, the judicial department will not, in the absence of express legislative authority,
intervene for the purpose of controlling such power, nor the purpose of inquiring whether or not he is
liable in damages for the exercise thereof.
Therefore the lower court was without jurisdiction to consider the particular questions presented in
the cause, and it is hereby ordered and decreed that the writ of prohibition shall be issued, directed
to the defendant, the Hon. A. S. Crossfield, perpetually prohibiting him from proceeding in the cause
in which Chuoco Tiaco (alias Choa Tea) is plaintiff and W. Cameron Forbes, Charles R. Trowbridge,

and J.E. Harding are defendants, and to dismiss said action, as well as to enter an order dissolving
the injunction granted by him in said cause against the said defendants.
It is further ordered that a decree be entered overruling the demurrer presented in this cause, and
ordering that said action be dismissed, as well as a decree making perpetual the injunction
heretofore granted by Mr. Justice Trent.
It is so ordered, without any finding as to costs.
Arellano, C.J., and Torres, J., concur.

Separate Opinions
MORELAND, J., concurring:
The nature of this action has been fully set forth, by way of quoting the entire proceedings, in the
opinion of Mr. Justice Johnson. It is unnecessary again to present the facts. I differ, however, from
that portion of the relation of the facts in that opinion, and the conclusion drawn therefrom, which
touches the form of action commenced by Chuoco Tiaco against the Governor-General, and in
which it is asserted that "thus clearly it appears that the action was against the defendants in their
official capacity." In my judgment, the contrary, namely, that the action was against the GovernorGeneral personally for acts which he sought to perform in his official capacity, clearly appears. The
words "successors in office," as used in the complaint, refer only to the remedy by injunction and not
to the damages prayed for by reason of the expulsion. The action no less certainly is directed
against the other defendants personally.
When the case was decided in this court upon the merits, Mr. Justice Trent and myself signed the
following opinion:
I concur in so much of the opinion o f Mr. Justice Johnson, as holds that the action in the
Court of First Instance from which this controversy arises can not be maintained against the
Governor-General. With the reasons given and the arguments advanced in that opinion for
the support of that conclusion I disagree. I can not assent to the theory upon which the
opinion is framed nor to the reasons and arguments advanced in support thereof. I
understand that the action in the court below, as appears from the records of that court and
the concession of all parties interested, is one against the Governor-General personally for
acts which he assumed to perform in his official capacity. That the Governor-General acted in
the honest belief that he had the power to perform the acts complained of is nowhere
questioned. This being so, whether or not he actually had such powers is, as I view this
case, immaterial. I base my concurrence in the result solely upon the theory that the
Governor-General, in his official capacity, being one of the coordinate branches of the
Government (U. S. vs. Bull, 8 Off. Gaz., 271)1, is entitled to the same protection against
personal actions for damages by those who feel themselves aggrieved by acts which he
performs in carrying out what he honestly deems to be the duties of his office as are the
other coordinate branches of the Government. It is undoubted that neither the Legislature,
nor a member thereof is liable in damages for any act which it performs, believing that it had
the power so to act, even though it ultimately appears that such act is entirely outside of its
powers and jurisdiction and is wholly and utterly void. It is equally undoubted, in my
judgment, that neither the courts, constituting another coordinate branch of the Government,

nor members thereof, are, under similar circumstances, liable in damages.

(Bradley vs. Fisher, 80 U. S. 335; Spalding vs. Villas, 161 U. S., 481, 493, 494.) If the want of
jurisdiction was known to the court at the time it acted, another question might be presented.
There comes to my mind no good reason why the same principles of nonliability should not
be applied to the Chief Executive of the Government. Indeed the reasons and arguments of
the courts and text writers advanced to support the principle of nonliability of legislatures and
courts apply with even greater force to the Executive.
The Governor-General, in determining whether or not he has the power or jurisdiction to
perform a certain act, should be protected against personal actions against him for damages
as completely and effectively as he unquestionably is when, jurisdiction being conceded, he
honestly acts in excess thereof. There is no dissimilarity in the quality of the mental process
employed or the judgment brought to bear and exercised in arriving at a conclusion in the
two cases.
This theory does not in any way weaken the power of this court, in a proper action, to
determine the legality of all official acts once performed and the legal consequences flowing
therefrom. The necessity for such determination does not, however, arise, in this case.
To that opinion we still adhere. A thorough reexamination of the questions involved and of the
principles of law which, we believe, must be applied in their solution adds to our conviction that the
conclusions therein reached are sound and should guide the court in the disposition of the case
before it. The principles enunciated in that opinion were not, however, presented or discussed by the
attorneys, or either of them, in the extended and elaborate arguments which they made, both orally
and in writing, to this court. A motion for a rehearing having been made and the objections and
arguments of counsel having been particularly directed against the conclusions presented in our
former opinion, we deem it advisable to present here, with some elaborations and detail, the reasons
which impelled us to the conclusions reached therein.
In this opinion we discuss the subject, largely speaking, in two aspects.
First, the nature and quality of the functions exercised by the Governor-General in arriving at the
conclusion that he had the right to expel Chuoco Tiaco. Our conclusion upon this branch of the
subject is that the act was in the nature of a judicial act, the functions exercised were judicial in their
quality, and that he should have the same protection against civil liability in exercising this function
that would be accorded to a court under similar circumstances.
Second, the fundamental nature and attributes of the office of Governor-General, and whether or not
the public policy requires that there be applied to him and by his acts the same principles which
govern the liability of the members of the Legislature and of the judiciary. Our conclusion upon this
branch of the case is that the Government here is one of three departments executive, legislative,
and judicial that the office of Governor-General is one of the coordinate branches of the
Government, and that the same public policy which relieves a member of the Legislature or a
member of the judiciary from personal liability for their official acts also relieves the GovernorGeneral in like cases.
It has been settled by previous decisions of this court that the Government established in the
Philippine Islands is one of three departments legislative, executive, and judicial. In the case of
the U. S. vs. Bull2 (8 Off. Gaz., 271, 276), it is said:

Within the limits of its authority the Government of the Philippines is a complete
governmental organism with executive, legislative, and judicial departments exercising the
functions commonly assigned to such departments. The separation of powers is as complete
as in most governments. In neither Federal nor State governments is this separation such as
is implied in the abstract statement of the doctrine. For instance, in the Federal Government
the Senate exercises executive powers, and the President to some extent controls legislation
through the veto power. In a State the governor is not a member of the legislative body, but
the veto power enable him to exercise much control over legislation. The Governor-General,
the head of the executive department in the Philippine Government, is a member of the
Philippine Commission, but as executive he has no veto power. The President and Congress
framed the Government on the models with which Americans are familiar, and which has
proved best adapted for the advancement of the public interest and the protection of
individual rights and privileges. (Lope Severino vs. The Governor-General and Provincial
Board of Occidental Negros, 8 Off. Gaz., 1171.)3
The instructions of the President of the United States to the Philippine Commission, dated April 7,
1900, contain this statement:
Until the complete transfer of control (from the military to the civil authorities) the Military
Governor will remain the chief executive head of the Government of the Islands, and will
exercise the executive authority now possessed by him and not herein expressly assigned to
the Commission, subject, however, to the rules and orders enacted by the Commission in the
exercise of the legislative powers conferred upon them.
Said instructions also include the following:
Beginning with the 1st day of September, 1990, the authority to exercise, subject to my
approval, through the Secretary of War, that part of the power of government in the
Philippine Islands which is of a legislative nature is to be transferred from the Military
Governor of the Islands to this Commission, to be thereafter exercised by them in the place
and stead of the Military Governor, under such rules and regulations as you shall prescribe,
until the establishment of the civil central government for the Islands contemplated in the last
foregoing paragraph, or until Congress shall otherwise provide. Exercise of this legislative
authority will include the making of rules and orders, having the effect of law, for the raising
of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of
public funds of the Islands; the establishment of an educational system throughout the
Islands; the establishment of a system to secure an efficient civil service; the organization
and establishment of courts; the organization and establishment of municipal and
departmental governments, and all other matter of a civil nature for which the Military
Governor is now competent to provide by rules or orders of a legislative character.
The powers conferred upon the Military Governor are contained in the following order of the
President to General Merritt, dated May 19, 1998:
Though the powers of military occupant are absolute and supreme, and immediately operate
upon the political condition of the inhabitants, the municipal laws of the conquered territory,
such as effect private rights of person and property, and provide for the punishment of crime,
are considered as continuing in force, so force, so far as they are compatible with the new
order of things, until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force, and to be
administered by the ordinary tribunals, substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present occasion.

The Spooner amendment to the Army appropriation bill, passed March 2, 1901, provided that
All military, civil, and judicial powers necessary to govern the Philippine Islands . . . shall until
otherwise provided by Congress be vested in such person and the persons, and shall be
exercised in such manner, as the president of the United States shall direct, for the
establishment of civil government, and for maintaining and protecting the inhabitants of said
Islands in the in the free enjoyment of their liberty, property, and religion.
On the 21st day of June, 1901, the President, in an order appointing a Civil Governor, said:
On and after the 4th day if July, 1901, until it shall be otherwise ordered, the President of the
Philippine Commission will exercise the executive authority in all civil affairs in the
government of the Philippine Islands heretofore exercised in such affairs by the Military
Governor of the Philippines, and to that end the Hon. William H. Taft, President of the said
Commission, is hereby appointed Civil Governor of the Philippine Islands. Such executive
authority will be exercised under, and in conformity to, the instructions to the Philippine
Commissioners, dated April 7, 1900, and subject to the approval and control of the Secretary
of War of the United States. The municipal and provincial civil governments, which have
been, or shall hereafter be, established in said Islands, and all persons performing duties
appertaining to the offices of civil government in said Islands, will, in respect of such duties,
report to the said Civil Governor.
The power to appoint civil officers, heretofore vested in the Philippine Commission, or in the
Military Governor, will be exercised by the Civil Governor with the advice and consent of the
Commission.
The Military Governor of the Philippines is hereby relieved from the performance, on and
after the said 4th day of July, of the civil duties hereinbefore described, but his authority will
continue to be exercised as heretofore in those districts in which insurrection against the
authority of the United States continues to exist, or in which public order is not sufficiently
restored to enable provincial civil governments to be established under the instructions to the
Commission dated April 7, 1900.
On the 1st day of July, 1902, Congress passed an Act containing the following:
That the action of the President of the United States in creating the Philippine Commission
and authorizing said Commission to exercise the powers of government to the extent and in
manner and form and subject to the regulations and control set forth, in the instructions of
the President to the Philippine Commission, dated April seventh, nineteen hundred, and in
creating the offices of Governor-General and Vice-Governor-General of the Philippine
Islands, and authorizing said Governor-General and Vice-Governor-General to exercise the
powers of government to the extent and in manner and form set forth in the Executive Order
dated June twenty-first, nineteen hundred and one, . . . is hereby approved, ratified, and
confirmed, and until otherwise provided by law the said Islands shall continue to be governed
as thereby and herein provided.
From these citations it will be seen that the Governor-General is the executive head of the
Government; that he has full, plenary, and perfect powers to execute the laws. Obviously, therefore,
the primal necessity laid upon him, when in a given case, he believes himself called upon to act, is to
determine whether there is a law under which he may act whether, in other words, he
is authorized to act in that particular case. One occupying that high position owes a heavy obligation
to the State. A careful and conscientious man, intensely anxious to meet the full requirements of this

obligation, will inevitably dedicate his first consideration to the determination of what that obligation
is. From the viewpoint of the governors of the American States, this is not, generally speaking, a
difficult question. There conditions are settled. Society is old. Questions wholly new rarely arise. The
constitutions confer the powers generally. The statutes specify them. The source power is the
constitution. The guide is the statutes. Both are written. They constitute the governor's text-book of
power and procedure specific, definite, certain. In the Philippine Islands the situation is different.
Here, while the sources of the Governor-General's power are known, the extent and character of the
power drawn from those sources are not so clear. Many times they are extremely difficult of
ascertainment. The Government here is a new one .Its establishment is a step in ways heretofore
untrodden by the American Republic. Its history furnished no example, its law no precedent. Her
statemanships had, up to the moment, framed no model from which a colony government might be
fashioned; the philosophy of her institutions presents no theories along which action may
unhesitatingly proceed. There is no experience to guide the feet; no settled principles of colonial
government and administration to which men may turn to justify their action or dissipate their doubts.
Therefore, when, seeing, as he believed, certain Chinese aliens outraging the public conscience and
seriously threatening public security, the Governor-General, believing that the only procedure
adequate to protect the public interests was the expulsion of the offenders, began an investigation to
determine whether or not he had the power of expulsion, he was confronted with a question of very
serious intricacy and doubt. It was of the very greatest importance also. It is undoubted that he was
thoroughly convinced that he was required, by the obligation of his office, to act if the law authorized
it. He knew the strength and the justice of the proposition that a public official may not sit supinely by
and see outraged the very things that he is bound by his oath to protect without exhausting every
atom of his power and every resource of his office in an attempt to meet the situation as it ought to
be met. His primal duty, under such circumstances, would be to determine what were his powers.
The situation would imperatively demand that he ascertain what he could do. This involves, as
already said, a determination upon which even a court, learned in the law and experienced in its
constructions, would enter with hesitation and misgivings. The question to be resolved is so many
sided, its relations so intricate and numerous, the result of its determination so far-reaching,
politically as well as legally, as to require the most careful consideration, the must exhaustive
forethought. It involves not only the discussion and resolution of judicial as well as administrative
questions of the most highly important kind, but also whether this Government has any power of
expulsion whatever.
He has, then, as his initiatory resolution, to determine whether the Government of the Philippine
Islands has the power of expulsion at all. As a condition precedent to the decision of that question he
must adjudge (a) whether the Government here is in any sense a sovereign government; for the
power to expel a domiciled foreigner is distinctively an attribute of sovereignty, to be exercised,
under the uniform practice of the Government of the United States, only in exceptional cases and
then under recognized methods of procedure. If he resolve that question in the negative, he must
then decide (b) whether the Government of the United States has conferred upon the Government
here those powers of sovereignty necessary to authorize such act.
It is needless to say that the very gravest questions are involved in these determinations. I do not
stop to enumerate them or to present the serious difficulties which must be met in making them. It
suffices to say that, when he has fully resolved those questions, he is then only on the threshold of
his inquiry. Inasmuch as it might appear to one investigating the subject for the first time that the
power of expulsion might be an inherent attribute of the Executive, as in some countries it is alleged
to be, he must determine, first the fundamental nature of his executive powers. He must decide
whether, under the form of the government of which his office is the executive part, the power of
expulsion belongs to the executive exclusively, or solely to the legislative, or whether it belongs to
both, in combination with the judicial. This requires that he distinguish his executive functions from
those which are legislative, upon the one hand, and those which are judicial, upon the other a
determination most difficult in many instances, not only by reason of the considerations above set

forth, not only by reason that, while the broad distinction is clear, nevertheless, frequently, the nature
of one verges so closely upon that of the other as to render the difference between them subtle,
uncertain, and elusive.
He must, second, judge whether that power, whatever it is and whatever its extent, came
untrammeled to the Military Governor from the hands of the President, or whether he received it
modified and restricted. This determination is necessary for the reason already pointed out that the
Governor-General has only such executive power as had the Military Governor. This involves an
interpretation of the order of the President above quoted a very real judicial construction of its
legal signification.
He must decide, third, whether the acts or orders by which executive power was given to the Military
Governor and those by which that power was transferred to him do or do not, by their terms, define
that power itself, its character and extent, or specify with more or less certainty the acts which he
may perform under it. This again brings into play functions which approach the judicial so closely as
to render them practically indistinguishable.
After all these investigations, interpretations, and constructions have been completed, there still
remains to the Governor-General for solution one of the most difficult problems of all, that of
determining whether or not, irrespective of the foregoing considerations, there exists in force and
vigor, under the American regime, a law of Spanish origin with which he may adequately meet the
situation that faces him. As we have already seen, the instructions of the President of the United
States to General Merritt, dated May 19, 1898, provide that
The municipal laws of the conquered territory, such as affect, private rights of person and
property, and provide for the punishment of crime, are considered as continuing in force, so
far as they are compatible with the new order of things, until they are suspended or
supercede by the occupying belligerent; and in practice they are not usually abrogated, but
are allowed to remain in force, . . . .
We have also seen that the proclamation of General Merritt on the capitulation of the Spanish forces
in Manila also provides that
The municipal laws such as affect private rights of persons and property, regulate local
institutions, and provide for the punishment of crime shall be considered as continuing in
force, as compatible with the purposes of military government, and that they be administered
through the ordinary tribunals substantially as before occupation, but by officials appointed
by the government of occupation.
It is evident that the character and contents of these two instruments necessitate that the
Governor-General consider and decide when the laws and institutions of the United States
are so incompatible with those Spain in the Philippine Islands as to render the latter
inoperative. This involves the consideration of the broad question of when the laws, customs,
and institutions of a conquering nation are so incompatible with those of the conquered as to
render them inoperative and ineffective by the mere change of sovereignty. This is a theme
upon which writers have differed and concerning which the courts have not been free from
uncertainties and even contradictions. The field opened by this necessity is so wide, the
subject-matter so uncertain and elusive, and the principles involved so dependent for their
application upon the personal equation of the one dealing with the subject that it is extremely
easy for two men, equally honest and able, to differ widely on a result. Much depends upon
the atmosphere in which one is placed and the point of view from which the subject is seen.
The Supreme court of the United States has just held unconstitutional and void the law

relating to the falsification of an official document by a public official, a law of Spanish origin,
which had generally been supposed, and had repeatedly been held by the Supreme Court of
the Islands, to have survived the change of sovereignty. The great body of our laws is of
Spanish origin and comes to us and is enforced by us upon the theory that it has survived.
As a result, this court is continually called upon to adjudicate the question whether a given
Spanish law is still in existence. Parties are unceasingly asserting rights of property and of
person based upon such laws. These assertions are as frequently denied. It is subject over
which uncertainty continually holds sway. It was a question, however, which had to be met
and solved by the Governor-General. It could not be avoided. It confronted him squarely and
insistently, because a condition and not a theory was thrust in his face. It appears that, prior
to the conquest and occupation of the Islands by the Americans, there was in force here a
royal decree giving the Spanish Governor-General power, when certain conditions conjoined,
to expel domiciled foreigners. That decree reads:
OFFICE OF THE COLONIAL SECRETARY.
No. 607.
EXCELLENCY: In view of the proceedings relative to the consultation had by the Audiencia
de Manila with the government, through the supreme court, the latter having rendered a
report on the subject-matter thereof, which refers to deportations, the case was forwarded for
report to the political division of this office, and His majesty the King (whom may God
preserve), and in his name the Queen Regent, passing upon the report, has been pleased to
decide that:
1. According to the laws 18, 19 and 20, title 8, book 7; 35, title 15, book 2, title 4, book 3; 61,
title 3, book 3, the royal cedula of May 19, 1819, and the special royal order of April 20,
1881, Governor-General of the Philippine have power to determine the legal expediency of
the deportations which they may deem necessary for the preservation of public order.
2. The record in any such cause commenced by the Governor-General must be transmitted
to the supreme government of the nation, in the form and manner provided by the Laws of
the Indies, in order that it may take cognizance of the reasons which he may have for
ordering the deportation.
3. The kind and form of justification which should appear in the record is left to the
reasonable discretion of the Governor-General.
4. The Governor-General may deport any person who, had he been prosecuted in the courts
of justice under a criminal charge, would have been pardoned, as expressed in law 2, title 8,
book 7, of the Recompilacion of the Laws of the Indies.
5. With respect to such persons as we tried and acquitted by the courts of justice, if the
charges, the reason for the deportation, were the subject-matter of the prosecution, then,
bearing in mind the sanctity of a matter which has become res adjudicata, deportation by the
Governor-General is improper.
6. These deportations must be decreed by the Governor-General in person, and not by
his tenientes andauxiliares (lieutenants and assistants), in accordance with law 19, title 8,
book 7, of the Recompilation of the Indies.

7. The laws in force in the Philippines relative to deportations are those of the Indies before
mentioned, so that the lack of a faithful and exact compliance with requisites prescribed
therein for the exercise of such power constitutes the crime defined in articles 211 and 212 of
the Penal Code in force in the Philippines.
8. The right to appeal to the audiencias, granted by royal order of May 25, 1847, from the
action taken by the Governor-General, was abolished by the decree of November 28 of the
same year, which provided in article 7 that orders issued by the Governor-General in matters
pertaining to government or to the exercise of his discretional powers. can only be revoked
by the Supreme Government.
The foregoing by this royal order is communicated to you for your information and the
consequent effects. May God preserve Your Excellency many years, Madrid, August 2,
1888. (Signed) Ruiz y Capdepon.
To the Governor-General of the Philippine Islands:
Comply with and observe the above royal order and issue to the provincial chiefs the
necessary orders thereunto pertaining. (Signed) Weyler.
The question was thus squarely up. Did that law survive the American occupation? An answer must
be given by the Governor-General, if he believed his duty to the State required him to act if he had
the power. Once more he must interpret, construe, and determine; and in doing so he must tread
legal mazes as intricate and bewildering as ever were trodden by a judge at court.
Having so far considered the processes which the mind of the Governor-General must pass through
and the determinations which he must make in arriving at a conclusion as to whether he may or may
not act in the case given, it is now necessary to inquire what is the nature of those processes and
determinations. Evidently they involve the element of discretion of judgment as a result of
investigations a conclusion as to the existence of a law, an authority, a power, which lies at the
very doorway of his activities. His judgment operates in a field over which he has general and
exclusive jurisdiction and embraces a subject concerning which he must judge alone. It includes also
a determination as to the character, quality, and extent of the person against or in reference to whom
that power is to operate. Every act of enforcement of whatever law, real or imaginary, must
necessarily an inevitably be preceded by two determination. First, is there a law at all; and, second,
if there is, what is meaning of it; what is its interpretation? These determinations must always be
made. They were laid upon the Governor-General by the very nature of his functions an executor
of law. It is evident, therefore, in view of these considerations, that such functions involve much that
is judicial. The executive and judicial functions here merge and overlap each other to a conspicuous
extent; and it becomes at once apparent that the functions exercised by the Governor-General in
reaching a conclusion to act in given case, and especially in the case before us, were, in their
nature, essentially judicial. If a judge had done the things which the Governor-General did in arriving
at this conclusion, his act and determination would unquestionably have been judicial. Are they any
the less so, in their essential nature, because a Governor-General and not a judge was the ]actor?
The methods pursued by the two, Governor-General and judge, are not all different. The subjectmatter is precisely the same. The mental processes involved are identical. The discretion used is the
same. The objects in view are wholly similar the application of a public law to personal
misconduct; the protection of the public against the malicious activities of a corrupt individual.
It now becomes necessary to determine what would be the civil responsibility of a judge acting upon
the same questions and making the same determinations involved in the activities of the GovernorGeneral complained of in this suit. The reason for this necessity is found in the analogy which I

suppose to assert between the civil liability of a judge performing judicial functions and of the
Governor-General exercising essentially the same attributes. The result of that analogy is that if a
judge, performing the acts complained of, would not be civilly liable, then the Governor-General is
not.
I, therefore, proceed to discuss the civil liability of judges. I deal with it in three aspects: First, where
the judge acts within the limits of his jurisdiction, and, second, where he acts in wholly without
jurisdiction, and third, where he acts in "excess of jurisdiction." This discussion of the subject in such
threefold aspect is rendered necessary by reason of the claim made in this case that the GovernorGeneral, in whatever he did or brought about in the expulsion of the complainant and his
companions, was wholly without authority, power, or jurisdiction and for that reason he is civilly
responsible for whatever damages such illegal acts may have caused.
My position in the discussion of the question is that a judge may, in reality, act wholly without power,
authority, or jurisdiction and still not be civilly liable; that jurisdiction ought not to be, and can not be,
a vital a controlling element in determining his liability; and that, if the question resolved by the
judge be one whose determination required the exercise of the judicial functions, he is not civilly
liable for damages caused by an act performed in pursuance of such determination even though he
acts wholly without jurisdiction. I further contend that the doctrine making jurisdiction the test of
liability is illogical and unsound, and that the doctrine of excess of jurisdiction, carried to its logical
conclusion, is a complete refutation of the original theory.
It is a universal statement of text writers that "no person is liable civilly for what he may do as judge
while acting within the limits of his jurisdiction." This is also a settled principle of law as applied by
the courts. This doctrine is so thoroughly established that no authority need be cited to sustain it. It is
also universally asserted by the text writers, and maintained by many courts, that jurisdiction is the
sole and exclusive test of judicial liability, and it is affirmed that a judge is always civilly liable if he act
without jurisdiction. Mr. Cooley in his work on Torts (2nd ed., p. 486) says:
Every judicial officer, whether the grade be high or low, must take care, before acting, to
inform himself whether the circumstances justify his exercise of the judicial function. A judge
is not such at all times and for all purposes; when he acts he must be clothed with
jurisdiction; and acting without this, he is but the individual falsely assuming an authority he
does no possess. The officer is judge in the cases in which the law has empowered him to
act, and in respect to persons lawfully brought before him; but he is not judge when he
assumes to decide cases of a class which the law withholds from his cognizance, or cases
between persons who are not, either actually or constructively, before him for the purpose.
Neither is he exercising the judicial function when, being empowered to enter one judgment
or make one order, he enters or makes one wholly different in nature. When he enters or
makes one wholly different in nature. When he does this he steps over the boundary of his
judicial authority, and is as much out of the protection of the law in respect to the particular
act as if he held no office at all. This is a general rule.
This same rule, it is alleged, is laid down by many authorities, among them being: Marshalsea case
(10 Coke, 68b; 2 Adol. and E (N. S.) 978); Piper vs. Pearson (2 Gray, 120); Van Ky., 27);
Bradley vs. Fisher (13 Wall., 335); McCall vs. Cohen (16 S. C., 445); Bigelow vs. Stearns (19 Johns.,
39); Vosburg vs. Welch (11 Johns., 175); Terryvs. Wright (9 Colo. App., 11); Lange vs. Benedict (73
N. Y., 12); Austin vs. Vrooman (128 N. Y., 229).
When, however, it became necessary to put this rule into practical operation, to apply it to a
particular matter, it was found that it did not meet the necessities of the case. Its application did not
work justice. It was found imperfect and inadequate. It was seen to be lame and halt. It condemned

in one cases and relieved in another when there existed no real distinction between them, either in
logic or justice. While this was not admitted, perhaps, in words by the courts, it was, nevertheless,
seen and felt. Accordingly, laboring under the pressure of these conditions and to avoid the
anomalous results flowing from a rigid application of the theory, they announced the doctrine of
"excess of jurisdiction."
This doctrine holds "that judges of superior and general jurisdiction are not liable to civil actions for
their judicial acts when such acts are in excess of their jurisdiction." (Ross vs. Griffin, 53 Mich., 5 ;
Grove vs. Van Duyn, 44 N. J. L., 654; Randall vs. Brigham, 7 Wall., 523; Jones vs. Brown, 54 Ia., 74;
Lange vs. Benedict, 73 N. Y., 12: Yatesvs. Lansing, 5 Johns., 282; Robertson vs. Parker, 99 Wis.,
652; Willcox vs. Williams, 61 Miss., 310; Calhoun vs.Little, 106 Ga., 336; Miller vs. Seare, 2 W. Bil.,
1141; Ackerly vs. Parkinson, 3 M. and S., 411; Austin vs. Vrooman, 128 N. Y., 229; root vs. Rose, 6
N. D., 575; Webb vs. Fisher, 109 Tenn., 701; U. S. vs. Bell., 135 Fed., 336; English vs. Ralston, 112
Fed., 272; 85 Fed., 139 Bradley vs. Fisher, 13 Wall., 335.)
As before stated, the courts, in laying down the doctrine that a judge is exempt from civil liability if he
acts within his jurisdiction, also assert at the same time that he is liable if he act without jurisdiction.
In the same way, strange to say, the courts who lay down the doctrine that a judge is not liable civilly
even if he act in excess of jurisdiction, also assert that he is liable if he act without jurisdiction. In
other words, whether it be a court which asserts the doctrine of nonliability with jurisdiction or
whether it be one who asserts the doctrine of nonliability with excess of jurisdiction, they all concur in
asserting liability in case the court acts with lack of jurisdiction. T o put it in a different way: The
decisions make no distinction between cases where the court acts with jurisdiction and those where
he acts in excess of jurisdiction; but they do make a crucial distinction between those cases where
he acts in excess of jurisdiction and those in which there is a lack or want of jurisdiction. It is
accordingly evident, under this judicial conception, that, so far as the civil liability of the judge is
concerned, acting completely with jurisdictionand acting completely in excess of jurisdiction mean
exactly the same thing; while acting completely in excess of jurisdiction and acting completely
without jurisdiction mean exactly opposite things. This inference is the inevitable one because the
judge is entirely exempt if he act within his jurisdiction, and he is wholly immune if he act inexcess of
jurisdiction; but if he act without jurisdiction, he is fully liable.
I confess my inability to see how two conditions so different in their nature and characteristics as
acting with jurisdiction and acting in excess of jurisdiction can be held to produce the same result
having in mind always the proposition universally asserted by the courts to be the basis of that
difference in liability, that the nature of the judge's act, i.e., whether it makes him civilly liable or not,
depends entirely on jurisdiction. That the jurisdiction and excess of jurisdiction are conceptions are
wholly different is perfectly evident from the standpoint of language alone. That their legal nature is
entirely different will appear when we discuss want of jurisdiction and compare it with excess of
jurisdiction.
If "excess of jurisdiction" means anything different from "want of jurisdiction," under the doctrine of
excess of jurisdiction as it is asserted, it lies not at all in the essential nature of those conditions but,
rather, in the accidental circumstance stated in the decisions, that the court, having once acquired
jurisdiction of the subject-matter and the parties, any act of his during the proceedings which is
beyond or outside of real powers is in "excess of jurisdiction merely, and has a different quality from
that which the same act would have if there had been no jurisdiction in the first instance. In other
words, jurisdiction having once been present in the cause, it continues to shed its beneficent
influence over the court and his acts, no matter where he goes or what he does. This is the
distinctive feature of the doctrine of excess of jurisdiction as that doctrine is laid down. Jurisdiction
once present is, under that doctrine, the touchstone of nonliability. As a necessary consequence, the
court who lacks this protective genius of jurisdiction may lose his fortune and perhaps his liberty,

although he may perform exactly the same acts as he who is wholly excused because
he exceeds his jurisdiction. It becomes necessary to inquire, therefore, in what way of excess of
jurisdiction differs essentially from lack of jurisdiction, for, if they produce results so violently in
opposition, there must be a wide and essential difference between them a difference wholly unlike
that set forth in the decisions.
And first, as to excess of jurisdiction:
To exceed jurisdiction is to go outside of it; to pass beyond its limits. To exceed is "to go beyond; to
go too far; to pass the proper bounds or measure." "Forty stripes he may give him and not exceed."
Excess is "the state of going beyond limits." Excess of jurisdiction is the state of being beyond,
i.e., outside the limits, of jurisdiction.
This is the only definition of excess of jurisdiction which the term will permit. This is precisely the
definition given in the very decisions which lay down the doctrine, One of the first cases of in the
United States to present the doctrine of excess of jurisdiction was that of Lange vs. Benedict (73 N.
Y., 12). In that case it appeared that the defendant presided as judge at a regular session of the
United States Circuit Court, before which plaintiff was tried and convicted of a statutory offense
punishable by a fine or imprisonment. He was sentenced by the defendant to pay a fine and to be
imprisoned. Plaintiff paid the amount of the fine to the clerk of the court, who paid it into the United
States Treasury. The plaintiff was also imprisoned. A writ of habeas corpus was granted by and
returned into said court during the same term, and, on such return, defendant, holding the court and
as judge thereof, vacated and set aside the sentence, and resentenced the plaintiff to be imprisoned
for the term one year. Under this sentence the plaintiff was imprisoned. Such proceedings were
subsequently had that the Supreme Court of the United States (Ex parte Lange, 18 Wall., 163, 176)
adjudged the resentence to have been without authority and void. In deciding the case on the
proceedings mentioned the Supreme Court of the United States said (Ex parte Lange, supra):
We are of the of the opinion that when the prisoner, as in this case, by reason of a valid
judgment, had fully suffered one of the alternative punishments to which alone the law
subjected him, the power of the court to punish father was gone. That the principle we have
discussed then interposed its shield, and forbid that he should be punished again for that
offense. The record of the court's proceedings, at the moment the second sentence was
rendered, showed that in that very case, and for that very offense, the prisoner had fully
performed, completed, and endured one of the alternative punishments which the law
prescribed for that offense, and had suffered five days' imprisonment on account of the other.
It thus showed the court that its power to punish for that offense was at an end. Unless the
whole doctrine if our system of jurisprudence, both of the Constitution and the common law,
for the protection of personal rights in that regard, are a nullity, the authority of the court to
punish the prisoner was gone. The power was exhausted; its further exercise was prohibited.
It was error, but it was error because the power to render any further judgment did not exist.
Commenting on this same case the Supreme Court of the United States in the case of Ex
parte parks (93 U. S., 23) said:
But after the thorough investigation which has been given to this subject in previous cases,
particularly those of Ex parte Yager (8 Wall., 85( and Ex parte Lange (187 id., 163), it is
unnecessary to pursue the subject further at this time. The last-mentioned case is confidently
relied on as a precedent for allowing the writ in this case. But the two are totally unlike. In Ex
parte Lange we proceeded on the ground that, when the court rendered it second judgment,
the case was entirely out of his hands. It was functus officio in regard to it. The judgment first

rendered had been executed and satisfied. The subsequent proceedings were, therefore,
according to our view, void.
In spite, however, of the fact that the act of the Supreme Court of the United States had held that the
act of the court in resentencing plaintiff was absolutely without jurisdiction and void, nevertheless,
the court of appeals of the State of New York, deciding the action against the judge for damages
(Lange vs. Benedict, supra) after the rendition of the judgment of the Supreme Court of the United
States on the question of the resentence, said, in giving a definition of the phrase "excess of
jurisdiction:" "The act of the defendant was then one in excess of or beyond the jurisdiction of the
court." "He had jurisdiction of the cause originally. That jurisdiction had ceased. His further acts were
beyond or in excess of his jurisdiction." "If it be admitted that at the instant of the utterance of that
order, jurisdiction ceased, as is claimed by the plaintiff, on the strength of the opinion in Ex
parte Lange (supra), as commented upon in Ex parte Parks (93 U. S., 18), and that all subsequent to
that was coram non judice, and void; still it was so, not that the court never had jurisdiction, but that
the last act was in excess of jurisdiction.
If the intention of the New York in that case was to use the phrase "excess of jurisdiction" in the
sense that there was an essential and vital distinction between it and "want of jurisdiction," a
distinction so essential and vital as to warrant liability in the one case and nonliability in the other, I
am in entire disagreement with its conclusion. If I were unsupported in my disagreement, I should
hesitate long and doubt much before I differed with authority so eminent. But the Supreme Court of
the United States, as shown by the quotation given, has held in that very casethat the district court,
in resentencing Lange, acted with complete and utter absence of jurisdiction. I am in perfect accord
with the use of the phrase "excess of jurisdiction" when it describes a particular legal condition
which, in some of its colorings, some of its accidental or incidental features, is somewhat different
from the legal condition "absence of jurisdiction." But I am not in accord with its use if it is meant to
describe something which is essentially different in quality, that is, a different thing, from excess of
jurisdiction. If the difference meant to be shown is, in its nature, the same difference which is
indicated between two horses when it is said that one is black and the other bay, I agree. But if it is
meant thereby to indicate that one is a horse and the other a cow, I disagree. The two legal
conditions are essentially and really identical. Their coloring may be different but they are the same
animal. The question before us is not whether there is such a difference in markings that the two
conditions ought to be given different names as a matter of convenience, but, rather, is there a
difference so important, so essential, so vital that we may established upon that difference as an
eternal foundations a just principle of law which wholly saves in the one case and utterly destroys in
the other. The real and practical question for us "What does that difference amount to? What results
may it justly produce to the parties and to the court? What results must itnecessarily produce.
In the case of Clarke vs. May (2 Gray, 410) a justice of the peace, having jurisdiction of the cause,
summoned a person to appear before him as a witness therein. The person disobeyed. The case
was tried and ended. Thereafter, the justice issued process to punish for contempt the person who
had disobeyed his subpoena. He was arrested, fined, and not paying, was committed. It was held
and jurisdiction of magistrates in such cases was only incidental and auxiliary to the trial of the cause
in which the witnesses were summoned; and could not be legally exercised, except during the
pendency of such cause; that after its final disposition by a judgment, the authority to punish such
contempt ceased, and that Clarke was therefore illegally committed. . . . Although he had jurisdiction
of the subject-matter, he was empowered by law to exercise it only in a particular mode, and under
certain limitations. having disregarded these limitations, and exercised his authority in a manner not
sanctioned by law, he has been guilty of an excess of jurisdiction, which renders him liable as a
trespasser to the injured party.

In the case of Gordon vs. Longest (16 Peters, 97), where the defendant took the proper steps, under
a statute which required a State court under certain conditions to transmit the cause to the United
States courts, to remove an action brought against him in the State court to the United States court,
and, where the State court persisted notwithstanding such steps, in trying the cause, the court said:
This being clear in the language of the above act, it was the duty of the State court to proceed no
further in the cause. And every step consequently taken, in the exercise of a jurisdiction in the case,
whether in the same court or in the Court of Appeals, was coram non judice.
The case of Austin vs. Vrooman (128 N. Y., 229) is one very similar to the one last mentioned. There
the defendant, a justice of the peace, caused the plaintiff to be arrested on a charge of supplying
diluted milk to a butter factory. Plaintiff, on being arraigned, pleaded not guilty, waived preliminary
examination and offered bail for his appearance before the next grand jury. The offer was overruled
by the defendant. Her was tried, found guilty, and sentenced to pay a fine and to be imprisoned until
paid, not to exceed ninety days. Pursuant to such sentence he was confined in the county jail. The
statute making the act of plaintiff a crime provided that when a person charged with a violation of the
Act should be brought before a justice of the peace, he should have the right to elect to be tried by a
jury after indictment, and on such election the justice could not proceed to try him but could only hold
him to a court having authority to inquire, by intervention of a grand jury, into offenses triable in the
county. In this case the court said, after referring to the case of Gordon vs. Longest (supra), in which
it was held that, in a case very similar in principle to the one under consideration, any action taken
by the State court after refusing to transmit the cause before it to the United States court was wholly
void:
Here in the course of proceedings which he was forced to entertain, and in the case of one
over whose person he has properly acquired jurisdiction, the justice is confronted with the
necessity of deciding a question depending upon the construction to be given to a statute,
and that question must be decided by him one way or the other before he can take another
step in those proceedings which, up to that moment, have been legally and property pending
before him and over which he has had full and complete jurisdiction. It seems plain that his
decision upon the question is one in the course of a proper exercise of the jurisdiction first
committed to him, and that his error in deciding that he had jurisdiction to proceed was an
error of judgment upon a question of law, and that he is therefore, not responsible for such
error in a civil action. It is unlike the case where a justice of the peace proceeded to try a civil
action for assault and battery. (Woodhard vs. Paine, 15 John., 492). The justice never had in
such case obtained jurisdiction over the subject-matter and he could not obtain it by deciding
that he had it. The case falls under the principle of law that where a judge never has had
jurisdiction over the subject-matter, he acts as a trespasser from the beginning in assuming
it, and his decision that he has it is no protection to him. I know it was stated inGordon vs.
Longest (16 Peters, 97), in a case where the defendant took the proper steps to remove an
action brought against him in the State court to the United States court and where the judge
of the State court persisted, notwithstanding those steps, in trying the case, that every step
subsequently taken by the State court in the exercise of jurisdiction was coram non judice.
Yet in such a case the question is put whether the State judge would be liable for proceeding
with the case in the honest exercise of his judgment.
Being thus informed of the judicial meaning of the phrase "excess of jurisdiction," it becomes
necessary, second, to determine what is meant judicially by the expression "lack of jurisdiction." An
example frequently given by the courts to express what is meant by lack of failure of jurisdiction is
that of a justice of the peace taking cognizance of and trying a civil action for assault and battery.
Over such actions jurisdiction of the peace. In fact, the law expressly prohibits them from taking
cognizance of such actions. In such case, the justice never obtains jurisdiction over the subject-

matter. He acts wholly without any authority or jurisdiction. A case illustrating want of jurisdiction is
that of Piper vs. Pearson (2 Gray, 120). There a justice of the peace of the county of Middlesex tried
an individual named Russ for an offense committed within the district of Lowell. By statute said
justice had no power or authority to take cognizance of offenses committed "within the district of
Lowell." The court said: "In the case at bar, the defendant had no more power to entertain jurisdiction
of the complaint against Russ any other individual in the community." If a magistrate acts beyond the
limits of his jurisdiction, his proceedings are deemed to be coram non judice and void." "If he has no
jurisdiction of a cause, he can not sit as a magistrate to try it, and is entitled to no protection while
acting beyond the sphere of his judicial power. His action is thus extrajudicial and void."
This case, however, is not one which ought fairly to be taken as generally illustrative of that class
wherein the court acts wholly without jurisdiction, inasmuch as here whether or not the court had
jurisdiction was a question] of fact. Whether or not the crime was committed "within the district of
Lowell" was not a question of law. Nevertheless, the same principle would have been involved if
there had been a dispute as to the district within the crime was actually committed and the court had
decided that question upon conflicting evidence.
In the case of Bradley vs. Fisher (13 Wall., 335), the court gave the following as illustrating a
condition of complete lack of jurisdiction.
Thus, if a probate court, invested only with authority over wills and the settlement of estates
of deceased persons, should proceed to try parties for public offenses, jurisdiction over the
subject of offenses being entirely wanting in the court, and this being necessarily known to its
judge, his commission would afford no protection to him in the exercise of the usurped
authority.
Having seen from the adjudicated cases the meaning given to the phrases "excess of jurisdiction"
and "want of jurisdiction," it remains to note what has been judicially declared to be the difference
between them. The case last cited contains a statement of that difference. Immediately following the
quotation taken from that case and set forth above appear these words:
But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over
offenses committed within a certain district, should hold a particular act to be a public offense, which
is not by the law made an offense, and proceed to the arrest and trial of a party charged with such
act, or should sentence a party convicted to a greater punishment than that authorized by the law
upon its proper construction, no personal liability to civil action for such acts would attach to the
judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court
held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction
over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions
which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the
court held by him, or the manner in which the jurisdiction from liability which obtains for errors
committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person,
applies in cases of this kind, and for the same reasons.
This excerpt illustrates the difference between excess of jurisdiction and lack of jurisdiction as it is
universally presented by text writers as well as by courts.
The suggestions made after the discussion of the case of Lange vs. Benedict are, in principle and in
effect, applicable to the cases just presented. Nothing could be clearer than that the court in Clarke
vs. May, acted wholly without jurisdiction. It is of no consequence what it is called, whether excess of
jurisdiction or failure of jurisdiction; it still remains the same thing. The court itself said so when it
used the words "after its final disposition by a judgment, the authority to punish such contempt

ceased, and that Clarke was therefore illegally committed." The case of Austin vs. Vrooman is very
like that of Gordon vs. Longest, wherein the Supreme Court of the United States held that the lower
court acted wholly without jurisdiction in retaining the cause before it and proceeding to its
disposition.
Being now fully informed of the meaning of the two legal conditions, "excess of jurisdiction" and "lack
of jurisdiction," and also of the difference between them as presented in the decisions of the courts, I
now desire to consider whether this difference is worthy in any manner of effecting the exactly
opposite legal results which it is alleged they produce. If they produce results so unlike, they should
be so different in their essential natures as to be plainly and easily distinguishable. Yet in spite of
that, after a careful consideration of every adjudicated case upon the subject within my reach, I have
been forced irresistibly to the conclusion that there is not, really and intrinsically, the slightest
difference between them. The alleged difference is a fiction of law, pure and simple, born of the
necessity to escape the logical but wholly unjust and indefensible consequences of a rule of liability
based on no sound principle of law and incapable of defense upon any theory of logic or justice.
While we have seen from the cases cited the different circumstances which attended the courts up to
the time when they performed the acts complained of, namely, that the one never had jurisdiction at
all and the other had it at first but abandoned it later, we have nowhere seen in those authorities nor
why they should produce results so violently in opposition. We have also seen from those cases that
excess of jurisdiction is the estate of beingbeyond the limits of jurisdiction, i.e., outside of the power
and authority conferred so far outside indeed that the act of the court is coram non judice and
void. (Gordon vs. Longest, 16 Peters, 97; Ex parte Lange, 18 Wall., 163; Clarke vs. May, 2 Gray,
410; Ex parte Park, 93 U. S., 23.) We have also noted from those decisions that the only
characteristic of excess of jurisdiction, the quality and the only quality which distinguished it from
lack of jurisdiction, that which gave it its peculiar and distinctive virtue, was that, in excess of
jurisdiction the court had jurisdiction at the beginning of the cause, but lost it later; whereas in lack of
jurisdiction the court never had jurisdiction at all.
Now, if a court is really outside of the limits of his jurisdiction, what difference does it make, as to his
liability for subsequent acts, when he arrived there? Ought the time when he finds himself outside to
have any significance whatever? Should the fact that he was outside at the beginning of the cause,
instead of when it had run half of its course or more, have any force or effect? Is the judge who was
never inside the jurisdictional inclosure any more outside of it than he who, having once been within,
voluntarily steps wholly outside? Both being completely outside, is one in worse position, legally or
morally, than the other? Does the mere fact that the one had never been inside necessarily make
him a greater malefactor than the other who comes as completely out, having once been in ? Ought
the legal consequences of their acts to be different when both are acting from exactly the same
basis, viz, outside of their authority? One who steps from his house into the street is as much
outside the structure as though he had never entered it; and while there, he is as unprotected from
the elements as though he had never had a roof over his head. Although he may return to his house
and enjoy again its shelters and comforts, still he can never change the fact that he once stood
unprotected in the street, that the changing wind had once buffeted him as it willed, that the storms
had once drenched him to the skin, and that the frost had once bitten him to the bone. He who owns
a million of money and throws it into the sea remains in as penniless a poverty as he who never
owed a dollar in all his life. The court who, having once been clothes in the garment of jurisdiction,
divests that garments, stands forth as judicially naked as he who had never robed with the
vestments of authority. So, the court that once had jurisdiction of a cause and divests that power by
his own act stands thereafter as bereft of judicial authority as though he had never acted under
sanction of the law. As a matter of language, that is the only meaning;" as a matter of fact, that is the
only definition claimed for it.

I am fully aware that a judge of a court which acts wholly without jurisdiction is, in a sense, a usurper.
I know that a judge who proceeds in complete absence of jurisdiction, really and effectually by such
act, makes a law to fit the case. In other words, he legislates. I admit that to permit a judge thus to
make a law and then to adjudicate it also is to permit a approach to tyranny. I am fully aware that this
is the essence of the argument against the immunity of the judge who thus acts. It must not be
forgotten, however, that we are discussing whether there is an essential difference between lack of
jurisdiction and excess of jurisdiction. If therefore, we find that there is fully as much tyranny in the
one as in the other , what matters it how much tyranny there may be in lack of jurisdiction? The cry
of tyranny there may be in lack of jurisdiction will be effectually stopped if it appears that acting in
excess of jurisdiction, the thing which is permitted by the courts wholly to excuse effects the same
result. That the one is as tyrannical as the other can not be doubted. A judge, having by law general
jurisdiction criminally, who declares a state of facts presented to him to be a crime within the
provisions of that law, when in reality it is not a crime at all, creates a law as distinctively and
completely as does the judge who decided that there is a law giving his jurisdiction criminally, when
in fact no such law exists. In such case, he declares a crime to exist when it really does not. To
enable a court to declare an act a crime, there must be a law making it a crime. To declare an act a
crime when there is no law making it such, is, so far as that particular case and all others like it are
concerned, to make a law by judicial fiat. What signifies it that the court has jurisdiction of all
larcenies if he declares an act a lacerny which in truth and reality is not? The fact that he has
jurisdiction of all lacernies none the less makes his erroneous act the creation of a new law. What
does it signify that hr once had jurisdiction when he thus, by his naked fiat, makes criminal a act
otherwise legal and moral, and thereby convicts and imprisons an innocent man in violation of the
law of the land. He could go no farther, could do no more if he acted wholly without jurisdiction from
the beginning, Of what significance is it that in the one case he acts in excess of jurisdiction and in
the other without jurisdiction when he does exactly the same thing and produces exactly the same
result in both cases?
We have already seen that the only difference which any court or text writer has been able to point
out between the two cases is the fact that in case of excess of jurisdiction the court had jurisdiction
of the subject-matter at the beginning whereas in the other case jurisdiction was never present at all.
The only use which courts and text writers have made of that difference, the only use in fact that
could possibly be made of it, is that, having jurisdiction of the subject-matter, the court then has the
power to determine whether or not a given set of facts presented to him to induce his action falls
within his jurisdiction; whereas, in the case of failure of jurisdiction there being in fact no law
conferring powers, the court had no power or authority to determine anything whatever. It is urged
also than an indispensable prerequisite of the effective administration of justice is that a judge,
having jurisdiction, be allowed to decide whether a given set of facts is within the law by which his
jurisdiction is conferred. But is it any more necessary and essential that he be allowed to decide that
question than it is that he be allowed to determine whether he has any power at all in the premises?
Is it more essential for him to be allowed to decide whether a certain set of facts is or is not within his
powers than it is to allow him to determine whether or not he has powers? Is it any more an
inevitable prerequisite that he be permitted to determine theextent of his powers than that he be
allowed to decide whether he has powers? If he is a court, that very fact makes it necessary to
determine what his powers are. To do that he must not only determine what the laws are and what
they mean, but he must also determine whether there is a law. It is sometimes a very much more
difficult question to determine whether there is any law at all than it is to decide what the law means
when its existence is admitted. But, comes the suggestion, the court in such cases having once had
jurisdiction of the subject-matter "no personal liability to civil action for such acts(in excess of
jurisdiction) would attach to the judge, although those acts would be in excess of his jurisdiction or of
the jurisdiction of the court held by him, for these are particulars for his judicial consideration, . . .
(Bradley vs. Fisher, supra.) This suggestion may be answered in two ways:

It means nothing to say that the law required the lower court to act upon the question before it, it
having jurisdiction of the cause at the time and it already having proceeded therewith to the point
where it was confronted with the question concerning which it erred. Exactly the same thing, in effect
and in principle, may be said of the court which proceeded to take cognizance of a cause in entire
absence of authority to do so. For, the law also requires a court to act whenever a question is
presented to it, no mear if it be one over which it has no power or authority whatever. Law and
necessity alike compel to him. If he have no jurisdiction or authority, he must, nevertheless, act. He
must declare he has not and refuse to proceed. But the point is, he must act, he must decide, he
must adjudicate; and he must do so whether the question of his jurisdiction be clear or doubtful. In
both cases, excess of jurisdiction and failure of jurisdiction, the courts are confronted with exactly the
same necessity, each must act. The question confronting one court, viz, whether it has jurisdiction or
not, may be much more doubtful and far more difficult of solution than that which faces the other. Yet
one is liable and the other not. I have looked in vain for a valid or convincing reason why, both being
in error, the judge of one court should be destroyed and the other saved.
This suggestion also contains an admission rather than an argument an admission which
destroys absolutely the theory that the crucial test in determining the civil liability of a judge is that of
jurisdiction. This suggestion admits that the thing which excuses is not jurisdiction, but judicial action;
not jurisdiction, but the exercise of the judicial function; not jurisdiction, but judicial consideration;"
and that the only reason why the one excuses and the other does not is the opportunity which the
former furnishes for the use of the judicial faculty. We must conclude, therefore, since it is not
jurisdiction, but judicial action, which excuses, that whenever and wherever a court exercises the
judicial function, he will not be personally liable civilly for the result of his action, and this utterly
regardless of whether he ever had jurisdiction or not. and that is precisely what i am contending for. I
regard the doctrine of jurisdiction as counter to that public policy which lies at the base of and is the
sole and whole reason for the immunity of judges from civil liability. That public policy demands that
a judge shall be protected when he is a judge, not when he has jurisdiction. He is a judge when he
acts like a judge; that is, when he acts judicially. All that public policy requires in order to extend its
perfect protection over the judge is that the question in which the error is made shall be a judicial
question. In other words, it is the nature of the question involved which is transcendentally important,
and not the position in which the judge finds himself legally, before, at the time of, or after his error.
The question is "What kind of question were you deciding when you made that error?" not "what was
your position before or after you made it?" It is, it can be of no consequence whatever whether there
be a failure of jurisdiction or excess of jurisdiction. Is the question for determination one which
requires the exercise of judicial functions for its resolution? If it is then that is an end of the matter of
liability, utterly irrespective of jurisdiction. An error by which a court induces itself to act wholly
without jurisdiction is an error of law, an error of judgment after consideration, of exactly the same
nature as that which induces a court to act in excess of jurisdiction. It is an error of judgment as to
whether he has any power at all in the premises. It is an erroneous determination of a question
which, by virtue of the fundamental constitution of his office, is inexorably forced upon him for
determination as his very first act in every case. Public policy, indeed, public necessity, demands that
he act, if he is judge. The safety, stability, and perpetuity of the State and its institutions imperatively
require him to act. Therefore, being thus driven to act, and his first act being necessarily and
inevitably to determine whether his authority comprehends the subject-matter presented to him, can
it possibly be true that public policy, the very force that drove him to act, will punish him for such
action if he has exercised the very functions with which that public policy had endowed him? I am
aware that it may be said that public policy does not protect those who act wholly without authority.
But my contention is that he has authority. The fact that he is a judge means nothing else. That one
has been named a judge is no idle thing. It is to be presumed that he has some powers, that some
authority attaches to the office, or it would not have been created. As a judge he has responsibility of
the most solemn and important character. He has duties correspondingly solemn and important. By
far the greatest and most important of these is to determine what those powers are. But this is
simply the determination of the question of jurisdiction. This is, as we have seen already, a judicial

determination of the purest character. If he determines that question wrongly and proceeds
thereafter to act, he acts wholly without jurisdiction. But is he more guilty or culpable than the judge
who, with equal error, determined a similar question of jurisdiction but at a different period of the
cause? Is it possible that one can be appointed to one of the highest and most august positions in
the gift of man, and still not be able to determine what he may do without subjecting himself to the
risk of financial ruin, and may happen, of imprisonment? If so, his office is not only a monstrous
farce, but is also a thing which deserves, as it certainly will receive, the contempt and the jeers of
mankind. I repeat that a judge acts judicially as purely and perfectly when he is determining, at the
very inception of the proceeding, the question of whether or not he has any jurisdiction whatever in
the premises as he does when, later in the case, he decides what the extent of that jurisdiction is.
That is a judicial determination as clearly and unmistakably as would be his decision that A was
entitled to a judgment against B only of a very much more fundamental character. So that, if it is
the use of the judicial function which absolves, why should the one be excused with the respect of
the community and the other condemned with ruin and disgrace? But, comes the reply, a judge id
not a judge if he have no jurisdiction; and he can not exercise judicial functions unless he is a judge.
Therefore, if he have no jurisdiction he can not exercise judicial functions. Not being able to exercise
judicial functions, he cannot, as a necessary consequence, be excused from liability, inasmuch as
immunity from liability springs solely from the exercise of such functions. But that logic is fatally
defective. Its major premise, namely, that if he have not jurisdiction a judge is not a judge and can
not, therefore, exercise judicial functions, is wholly false? How is he to know whether he has
jurisdiction or not? By what process does he determine whether or not he has any power at all?
Does that determination come to him by inspiration? Is it handed to him ready-made? How does he
arrive at the conclusion that he has jurisdiction or that there is a complete failure of it? Why does he
arrive at one of these conclusions and not the other; and why does he not arrive at both? Is he
simply a man when he determines the question of jurisdiction but a judge when he decides every
question in the case? The answer to these question is simple. The determination by the court of the
question whether he has not jurisdiction is a judicial determination.The indispensable prerequisite to
the simplest and most elementary judicial act of any court is the determination of the question of
jurisdiction. It is utterly impossible for him to act in the simplest matter that can be brought before
him without first making that determination. It is an inevitable necessity which is inexorably required
to precede everything else in the functions of every court. It is thrust upon him instantly with the
appearance of the first suitor in his court. It is the indispensable prerequisite of every judicial act. It
was elemental in the creation of the judicial office. The implacable forces that created the office, the
unalterable nature of its functions, drive him irresistibly to that primordial determination. That
necessity is ever with him. It is imperative, merciless, and inexorable. Born with his office, it dies only
with his office. May we say, then, that it is not a judicial determination the exercise of judicial
functions? Shall we assert that it is not an exercise of judicial nature of his office inevitably requires
him to decide as an absolute condition precedent to the performance of any other act in the cause?
It seems to me that it can not be doubted that it is a judicial determination, and one of the very first
importance. In fact, it is the highest and most important judicial function which a court can possibly
exercise.
The court, although he sees his jurisdiction written as clear as light, makes, nevertheless, the judicial
determination of jurisdiction as really and as fully as does the court who spends days and nights of
laborious inquiry into doubtful laws to decide the same question. The court who had jurisdiction and
then exceeded it inevitably determined first of all that very question of primary jurisdiction as
completely as did the court who, really having no jurisdiction, determined erroneously that he had;
and, if the first had made a mistake in determining jurisdiction at the beginning, ought he suffer more
than he did suffer for making later in the cause the very same mistake, the mistake by which he
exceeded his jurisdiction? The mistake in either case was over the same question, namely,
jurisdiction. Ought it, in fairness, to make any difference when the jurisdictional mistake is made?
Ought the judge who made the mistake at the beginning of the cause to suffer more than he who
made a mistake over the same question later in the same case? Ought an error in regard to

jurisdiction made at the opening of court be more fatal or require severer punishment than one made
at the close? Is a mistake greater because it was made at 10 a.m. than 5 p.m. To be sure, in the one
case he had jurisdiction at first; but he used it only as a means to exceed that jurisdiction later, to put
himself outside of it. That is simply a history of how he came to be outside of his jurisdiction but, of
itself, it furnishes no reason why he should be excused from liability while the judge who never had
jurisdiction should be ruined financially, disgraced before the public and his usefulness as a judge
destroyed, wholly irrespective of the nature of the questions involved or the functions exercised, and
utterly without regard to the results produced. I know it may be urged that the law having given the
court jurisdiction and power to embark upon the cause, it must necessarily be presumed that he has
also power and jurisdiction to dispose of it; and that if that disposition is wrong he ought not to be
liable as he was simply performing the judicial duty which the law imposed. Exactly. But when the
judicial office is created and a judge is appointed, is there not, must there not be, a presumption of
power on his part to determine the limits and extent of his jurisdiction? Indeed, must he not
necessarily have the power to determine whether he has any power at all or not? The jurisdiction to
determine whether he has jurisdiction? The question whether a court has any power at all is often
involved in greatest doubt. The very existence of the law under which he is asked to act may be
doubtful. When its existence is assumed, its meaning, extent, scope, and applications. He must
decide all these questions before he proceeds with the case presented. I say again, he must have,
necessarily, jurisdiction to determine whether he has jurisdiction. Who is to determine that question if
he does not? He has no one to do it for him; no one to whom he may turn for assistance. There is no
one to whom he may hand the responsibility. Hemust act. He alone must assume the responsibility.
He may not idly on his bench and refuse to act because he is uncertain whether or not he has the
authority to act. Such conduct would warrant his removal from office. But removal would not be the
cure inasmuch as his successor would be in the same condition of doubt. If the judge refused to act
in every case where jurisdiction was in doubt, a court of justice would be a rank imposture. The
judge must act, and he must act not only in cases of doubt upon the merits where jurisdiction is
conceded, but he must also act in cases where jurisdiction itself over the whole subject-matter is a
serious and doubtful question. How can it be said, then, that in the one case he is liable and in the
other he is not? A judge of a court having jurisdiction and acting on the merits of a question may, by
a decision plainly and manifestly in violation of the law, literally confiscate the property of a party
litigant and thereby reduce him and his family to beggary, himself escaping entirely unscathed; while
the judge of another court who , by an erroneous assumption of jurisdiction after a thorough and
painstaking investigation of that question, a question concerning which the best minds might
reasonably differ, promotes thereby the real justice between the parties upon the merits, would,
nevertheless, be helplessly liable to respond fully in damages for the injuries caused by his act, with
all that such liability might imply to his fame, his fortune, and his official position.
It may be added, by way of repetition, that it signifies nothing to say that, because a curt finds
himself lawfully in the midst of a cause, he must be allowed to determine it in one way or another,
and that in doing so he should be protected. It is no more essential that he continue it than that
he begin it. A litigant who is not permitted to finish is in no worse condition than one who was never
allowed to begin. Moreover, if it held that the law requires a court to begin right, it must be equally
true that a court having begun right, must continue right. There should be no more license
to continue wrong than to begin wrong. The prohibition should be equal in both cases. While it is true
that a court can not give itself jurisdiction by determining that it has it, nevertheless, that idea in
nowise militates against the position here taken, as the argument which it presents is as applicable
to a case involving excess of jurisdiction as to one where there is want of jurisdiction.
If we follow strictly the rule which holds civilly liable the court who, at the beginning of the cause,
errs, as to his jurisdiction over the subject-matter, and wholly excuse him who errs as to his
jurisdiction over the subject-matter later in the cause, we have this result:

A matter is presented to a court for action. He has really no jurisdiction whatever over it; but, after
due deliberation decides that he has, and proceeds. He arrests A, tries and convicts him of
homecide, and sentences him to twenty years in prison. Question determined, jurisdiction.
Act, coram non judice and void. Result, judge liable.
A matter is presented to another court for action. He has jurisdiction in the first instance. He
proceeds. Later he arrives at a point in the case where he fails absolutely of jurisdiction to proceed
further with the cause. But, after due deliberation, he nevertheless decides that he has jurisdiction
and proceeds. He tries and convicts B of homecide and sentences him to twenty years in prison.
Questioned determined, jurisdiction. Act, coram non judice and void. Result, judge not liable.
Why this difference in result? It is no answer to easy that, in the second case, the court, having
jurisdiction, had, therefore, the right to determine any question that might arise during the progress
of the case, even if it be a question as to his jurisdiction to proceed further, and in making such
determination he would be protected; for, in the first case, the fact that he is a court gives this right,
as it places upon him the duty to determine whether he has the authority to inaugurate the
proceedings, and in the determination of that question he, too, ought to be protected. The
determination of the jurisdictional right to begin, is of exactly the same nature and quality as the
determination of the jurisdiction to continue. The resolution of the two questions involves exactly the
same mental processes, the use of exactly the same discretion, the adoption of precisely the same
methods, the exercise of identical functions; while the purposes animating the courts in their
decisions are absolutely the same in both cases, namely, the faithful and efficient discharge of the
duties and obligations of the office. The two question themselves, as representing the two legal
conditions, are exactly the same inherently. The fact the one question is determined at one stage of
the cause, while the other is decided at another, is purely accidental and incidental.
Let me give an example more concrete: Whether or not a Court of First Instance of the Philippine
has jurisdiction over a given subject-matter depends upon whether or not a certain law of Spanish
origin in force prior to the American occupation survived the change of sovereignty. If that law
survived he has jurisdiction. If did not, he is absolutely devoid of jurisdiction. The determination of
that question involves a careful investigation of the fundamental law of the Islands as derived from
American sources; an interpretation of its force and significance as well as the scope of its
application; the construction of the order of the President to General Merritt and of the proclamation
of the latter to the Philippine people, both heretofore quoted, and last, and perhaps most difficult of
all, the resolution of the question presented by that part of the above-mentioned order of the
President which provides that "the municipal laws of the conquered territory, such as affect private
rights of person and property, and provided for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the new order of things." When is a Spanish
law "compatible with the new order of things' and when incompatible? Upon the determination of that
questions depends absolutely the jurisdiction of the court. Was ever a question more perfectly
judicial? Could there possibly be a question in the resolution of which the judicial function was more
clearly exercised? Has there ever been, or will there ever be, a situation in which a man could be
more a judge than here? Yet we are asked hold that the Court of First Instance would not be
protected in the determination of that question.
Moreover, this rule take cognizance whatever, as we have before noted, of the nature of the
questions to be solved by the two judges in question. It makes no difference between the cases
where the question of jurisdiction of great doubt and difficulty and those where the lack of jurisdiction
and authority is so plain and clear that it ceases altogether to be a question. For example, in the
illustration given, wherein the Court of First Instance was obliged to determine the existence of a
Spanish law, there is presented a question of great intricacy and extreme difficulty of determination.
Yet the judge who decided that question, after the most careful and painstaking investigation and

study, and decides wrongly, receives, under the doctrine we are discussing, no more mercy than
another judge who, during the progress of the cause, orders the head of one of the parties stricken
off by the sheriff. Although the lack of jurisdictional authority or power to make such an order is so
clear and so plain that it can not be a question of any kind from any point of view, and especially not
one requiring for its solution the exercise of the judicial functions; and although such an act so
transgresses every judicial precedent, so violates every principle of law, so outrages the commonest
sense of justice, and so debauches the functions and purposes of a court, that no judge can be
heard to say that he was exercising judicial functions in the performance of such an act,
nevertheless, that judge, so far as his civil responsibility is concerned, stands, under the doctrine
referred to, in exactly the same position as the judge who clearly and admittedly exercised judicial
functions in the determination of a question over which the best legal minds have been found to
differ.
Still worse. A judge who, even while acting in excess of his jurisdiction, corruptly and criminally sells
his judgment to whomsoever pays him highest, and thus, debauches and prostitutes the functions of
his office before the world, would not be liable civilly to the person injured; while another judge,
learned in the law, unimpeachable in integrity, unquestioned in honesty, but who made a mistake of
judgment over the intricate and doubtful question of his initial jurisdiction, would be ruined financially
and his usefulness as a judge completely destroyed. And all this because one judge erroneously
decided the question of jurisdiction at the beginning of the cause, while the other erroneously
decided the same question later in the case.
Under this doctrine I am anxious to know what reason would be given for holding civilly liable a judge
who, as a court, having jurisdiction of the cause and parties, should order the head of one of the
parties stricken off and that order should be obeyed. That he would be so liable is certain. But what
reason could be given for it under the doctrine that jurisdiction is the touchstone of liability? He had
jurisdiction of the case, and, under the doctrine, had the right to pass upon any question which he
might regard as related to the case, and he could not be questioned civilly for so passing his
judgment even though it lead him wholly outside and beyond his jurisdiction and indeed him to
perform acts completely illegal and void. It is no answer to say that the act was wholly outside of his
jurisdiction and power to perform and was illegal and void, for, so was the act of the United States
Circuit Court judge in Lange vs. Benedict, supra; and yet he was held not to be civilly liable. The
mere fact that he acted in excess of his jurisdiction is not sufficient to condemn under the doctrine.
Neither is it a reply to say that such a question could not possibly arise in the case, nor that such an
act was so gross and apparent a violation of the duties of the court and such a palpable prostitution
of his proper functions, that he would not be allowed to say that he acted as a judge in the
performance of such an act. These are not answers, base the liability of the judge not upon the
question of jurisdiction but upon the proposition that the question was one the determination of which
required the exercise of judicial functions. The essence of the whole matter is this. Was the
determination of the question whether he had the right to perform the act complained of one which
required the exercise of the judicial function? Whether or ]not he was, in the resolution of the
question, exercising judicial functions does not all depend upon whether he had jurisdiction of the
subject-matter of the cause. As we have said, a court may exercise judicial functions as perfectly
and as fully in determining whether he has jurisdiction of the subject-matter presented to him for
action as he may in deciding any question in the case when his jurisdiction of the subject-matter is
conceded. A court always has power and jurisdiction to determine whether it has jurisdiction.
We thus see the embarrassment which is necessarily present in attempting, under the doctrine that
jurisdiction determines liability, to hold a judge who has jurisdiction of the cause civilly liable for
performing an act outside of his jurisdiction no matter how far outside it may be. It is as apparent,
also, that all such embarrassment disappears when, instead of making jurisdiction the test of liability,
we make the exercise of judicial functions the real test.

I believe that it has been thoroughly established that the test of judicial liability is not jurisdiction. I
believe it has also been as thoroughly established that such liability depends wholly upon the nature
of the question which was being determined when the error complained of was made by the court;
that is, it must have been a question the determination of which required the exercise of judicial
functions. With that condition, jurisdiction has nothing vital to do.
When, then, is a judge civilly liable for his illegal acts? When the question which he wrongly
determines is one in the solution of which he can not be said to use judicial attributes. I again
present the illustrations I have already given. During the course of a trial the judge orders the head
of one of the parties stricken off by the sheriff. As we have already said, such an act so transgresses
every judicial precedent, so violates every principle of law, so outrages the commonest sense of
justice, and so debauches the functions and purposes of a court, that no judge can be heard to say
that he was exercising judicial functions in its performance. His lack of power is so clear that,
whether he has such power, ceases to be a question. There are certain limits beyond which a judge
will not be permitted to say that he was a judge, or that he was acting as a judge. On the other hand,
the example given in which the Court of First Instance was required to determine the question of the
survival of the Spanish law in order to reach a conclusion as to whether he had jurisdiction or not,
clearly discloses a case where the judicial attributes were exercised. That is the question over which
courts in general may really differ. Concerning it two opinions are allowable. In other words, there
are two sides to the question. If the question is one which a judge, qualified in the average way for
the position occupied by the offending judge or for a similar judicial position, would regard as a
question, then it is one whose determination requires the exercise of judicial functions. But if it is one
so clear that a judge qualified as aforesaid, would not regard it as a question, then it is one whose
determination does not require the exercise of judicial functions. In the former case the judge is not
liable. In the latter case, he is. To put in another way. If the question is one which can be regarded by
a judge, qualified as above stated, as having two sides, then the judge is not liable for an erroneous
decision. But if it be one which can not be regarded by such judge as having two sides, then the
judge is liable for a wrong decision.
Although it is admitted, as I do admit, that the Governor-General had and has no power or authority
to expel domiciled aliens, it must, nevertheless, be freely conceded, and this is the vital and
conclusive point in this case, that from his point of view there are two sides to that question. That
such is the case is conclusively established by the fact that three judges of this court have already
decided, after mature deliberation, that he actually has such powers. This being so, it becomes a
real question, the determination of which requires the exercise of judicial functions. In such
determination he is protected even though he errs.
Whether or not the given question is such one as I have above described, that is, whether it is one
which would be regarded by a judge, qualified in the average way for the position occupied by the
offending judge or a similar judicial position, as having two sides, is always a question of law and not
of fact. It is a condition established by the existing law. It is a matter not susceptible of proof. The
court is required to take judicial notice of the law of the land. It can not be established by evidence.
The condition, the state, of the law when the offending act was committed is fixed. It can not be
changed by evidence. When the act is admitted, liability is a pure question of law. Even the motive
which influenced or controlled the judge in his decision can not be proved. It is immaterial under the
doctrine of Bradley vs. Fisher. He is not judged from his moral but from his legal relation to the
question.
The foregoing is an explanation, if one were needed, of the expression in my former opinion in this
case, in which I made reference to the Governor-General acting "in the honest belief" that he had the
authority to perform the acts complained of. By such expression I did not mean to call attention to
the Governor-General subjectively. I did not mean to bring in issue his state of mind, morally or

ethically, at the time he acted, nor the motive which impelled him. What was meant there is. Was the
question which confronted him for solution one over which men qualified for that or a similar station
would really differ; one which the average of man fit for that position would regard as a real question.
In other words, Is it one which, from the viewpoint of a man ordinarily qualified for that position, has
two sides? "Honestly," as used, referred to the nature of the question rather than the state of mind or
motive of the Governor-General. The state of mind morally of a judge, the motives which induce him
to at, are of no consequence in determining his liability. In the case of Bradley vs. Fisher, supra, cited
in my former opinion as well as in this, the court says:
Nor can this exemption of the judges from civil liability be affected by the motives with which
their judicial acts are performed. The purity of their motives can not in this way be the subject
of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in
1608 (12 Coke, 25), where it was laid down that the judges of the realm could not be drawn
in question for any supposed corruption impeaching the verity of their records, except before
the King himself, and it was observed that if they were required to answer otherwise, it would
"tend to the scandal and subversion of all justice, and those who are the most sincere would
not be free from continual calumniation's."
The truth of this latter observation is manifest to all persons having much experience with judicial
proceedings in the superior courts. Controversies involving not merely great pecuniary interest, but
the liberty and character of the parties and, consequently exciting the deepest feelings, there is a
great conflict in the evidence and great doubt as to the law which should govern their decision. It is
this class of cases which imposes upon the judge the severest labor, and often create in his mind a
painful sense of responsibility. Yet it is precisely in this class of cases that the losing party feels most
keenly but the soundness of the decision in explanation of the action of the judge. Juts in proportion
to the strength of his convictions of the correctness of his own view of the case is he apt to complain
of the judgement to pass to the ascription of improper motives to the judge. When the controversy
involves questions affecting large amounts of property or relates to a matter of general public
concern, to touches the interest of numerous parties, the disappointment occasioned by an adverse
decisions often finds vent in imputations of this character, and from the imperfection of human nature
this is hardly a subject of wonder. If civil actions could be maintained in such cases against in his
complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the
protection essential to judicial independence would be entirely swept away. Few persons sufficiently
irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any
character to the acts which would be essential to the maintenance of the action.
If upon such allegations a judge could be compelled to answer in a civil action for his judicial
acts, not only would his office be degraded and his usefulness destroyed, but he would be
subjected for his protection to the necessity of preserving a complete record of all the
evidence produced before him in every litigated case, and of the authorities cited and
arguments presented, in order that he might be able to show to the judge before whom he
might be summoned by the losing party and that judge perhaps one of an inferior
jurisdiction that he had decided as he did with judicial integrity; and the second judge
would be subjected to a similar burden, as he in his turn might also be held amenable by the
losing party.
Some just observations on this head by the late Chief Justice Shaw will be found in Pratt vs.
Gardner (2 Cush., 68), and the point here was adjudged in the recent case of Fray vs.
Blackburn (3 West and S., 576) by the Queen's Bench of England. One of the judges of that
bench was sued for a judicial act, and on demurrer one of the objections taken to the
declaration was that it was bad in not alleging malice. Judgment on the demurrer having
passed for the defendant, the plaintiff applied for leave to amend his declaration by

introducing an allegation of malice and corruption; but Mr. Justice Compton replied: "It is a
principle of our law that no action will lie against a judge of one of the superior courts for a
judicial act, though it be alleged to have been done maliciously and corruptly; therefore the
proposed allegation would not make the declaration good. The public are deeply interested
in this rule, which, indeed, exists for their benefit, and was established in order to secure the
independence of the judges, and prevent them being harassed by the vexatious actions;"
and the leave was refused. (Scott vs. Stansfield, L. R., 3 Exch., 220.)
In this country the judges of the superior courts of record are only responsible to the people,
or the authorities constituted by the people, from whom they receive their commissions, for
the manner in which they discharge the great thrusts of their office. In the exercise of the
powers with which they are clothed as ministers of justice they act with partiality, or
maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to account by an
impeachment and suspended or removed from office. In some States they may be thus
suspended or removed without impeachment by a vote of the two houses of the legislature.
In the case of Randall vs. Brigham (7 Wall., 523; 74 U. s., 285), decided by this court at the
December term of 18 68, we had occasion to consider at some length the liability] of judicial
officers to answer in a civil plaintiff had been removed by the defendant, who was one of the
justices of the Superior Court of Massachusetts, from the bar of that State, and the action
was brought for such removal, which was alleged in the declaration to have been made
without lawful authority and wantonly, arbitrarily, and oppressively. In considering the
questions presented, the court observed that it was a general principle, applicable to all
judicial officers, that they were not liable to a civil action for any judicial act done by them
within their jurisdiction; that with reference to judges of limited and inferior authority it had
been held that they were protected only when they acted within jurisdiction; that if this were
the case with respect to them, no such limitation existed with respect to judges of superior or
general authority; that they were not liable in civil actions for their judicial acts, even when
such acts were in excess of their jurisdiction, "unless, perhaps when the acts in excess of
jurisdiction are done maliciously or corruptly." The qualifying words were inserted upon the
suggestion that the previous language laid down the doctrine of judicial exemption from
liability to civil actions in terms broader than was necessary for the case under consideration,
and that if the language remained unqualified it would require an explanation of some
apparently conflicting adjudications found in the reports. They were not intended as an
expression of opinion that in the cases supposed such liability would exist, but to avoid the
expression of a contrary doctrine.
In the present case we have looked into the authorities and are clear, from them, as well as
from the principle on which any exemption is maintained, that the qualifying words used were
not necessary to a correct statement of the law, and that judges of courts of superior or
general jurisdiction are not liable to civil actions for their judicial acts; even when such acts
are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.
Applying to the case at bar the analogy to which we have so far consistently adhered, it is necessary
to conclude, from the principles asserted in the quotation, that the motives with which the illegal acts
of the Governor-General were performed can not effect in any way his responsibility stated
heretofore, the liability of the Governor-General is a question of law and not of fact. It depends
entirely on the state of law, of that the court takes judicial notice without proof.
The foregoing discussion is not a criticism of the case of Bradley vs. Fisher, so many times referred
to. On the contrary, I am confident that this case, when properly viewed, is, as I have heretofore
stated, fully in accord with the considerations and conclusions indulged herein, and may reasonably,

indeed, if the dictum therein contained authority for them. In that case the name of the plaintiff
criminal branch of the supreme court of the District of Columbia by the judge thereof, the defendant
in the action. The following was the order entered by the court:
On the 2nd day of July last, during the progress of the trial of John H. Surat for the murder of
Abraham Lincoln, immediately after the court had taken a recess until the following morning,
as the presiding justice was descending from the bench, Joseph H. Bradley, esq., accosted
him in a rude and insulting manner, charging the judge with having offered from the
commencement of the trial. The judge disclaimed any intention of passing any insult
whatever, and assured Mr. Bradley that he entertained for him no other feelings than those of
respect. Mr. Bradley, so far from accepting this explanation or disclaimer threatened the
judge with personal chastisement. No court can administer justice or live if its judges are to
be threatened with personal chastisement on all occasions whenever the irascibility of
counsel may be excited by imaginary insult. The offense of Mr. Bradley is one which even his
years will not palliate. It can not be overlooked or go unpunished.
It is therefore, ordered that his name be stricken from the roll of attorneys practicing in this
court.
The suit was founded on this order, the plaintiff alleging that the defendant "falsely, fraudulently,
corruptly, and maliciously intended thereby to give color of jurisdiction" for making order referred to,
and that he acted unlawfully, wrongfully, unjustly, and oppressively in making such order. The action
was one against the judge for damages occasioned by such act. In deciding the case the court said:
In other words, it sets up that the order for the entry of which the suit is brought was a judicial
act, done by the defendant as the presiding justice of a court of general criminal jurisdiction.
If such were the character of the act, and the jurisdiction of the court, the defendant can not
be subjected to responsibility for it in a civil action, however erroneous the act may have
been, and however injurious in its consequences it may have proved to the plaintiff. For it is
a general principle of the highest importance to the proper administration of justice that a
judicial officer, in exercising the authority vested in him, shall be free to act upon his own
convictions, without apprehensions of personal consequences to himself. Liability to answer
every one who might himself aggrieved by the action of the judge would be inconsistent with
the possession of his freedom, and would destroy that independence without which no
judiciary can be either respectable or useful. As observed by a distinguished English judge, it
would establish the weakness of judicial authority in a degrading responsibility.
The criminal court of the District, as a court of general criminal jurisdiction, possessed the
power to strike the name of the plaintiff from its rolls as a practicing attorney. This power of
removal from the bar is possessed by all court which have authority to admit attorneys to
practice.
The criminal court of the District erred in not citing the plaintiff, before making the order
striking his name from the roll of its attorneys, to show cause why such order should not be
made for the offensive language and conduct stated, and affording him opportunity for
explanation, or defense, or apology. But this erroneous manner in which its jurisdiction was
exercised, however it may have affected the validity of the act, did not make the act any less
a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of
the plaintiff, as though the court had proceeded without having any jurisdiction whatever over
its attorneys.

A distinction must be here observed between the excess of jurisdiction and the clear
absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over
the subject-matter any authority exercised is a usurped authority, and for the exercise of
such authority, when the want of jurisdiction is known to the judge, no excuse is permissible,
But where jurisdiction over the subject-matter is invested by law in the judge, or in the court
which he holds, the manner and extent in which the jurisdiction shall be exercised are
generally as much questions for his determination as any other questions involved in the
case, although upon the correctness of his determination in these particulars the validity of
his judgment may depend. Thus, if a probate court, invested only with authority over wills
and the settlement of estates of deceased persons should proceed to try parties for public
offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this
being necessarily known to its judge, his commission would afford no protection to him in the
exercise of the usurped authority. But if, on the other hand, a judge of a criminal court,
invested with general criminal jurisdiction over offenses committed within a certain district,
should hold a particular act to be a public offense, which is not by the law made an offense,
and proceed to the arrest and trial of a party charged with such act, or should sentence a
party convicted to a greater punishment than that authorized by the law upon its proper
construction, no personal liability to civil action for such acts would attach to the judge,
although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court
held by him, whenever his general jurisdiction over the subject-matter is invoked. Indeed
some of the most difficult and embarrassing questions which a judicial officer is called upon
to consider and determine relate to his jurisdiction, or that of the court held by him, or the
manner in which the jurisdiction shall be exercised. And the same principle of exemption
from liability which obtains for errors committed in the ordinary prosecution of a suit where
there is jurisdiction of both subject and person applies in cases of this kind, and for the same
reasons.
It must be noted in the first, place, that, inasmuch as the court, in that case, was found to have had
full jurisdiction of the person of the plaintiff and the subject-matter before him, the court erring simply
in his method of procedure, the question of the civil liability of a judge for acts performed with
complete lack of jurisdiction did not arise.
In the second place, especial and particular attention is called to certain expressions in the decision
which occur in that portion relative to the liability of a judge acting in complete absence of
jurisdiction: "Where there is clearlyno jurisdiction over the subject-matter any authority is a usurped
authority, and for the exercise of such authority,when the want of jurisdiction is known to the judge,
no excuse is permissible." Again: "Thus if a probate court, invested only with authority over wills and
the settlement of estates of deceased persons should try parties for public offenses, jurisdiction over
the subject of offenses being entirely wanting in the court, and this being necessarily known to its
judge, his commission would afford no protection to him in the exercise of the usurped authority."
These portions of the sentence quoted which I have italicized contain the essence of the whole
matter of judicial liability where there is a lack or failure of jurisdiction. I am of the opinion that those
expressions indicate necessarily and decisively that the principle which I have herein laid down as
the one logically and inevitably governing judicial liability is the true and the only one whose results
are not absurdities in many cases. Otherwise those expressions are wholly meaningless and the
suggestions they contain valueless. If the jurisdiction is the real test of liability, if a judge acting
wholly and completely without jurisdiction is necessarily liable, as contend text writers and courts
generally, what difference does it make whether the want of jurisdiction "clearly" appear or not. If
entire absence of jurisdiction is decisive, what does it signify whether or not "the want of jurisdiction
is known to the judge." If the crucial test is jurisdiction, what means the phrase "and this (entire want
of jurisdiction) being necessarily known to its judge?" If these expressions mean nothing, then there
is an end of the matter so far as the case we are discussing is concerned. But if they mean anything

at all commensurate with the signification which would ordinarily be given to the words which
compose them, then they destroy utterly the doctrine that jurisdiction is the test of judicial liability.
The word "clearly" refers either to the judge himself or to some one or something apart from him. If
to the judge, then the want of jurisdiction must be clear to him before he can be liable. But if his want
of jurisdiction is clear to him and he still goes forward with the cause, he must be actuated by a
motive other than his belief that he is within his jurisdiction. If, therefore, "clearly" refers to the judge
himself, to his subjective condition, then it can have no relation or materiality except to disclose the
motive which removed him. But motive has been expressly held by this very case to be wholly
immaterial in determining a judge's civil liability. Motive is merely a state of mind. If the motive can
have no influence on the matter, then it is of no consequence whatever what the state of mind may
be. This is in perfect accord with the universal doctrine that a one man's rights can not be made to
depend on another man's mind. If A illegally injures B, B's right of action can not be dependent on A's
state of mind when he caused the injury. Such state of mind might have some influence on the
amount of damages or the kind of action to be brought, but, never on the right of action. So the right
of action against a judge never can be made to depend on the state of mind of the judge who causes
the injury, but solely upon the nature of the question determined. Rights are children of the law, not
of man's fancy.
If, however, the word "clearly" refers to some one or something apart from the judge himself, then
the expression in which it occurs has meaning and significance. If the want of jurisdiction is so
"clear," not to that judge in particular, but to a judge having the average qualifications for the position
occupied by the offending judge, or a similar judicial position, that whether or not there is jurisdiction
is not a question at all, then we can understand what was intended by the use of the word "clearly."
The whole doctrine that the civil liability of a judge depends upon jurisdiction alone, as stated by text
writers and enforced by most courts, is utterly at variance with the conception that the state of mind
of the offending judge should have any influence on his liability. Moreover, the very case I am
discussing holds clearly that public policy requires that the motives of a judge in deciding a cause,
his state of mind accompanying in determining his liability. We find in that case the following:
Yet it is precisely in this class of cases that the losing party feels most keenly the decision
against him, and most readily accepts anything but the soundness of the decision in
explanation of the action of the judge. Just in proportion to the strength of his conviction of
the correctness of his own view of the case is he apt to complaint of the judgment against
him, and from complaints of the judgment to pass to the ascription of improper motives to the
judge. When the controversy involves questions affecting large amounts of property or
relates to a matter of general public concern, touches the interests of numerous parties, the
disappointment occasioned by an adverse decision often finds vent in imputations of this
character, and from the imperfections of human nature this is hardly a subject of wonder. If
civil actions could be maintained in such cases against the judge, because the losing party
should see fit to allege in his complaint that the acts of the judge were done with partiality, or
maliciously, or corruptly, the protection essential to judicial independence would be entirely
swept away. Few persons sufficiently irritated to institute an action against a judge for his
judicial acts would hesitate to ascribe any character to the acts which would be essential to
the maintenance of the action.
Motive, as he used, can not be restricted to a state of mind morally wrong. It includes also a state of
mind legallywrong. A judge, knowing full well that he is absolutely without jurisdiction, who, in spite of
the parties in complete violation of the law, may be impelled thus to violate the law by an honest
belief that he is thereby doing justice between the parties; but his motives are nevertheless tainted
with illegality, and, even though they are not morally wrong, they fall within the definition of "motives"
as that word is used in the decision I am discussing. But even though I be wrong in that contention, it
nevertheless is certain that if a corrupt motive can not be influential in determining the liability of a
judge, one not corrupt can not be.

It, therefore, seems to me clear that the word "clearly" as used in the case under discussion does
not refer to the state of mind of the offending judge, but rather to the nature of the question which he
determines; not to the way the judge himself views the question, but to the way it would be viewed
by the standard judge, the average judge, as I have heretofore stated.
What I have said of the word "clearly," as it appears in the case under discussion, is equally
applicable to the other expressions quoted therefrom. The phrase "when the want of jurisdiction is
known to the judge" presents precisely the same questions. As I have said, the very case in which
that expressions occurs to holds unequivocally that the motives which move the judge to action are
not permitted to weigh for or against him, even though they are corrupt and immoral. It can not be
possible, then, that any other motive, especially an honest one, can be permitted to affect his case.
The conclusion is, therefore, unavoidable that the phrase "when the want of jurisdiction is known to
the judge" does not refer to the actual state of the mind of the judge but to the state of mind which he
ought to be in and which he would have been in if he had taken into consideration properly the
nature of the question before him. In other words, he will be deemed to have been in the same state
of mind as the ideal, the standard judge of whom we have spoken would have been had he had the
same question before him. We have here somewhat the idea which is predominant in the theory of
negligence embodied in the question, "Did he use the care which an ordinary careful and prudent an
would have used under the same circumstances?" This means simply that everything depends, in
the last analysis, on the nature of the question with which the judge was dealing when he committed
the error made the basis of the action against him.
Lastly, as to the phrase " and this [the want of jurisdiction] being necessarily known to the judge."
The word "necessarily" seems to me to be absolutely conclusive as to the intention of the Supreme
Court of the] United States in the case under discussion relative to the doctrine of judicial liability in
cases involving a failure or want of jurisdiction. This expression, it will be remembered, was used in
connection with the illustration of a probate court assuming criminal jurisdiction. Why, in such
illustration, should the want of jurisdiction be "necessarily" known to the judge? No reason can be
given except that it was a perfectly plain case, and, in consequence, he was bound to know it,
whether he actually did or not. In other words, the question which he was called upon to decide was
so plain and so clear that the standard judge would not have regarded it as a question at all; i.e.,
there was really only one side to it it could be decided in only one way. Therefore, the judge was
bound to know it; it was necessarily known to him. The nature of the question was such that he was
estopped from denying knowledge. Thus are we brought back again to the proposition I have so
often asserted, that the liability of the judge depends wholly upon the nature of the question in
determination of which the error was made.
It appears to me to be evident, therefore, that the case of Bradley vs. Fisher is an authority, so far as
dictum can be such, in support of the doctrine I am advocating, both affirmatively and negatively.
Affirmatively, because it asserts the doctrine that the nature of the question controls. Negatively,
because it also asserts that the motives which induced the judge to the error which is the basis of his
liability are wholly immaterial in establishing that liability. This necessarily means, as we have
already seen, that the state of mind of the judge by which the error was induced, of whatever kind it
may be, good, bad, or indifferent, is entirely without significance as an element of his liability. This is
all I set out to establish. (See Bishop Non-Contract Law, par. 783; Root vs. Ross, 72 Northwestern,
1022; Grove vs. Van Duyn, 15 Vroom, 654.) Section 9 of the Code of Civil Procedure relating to the
liability of judges is simple declaratory of the law as heretofore set forth.
The discussion up to this point has proceeded upon the theory that the Governor-General acted
wholly without power, authority, or jurisdiction. I here note by way of suggestion merely that it should
be remembered that the Governor-General, in performing the acts complained of, was operating in a

field distinctively his own, namely, that of the execution of the law. Of that branch of the government
he is the head. Over that field has general authority and jurisdiction. Taking for the moment the
position of those who maintain that there is difference between excess of jurisdiction and an entire
failure of jurisdiction, may not his act of expulsion have been in excess of jurisdiction rather than in
complete failure thereof? I do not now stop to argue this question, inasmuch as I have already
presented the matter fully from the other point of view.
I have treated thus at length the liability of judges for analogical purposes, founding myself not only
upon the reason and principle involved, but also upon the case of Spalding vs. Vilas (161 U. S.,
483), in which the opinion discussed at length the civil liability of judges, using the principles there
applied of the defendant, who was postmaster-general, and who had been sued for damages
alleged to have been caused by certain acts performed by him in the execution of what he believed
to be the duties of his office. This is precisely what I have done in the case at bar.
So far I have discussed the liability of the Governor-General for the acts complained of, viewing the
acts as springing from the determination of questions judicial in their nature. I now propose to treat
the question at bar as arising from determination made and acts performed by the Governor-General
in discharging the duties laid upon him as Chief Executive of the Government.
The immunity of the judges from personal liability for damages resulting from their wrongful acts
while in the discharge of the duties of the office rests wholly in public policy. The reasons for such
immunity are nowhere better stated than in Mr. Cooley's work on Torts. He says:
1. The necessary result of the liability would be to occupy the judge's time and mind with the
defense of his own interests, when he should be giving them up wholly to his public duties,
thereby defeating, to some extent, the very purpose for which his office was created.
2. The effect of putting the judge on his defense as a wrongdoer necessarily is to lower the
estimation in which his office is held by the public, and any adjudication against him lessens
the weight of his subsequent decisions. This of itself is a serious evil, affecting the whole
community; for the confidence and respect of the people for the government will always
repose most securely on the judicial authority when it is esteemed, and must always be
unstable and unreliable when this is not respected. If the judiciary is unjustly assailed in the
public press, the wise judge refuses to put himself in position of defendant by responding,
but he leaves the tempest to rage an awakened public sentiments silences his detractors.
But if he is forced upon his defense, as was well said in an early case, it would tend to the
scandal and subversion of all justice, and those who are most sincere would not be free from
continual calumniation's.
3. The civil responsibility of the judge would often be an incentive to dishonest instead of
honest judgments, and would invite him to consult public opinion and public prejudices,]
when he ought to be wholly above and uninfluenced by them. As every suit against him
would be to some extent an appeal to popular feeling, a judge, caring specially for his own
protection, rather than for the cause of justice, could not well resist a leaning adverse to the
parties against whom the popular passion or prejudice for the time being was running, and
he would thus become a prosecutor in the cases where he ought to be protector, and might
count with confidence on escaping responsibility in the very cases in which he ought to be
punished. Of what avail, for example, could the civil liability of the judge have been to the
victims of the brutality of Jeffreys if, while he was at the height of his power and influence
and was wreaking his brutal passions upon them amidst the applause of crowded court
rooms, these victims had demanded redress against him at the hands of any other court and
jury of the realm?

4. Such civil responsibility would constitute a serious obstruction to justice, in that it would
render essential a large increase in the judicial force, not only as it would multiply litigation,
but as it would open each case to endless controversy. This of itself would be an incalculable
evil. The interest of the public in general rules and in settled order is vastly greater than in
any results which only affect individual; and it is more important that their action shall tend to
the peace and quiet of society than that, at the expense of order, and after many suits, they
shall finally punish an officer with damages for his misconduct. And it is to be borne in mind
that if one judge can be tried for his judgment, the one who presides on the trial may also be
tried for his, and thus the process may go on until it becomes intolerable.
5. But where the judge is really deserving of condemnation a prosecution at the instance of
the State is a much more effectual method of bringing him to account than a private suit. A
want of integrity, a failure to apply his judgment to the case before him, a reckless or
malicious disposition to delay or defeat justice may exist and be perfectly capable of being
shown, and yet not be made so apparent by the facts of any particular case that in a trial
confined to those fact he would be condemned. It may require the facts of many cases to
established the fault; it may be necessary to show the official action for years. Where an
officer is impeached, the whole official career is or may be gone into; in that case one
delinquency after another is perhaps shown each tends to characterize the other, and the
whole will enable the triers to form a just opinion of the official integrity. But in a private suit
the party would be confined to the facts of his own case. It is against inflexible rules that one
man should be allowed to base his recovery for his own benefit on a wrong done to another;
and could it be permitted, the person first wronged, and whose right to redress would be as
complete as any, would lose this advantage by the very fact that he stood first in the line of
injured persons.
Whenever, therefore, the State confers judicial powers upon an individual, it confers them
with full immunity from private suits. In effect, the State says to the officers that these duties
are confided to his judgment; that he is to exercise his judgment fully, freely, and without
favor, and he may exercise it without fear; that the duties concern individuals, but they
concern more especially of the welfare of the State and the peace and happiness of society;
that if he shall fail in the faithful discharge of them he shall be called to account as a criminal;
but that in order that he may not be annoyed, disturbed, and impeded in the performance of
these high functions, a dissatisfied individual shall not be suffered to a call in question his
official action in a suit for damages. This is what the State, speaking by the month of
common law says to the judicial officer. (Cooley on Torts, 2nd ed., pp. 475-478.)
The following cases are also in point: Bradley vs. Fisher (13 Wall., 335), Spalding vs. Vilas (161 U.
S., 483), Pratt vs. Gardner (2 Cush., 63), Yates vs. Lansing (5 Johns., 282, 291), Fray vs.
Blackburn (3 B. and S., 576), Scott vs. Stansfields (L. R., 3 Exch., 220).
It needs no use of imagination to permit the assertion that the execution of the law is a matter fully
as important as the creation or determination of the law. One branch of the government is, largely
speaking, as necessary and important as the other. The system of representative government is
founded in that proposition. The three departments are not only coordinate; they are co-equal; they
are coimportant. Whatever affects adversely the efficiency of one affects adversely the efficiency of
all. One is quite useless without the other. The legislature is supremer than a king in the making of
laws, but if they remain unexecuted they are but dry thunder that rolls and growls along the sky but
disappoints the husbandman in a thousand thirsty fields. The judiciary is an invincible and irresistible
giant in promulgating its decrees, but a day-old infant in their execution.

Whatever impedes or prevents the free and unconstrained activity of a governmental department,
within its proper limits, tends to evil results. The civil responsibility of the chief executive would
produce in him an inevitable tendency, insidious in character, constant in pressure, certain in results,
to protect himself by following lines of least resistance and to temper the force of his executive arm
in places and upon occasions where there was strong opposition, either by powerful and influential
persons or by great federated interests, and where public prejudice was intense, active, and
threatening. Personal interest is a force which in the long run is apt to drive as it will. Reputation,
pride, riches, family, home, all endangered in many respects by personal responsibility, are
influences which grip and cling with threw of steel and exert a power upon men almost incalculable
in its extent, almost certain in its results. To allow these well-nigh irresistible forces to exercise to the
full their effects upon the coordinate branches of the government, through men who, for the moment,
are, in a sense, the state, is to drive a blow at the very vitals of impartial government.
Anyone may bring an action. It needs no merits, no real grounds, no just cause, no expectation of
winning, tocommence suit. Any person who feels himself aggrieved by any action of the chief
executive, whether he have the slightest grounds therefor or not, may begin suit. Or, not particularly
desiring to bring an action upon his own initiative, he may be induced thereto by any evil-disposed
person, any political rival, party antagonist, or personal enemy of the chief executive, or by any
person desiring for any reason to see his administration hampered and brought into contempt by
public display of the alleged inefficiency of the chief functionary. For the purposes in view, it is almost
immaterial whether or not the action succeeds. Substantially the same results are attained by
commencing the action and carrying it haltingly to its final determination. A person who brings an
action for the reasons mentioned, or his inducers, will always be fertile and conscienceless in the
method of conducting it. Every means will be employed to make it sensational. Every effort will be
used to bring the salient features of the plaintiff's claim before the public. Opposition papers will
deem it strategy to lend their ready columns to everything that reflects adversely on the defendant.
Startling headlines will appear in every issue inviting all people to read the charges against their
chief executive. Occasions for delay will be found or made. The case will drag along through months
of calumny, vituperation, and sensation until the people, nauseated and weary of the noise and the
spectacle, cry for riddance. This is precisely the result desired by the plaintiff. The matter can be
stopped and quitted only by the removal of the offending official. This would usually follow in one
way or another.
Moreover, the bringing of an action against him because of his act in relation to a given matter would
naturally prevent his taking further or other steps against other person similarly circumstance until
the final determination of the pending action. Respect for law and the judiciary, as well as his own
protection, would probably require this. No words are necessary to indicate the intolerable condition
thus resulting from general civil responsibility. Action upon important matters of state delayed; the
time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the State and for the office he occupies; a tendency to unrest
and disorder; resulting, in a way, in a distrust as to the integrity of government itself.
Although the three departments of the government are coordinate and equal of importance in the
administration of governmental affairs, nevertheless, it is generally recognized that, in many ways,
and at least popularly, the chief executive is the first man in the state. He is regarded by the public
generally as the official who most nearly represents the people, who most perfectly epitomozes the
government and the state. An assault upon him is, popularly speaking at least, an assault upon the
people. An offense against the state. Generally speaking, the government is good or bad as he is
good or bad. To degrade and humiliate him is to degrade and humiliate the government. To put him
on trial as a wrongdoer is to put on trial government itself. To bring him publicly to the bar is to breed
in the public mind and unwholesome disrespect not only for his person but for his office as well;
while a decision against him is, popularly speaking acts as unworthy of consideration, but also a
partial demonstration of the inefficiency of government itself. As the state may not be held liable, and

by such process its sovereignty weakened, without express provision of law, so the person most
perfectly its incarnation should not be subjected civilly to personal liability for damages resulting from
the performance of official acts except by law equally express.
While the three coordinate governmental departments are mutually dependent, each being unable to
perform its functions without the other, they are, nevertheless, paradoxical as it may seem, wholly
independent of each other, except for what is known as the checks and balances of government.
That is to say, one department may not control or interfere in any way with another in the exercise of
its functions. This, of course, is fundamental. The legislature may neither dictate the courts what
judgments they shall render, nor modify, alter or set aside such judgments after they have been
promulgated. The legislature can not be permitted to override executive action nor interfere with the
performance of those duties laid by the constitution upon the chief executive. In the same way, the
courts have no power to control or interfere in any way with the legislature in the making of laws or in
taking or refraining from taking any action whatever, however clear may be its constitutional duty to
take or not to take such action. The legislature may refuse to pass the laws which are absolutely
necessary for the preservation of society, thus clearly and openly violating and disregarding the trust
reposed in it, and still neither the judicial nor the executive branch can interfere. The courts may
openly and flagrantly violate their duty, render the most partial, unjust, illegal, and even corrupt
judgments, thereby openly prostituting their proper functions, yet neither the legislature nor the
executive department can interfere.
Moreover, except as hereinbefore indicated, neither the members of the legislature nor the judiciary
are subject to personal liability for damages either by their failure to perform their duties or for their
open defiance of the plain command of the constitution to perform them.
The power to interfere is the power to control. The power to control is the power to abrogate. Upon
what reasons, then, may we base the right of the courts to interfere with the executive branch of the
government by taking cognizance of a personal action against the chief executive for damages
resulting from an official act; for, to take jurisdiction of such an action is one of the surest methods of
controlling his action. We have already seen the dangers which lurk in the unhampered privilege of
personal suit against the chief executive from the viewpoint of the effects which it would have on him
personally and, therefore, on the general enforcement of the law. Another question closely akin to
this is that of the effect on the independence of that branch of the government. In that argument we
touched the results of such responsibility from the viewpoint of the influence wielded by the person
who complained by suit against the act of the chief executive. Here we refer to it from the standpoint
of the force, the power, the instrumentality by which the complaint is made effective. Every argument
advanced against the civil responsibility of the chief executive founded in the beneful results to the
public welfare which such responsibility would inevitably carry, is applicable to the proposition that
the court may take cognizance of personal actions against him for damages resulting from his official
acts. If the courts may require the chief executive to pay a sum of money every time they believe he
has committed an error in the discharge of his official duty which prejudices any citizen, they hold
such a grip upon the vitals of the executive branch of the government that they may swerve it from
the even tenor of its course or thwart altogether the purpose of its creation. If such responsibility
would prove harmful by reason of the influence thus given to persons or interests involved in the
execution of the law, how much more disastrous would be the results of such responsibility which
would normally flow from the power which the courts might wield, that power which alone makes
effective the influence of the persons or interest referred to. not only determining their remedy and
adjudicating their rights, but also fixing the amount of damages which the infringement of those
rights has occasioned. That the courts may declare a law passed by the legislature unconstitutional
and void, or an act of the executive unauthorized and illegal; or that the legislature may curtail within
limits the jurisdiction and power of the courts, or restrict, in a measure, the scope of executive action;
or that the executive may, by his veto, render null and ineffective the acts of legislature and thus
effectually thwart the purposes of the majority, is no reply to the argument presented. These are

merely the checks and balances made by the people through the constitution inherent in the form of
government for its preservation as an effective institution. Without them the government would
collapse like a house of cards. In spite of these checks and balances, if not by reason of them, the
fundamental departments of the government are independent of each other in the truest sense of the
word. The quality of government consists in their remaining so.
It must not be forgotten that there is a great difference, intrinsically and in result, between the power
to declare the executed acts of the chief executive illegal and void, and the power to hold him
personally responsible in damages resulting from such acts. In the one case the results are. in a real
sense, entirely impersonal. No evil to him directly flows from such acts. He is secure in his person
and estate. In the other, he is directly involved personally in a high and effective responsibility. His
person and estate are alike in danger. In the one case he acts freely and fearlessly without fear of
consequences. In the other he proceeds with fear and trembling, not knowing, and being wholly
unable to know, when he will be called upon to pay heavy damages to some person whom he has
unconsciously injured.
The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority
to touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and restrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either, that a person injured by
the executive authority by an act unjustifiable under the law has no remedy, but must submit in
silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts
and the members of the Legislature, may not be personally mulcted in civil damages for the
consequences of an executed in the performance of his official duties. The judiciary has full power
to, and will, when the matter is properly presented to it and the occasion justly warrants it, declare an
act of the Governor-General illegal and void and place as nearly as possible in status quo any
person who has been deprived of his liberty or his property by such act. This remedy is assured
every person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can not do is
to mulct the Governor-General personally in damages which result from the performance of his
official duty, any more than it can a member of the Philippine Commission or the Philippine
Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be personally sued at
all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears
from the discussion heretofore had, particularly that portion which touched the liability of judges and
drew an analogy between such liability and that of the Governor-General, that the latter is liable
when he acts in a case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act. What is held here is that
he will be protected from personal liability for damages not only when he acts within his authority, but
also when he is without authority, provided he actually used discretion and judgment, that is, the
judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to
protection in determining the question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men, reasonably qualified for that
position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two
such men could not honestly differ over its determination. In such a case, he acts, not as GovernorGeneral, but as a private individual, and, as such, must answer for the consequences of his act.
The attorneys for the defendant in the action before us earnestly contend that even though the
Governor-General is not liable, his agents, Harding and Trowbridge, are. In support of that
contention they cite numerous authorities. One of those is Little vs. Barreme (2 Cranch, 170). This

was a case in which obeyed certain instructions emanating from the President of the United States
which were not strictly warranted by the law under which said instructions were given; and had
seized a ship not subject to seizure under the law. The attorneys for the defendant cite that portion of
the opinion of Mr. Chief Justice Marshall in that case which reads as follows:
These orders given by the executive under the construction of the Act of Congress made by
the department to which its execution was assigned, enjoined the seizure of American
vessels sailing from a French port. Is the officer who obeys them liable for damages
sustained by this misconstruction of the Act, or will his orders excuse him? If his instructions
afford him no protection, then the law must take its course, and he must pay such damages
as are legally awarded against him; if they excuse an act not otherwise excusable, it would
then be necessary to inquire whether this is a case in which the probable cause which
existed to induce a suspicion that the vessel was American, would excuse the captor from
damages when the vessel appeared in fact to be neutral.
I confess the first bias of my mind was very strong in favor of the opinion that though the
instructions of the executive could not give a right, they might yet excuse from damages. I
was much inclined to think that a distinction ought to be taken between the acts of civil and
those of military officers; and between proceedings within the body of the country and those
on the high seas. That implicit obedience which military men usually pay to the orders of their
superiors which indeed is indispensably necessary to every military system, appeared to me
strongly to imply the principle that those orders, if not to perform a prohibited act, ought to
justify the person whose general duty it is to obey them, and who is placed by the laws of his
country in a situation which in general requires, that he should obey them. I was strongly
inclined to think that where, in consequence of orders from the legitimate authority, a vessel
is seized with pure intention, the claim of the injured party for damages would be against that
government from which the orders proceeded, and would be a proper subject for negotiation.
But I have been convinced that I was mistaken, and I have receded from this first opinion, I
acquiesce in that of my brethren, which is, that the instructions can not change the nature of
the transaction, or legalize an act which, without those instructions, would have been a plain
trespass.
The case cited is distinguished from the case at bar in that in that case the duty to exercise judgment
as to what vessels should be seized was placed, by express provisions of the law, upon the
commander of the American warship. No duty whatever was placed upon the President of the United
States. Under the law he might, if he chose, give instructions to commanders of American war
vessels to subject to examination any ship or vessel of the United Stated on the high seas which
there might be reason to suspect was engaged in commerce contrary to the tenor of the law; but the
duty of action, using judgment and discretion as to whether or not a given ship was susceptible of
seizure under said law, was placed wholly upon the commander o the vessel. This appears from
reading the Act. Section 5 thereof provides as follows:
That it shall be lawful for the President of the United States to give instructions to the
commanders of the public armed ships of the United States to stop and examine any ship or
vessel of the United States on the high seas which there may be reason to suspect to be
engaged in any traffic or commerce contrary to the true tenor hereof; and if, upon
examination, it shall appear that such ship or vessel is bound sailing to any port or place
within the territory of the French Republic, or her dependencies, contrary to the intent of this
Act, it shall be the duty of the commander of such public armed vessel to seize every ship or
vessel engaged in such illicit commerce, and send the same to the nearest port in the United
States; and every such ship or vessel, thus bound or sailing to any such port or place, shall,

upon due proof thereof, be liable to the like penalties and forfeitures as are provided in and
by the first section of this Act.
Under the law as quoted, the commander was acting for himself, upon his own responsibility. He has
no authority whatever from the President of the United States to act in a given way, or at a particular
time, or upon a given ship, or upon a given set of facts. He was controlled entirely by the provisions
of the law, not by the orders or instructions of the President. The source of his authority was the Act,
not the President. He was acting for himself, as principal, upon whom lay all of the obligation and all
of the responsibility and whose duties were clearly specified in the Act, and not as agent or servant
of the President. He was acting in the performance of his own duty, and not in the performance of a
duty laid upon the President of the United States.
In the case at bar no duty whatever was laid upon Harding or Trowbridge. The only duty, if there was
a duty connection with the act performed, was laid upon the Governor-General personally. If the law
was as the supposed it to be, it was his duty and not their duty which they were performing. They
acted not as principals upon whom an obligation was directly or indirectly laid by law. They were at
the time merely the hands of the Governor-General.
The case of Trace vs. Swartwout (10 Peters, 80), is distinguishable upon the same grounds.
In the case of Marbury vs. Madison (1 Cranch, 137), the court said (p. 164):
By the constitution of the United States the President is invested with certain important
political powers, in the exercise of which he is use to his own discretion, and is accountable
only to his country in his political character, and to his own conscience. To aid him in the
performance of these duties, he is authorized to appoint certain officers, who act by his
authority, and in conformity with his orders. In such cases, their acts are his acts; and
whatever opinion may be entertained of the manner in which executive discretion may be
used, still there exists, and can exist, no power to control that discretion. The subjects are
political: they respect the nation, not individual rights, and being entrusted to the executive,
the decision of the executive is conclusive. The application of this remark will be received, by
adverting to the Act of Congress for establishing the department of foreign affairs. This
officer, as his duties were prescribed by that Act, is to conform precisely to the will of the
President: he is the mere organ by whom that will is communicated. The acts of such an
officer, as an officer, can never be examinable by the courts. But when the legislature
proceeds to impose on that officer other duties; when he is directed peremptorily to perform
certain acts; when the rights of individuals are dependent on the performance of those acts;
he is so far his conduct; and can not, at his discretion, sport away the vested rights of others.
I do not discuss here the other citations made by the attorneys for the defendant for the reason that
those authorities exclusively to the liability of executive officers of the Government occupying
subordinate positions, who were creatures of the legislature and not of the constitution, and whose
duties are specified by the law under which they acted and were by nature different from those laid
upon the chief executive. As we have distinctly stated heretofore, the rule of liability, herein set forth,
applicable to the chief executive is not applied in this opinion to those occupying subordinate
positions. The principle of the nonliability of the chief executive rests in public policy. It is not held in
this case that public policy reaches persons other than those who, in the highest sense, constitute
the coordinate departments of the government. That question is not involved and is not discussed.
I have looked in vain for any logical reason which requires us to hold Harding and Trowbridge liable
when the person whose act they were in reality performing is himself free from responsibility.

G.R. No. 191193

November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
GODOFREDO MARIANO y FELICIANO and ALLAN DORINGO y GUNAN, Accused-Appellants.
DECISION
PEREZ, J.:
Assailed in this appeal is the Decision1 of the Court of Appeals dated 9 November 2009 in CA-G.R.
CR-H.C. No. 03343 affirming the 5 March 2008 Decision2 of the Regional Trial Court of Sorsogon
City, Branch 65, finding appellants Godofredo Mariano Y Feliciano (Godofredo) guilty of the crimes
of illegal sale of shabu and illegal possession of drug paraphernalia, and Allan Doringo y
Gunan3 (Allan) guilty of the illegal sale of shabu.
On the one hand, Godofredo was charged with the offenses of violation of Sections 5 and 12, Article
II of Republic Act No. 9165 in two (2) separate Informations, which read:
Criminal Case No. 04-706
That on or about the 17th day of October, 2004, at around 10:45 oclock in the morning, at Zone 2,
Municipality of Bulan, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, without any authority of law, did then and there, willfully,
unlawfully and feloniously sell, deliver, dispose, distribute and/or give away for value two (2)
transparent plastic sachets containing methamphetamine hydrochloride locally known as "Shabu", a
prohibited drugs (sic), containing 0.5680 gram to a poseur-buyer in exchange of One Thousand
Peso Bill.4
Criminal Case No. 04-707
That on or about the 17th day of October, 2004, at around 10:45 oclock in the morning, at Zone 2,
Municipality of Bulan, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there, willfully, unlawfully and feloniously, have in his
possession, custody and control one (1) aluminum foil, one (1) aluminum tooter and one (1) lighter
which are used and intended to be used for smoking, consuming, administering, injecting, ingesting,
or introducing any dangerous drug into the body, without any authority of law.5
Allan, on the other hand, was charged with violation of Section 5, Article II of Republic Act No. 9165.
The accusatory portion of the Information reads:
That on or about the 17th day of October, 2004, at around 10:45 oclock in the morning, at Zone 2,
Municipality of Bulan, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, without any authority of law, did then and there, willfully,
unlawfully and feloniously, sell, deliver, dispose, distribute and/or give away for value two (2)
transparent plastic sachets containing methamphetamine hydrochloride locally known as "Shabu", a

prohibited drugs (sic), containing 0.1996 gram to a poseur-buyer in exchange of Six Hundred Peso
Bill.6
The facts, according to the evidence for the prosecution, follow.
Acting on an informants tip, a buy-bust team was formed composed of SPO1 Reginal Goez (SPO1
Goez), the team leader, with PO1 David Olleres, Jr. (PO1 Olleres) as the poseur-buyer, and police
back-ups, PO3 Virgilio Razo (PO3 Razo), and a certain PO1 Pabrigas, and an unidentified member
of the Philippine Drug Enforcement Agency (PDEA).7 SPO1 Goez produced the marked money
consisting of one (1) One Thousand Peso bill and six (6) One Hundred Peso bills. PO1 Olleres
placed his initials on the marked bills.8 On 17 October 2004, the team conducted a buy-bust
operation in the house of a certain Gerry Angustia located at Pier Uno, Zone 2, Bulan, Sorsogon.
PO1 Olleres, PO3 Razo and the asset proceeded to the target house and they witnessed an
ongoing pot session. They looked for "Galog" and they were introduced to Godofredo. They asked
Godofredo if they can "score." Godofredo immediately left the house and went to a street at the back
of the house. He returned carrying two (2) sachets of shabu, which he handed to PO1 Ollares. In
exchange, PO1 Olleres paid him the One Thousand Peso marked bill. Allan also offered PO3 Razo
two (2) more sachets of shabu. The latter asked for the Six Hundred Peso marked bills from PO1
Olleres and handed them to Allan as payment for the shabu. After these exchanges, they requested
appellants for an actual test of shabu. Godofredo provided them with a tooter and aluminum foil.
While they were testing said shabu, they declared an arrest.9 PO1 Olleres and PO3 Razo identified
the appellants in open court.10
An Affidavit of Arrest was prepared and signed by PO1 Olleres and PO3 Razo. 11 PO1 Olleres also
prepared a receipt of the property seized containing his and appellants signatures. 12 The buy-bust
team marked the plastic sachets containing shabu at the crime scene and PO1 Olleres brought the
seized items to the Philippine National Police (PNP) Crime Laboratory.13 They also took photographs
of the items confiscated and of appellants.
In Chemistry Report No. D-174-04 dated 18 October 2004, Police Inspector Josephine Macura
Clemen, a forensic chemist, found that the specimen submitted to her was Methamphetamine
Hydrochloride, otherwise known as shabu.14
A different version of the incident was presented by the defense. Allan claimed that on 17 October
2004 at around 10:45 a.m., he was near the fence of Jessie Angustias house waiting for a
pumpboat coming from Masbate. He heard someone from inside the house saying "tadihan ta ini" or
"lets taste it." Allan thought that there was food being cooked so he went inside the house. He then
saw shabu scattered on the table while a certain Ludy Gubat (Ludy) was holding an aluminum foil.
He also saw Godofredo and PO1 Ollares. Allan tried to leave but Ludy poked a knife on the left side
of his stomach and held him in the collar. Ludy apparently threatened to stab Allan if the latter did not
go with him. Allan was brought by police officers to the 509th Mobile Group where he was forced to
sign a document without reading its contents. He was eventually transferred to the PNP Station of
Bulan, Sorsogon.15
Godofredo admitted that he was a drug user and that he went to the house of Jessie Angustia to
"score" shabu. Thereat, he saw Ludy and PO1 Olleres sniffing shabu. When Allan arrived, Ludy

cursed him and held him on his shoulders. Ludy pulled out a knife and poked it at Allan. Thereafter,
PO1 Olleres arrested Godofredo. He was boarded in a tricycle and brought to Camp Crame. 16
On 5 March 2008, the RTC rendered judgment finding appellants guilty. The dispositive portion
reads:
WHEREFORE, premises considered, accused Godofredo Mariano y Feliciano and Allan Doringo y
Guban, having been found GUILTY beyond reasonable doubt of Violation of Sections 5 and 12,
Article II of RA 9165 (Comprehensive Dangerous Drugs Act of 2002), respectively, are hereby
sentenced as follows:
a) In Criminal Case No. 04-706 (Violation of Section 5, Article II, RA 9165) accused
Godofredo Mariano y Feliciano is sentenced to suffer the indivisible penalty of LIFE
IMPRISONMENT and a fine of Five Hundred Thousand Pesos (Php500,000.00);
b) In Criminal Case No. 04-707 (Violation of Section 12, Article II, RA 9165) accused
Godofredo Mariano y Feliciano is sentenced to suffer the indeterminate penalty of Six (6)
months and one (1) day to four years and a fine of Ten Thousand Pesos (Php10,000.00);
c) In Criminal Case No. 04-708 (Violation of Section 5, Article II, RA 9165) accused Allan
Doringo y Guban is sentenced to suffer the indivisible penalty of LIFE IMPRISONMENT and
a fine of Five Hundred Thousand Pesos (Php500,000.00).
The dangerous drugs as well as the drug paraphernalia subject matter of the three (3) instant cases
are hereby ordered confiscated and forfeited in favor of the government (Sec. 20, RA 9165) to be
disposed in accordance with the provisions of Section 21 of the same Act. 17
The trial court held that the prosecution was able to establish that the buy-bust operation was
successfully conducted when appellants were caught in flagrante delicto selling drugs, resulting in
their apprehension. The trial court dismissed the defense of alibi and denial over the positive
testimonies of prosecution witnesses.
On appeal, the Court of Appeals on 9 November 2009 issued the challenged Decision denying the
appeal and affirming appellants conviction.
Failing to secure a favorable decision, appellants filed a notice of appeal before this Court. 18
On 22 March 2010, the Court required the parties to simultaneously file their supplemental briefs. 19 In
two separate manifestations, both parties expressed their intention not to file any supplemental brief
since all the issues and arguments have already been raised in their respective Briefs. 20
Appellants maintain that the trial court erred in admitting the seized dangerous drugs and drug
paraphernalia as evidences against them. They assail the validity of their warrantless arrest by
stating that the arresting officers should have secured a warrant because they were already in
possession of pertinent information, such as the identity of their target, upon which an application for
a warrant could be based. Thus, the alleged shabu obtained by virtue of an invalid warrantless arrest

is inadmissible. In addition, appellants question the validity of the inventory receipt in that the signing
was done without the assistance of counsel.
In its appellees brief, the Office of the Solicitor General (OSG) supports the convictions of the
appellants. It justifies the legality of the warrantless arrest of appellants as they were caught in
flagrante delicto. Moreover, the OSG avers that appellants are estopped from questioning the
legality of their arrest having raised them only on appeal.
We deny the appeal.
Appellants were charged and convicted of the crime of illegal sale of dangerous drugs.
Under Section 5, Article II of Republic Act No. 9165, the elements necessary for the prosecution of
illegal sale of drugs are: (1) the identities of the buyer and the seller, the object, and consideration;
and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution
for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place,
coupled with the presentation in court of evidence of corpus delicti. 21
All these elements were duly established by the prosecution. Appellants were caught in flagrante
delicto selling shabu during a buy-bust operation conducted by the buy-bust team. The poseurbuyer, PO1 Olleres, positively testified that the sale took place and that appellants sold the shabu,
thus:
A: At about 10:30 in the morning of that day our team leader instructed me to be with them in
conducting a buy bust operation.
Q: And who was with you at that time?
A: PO3 Razo and an asset.
Q: Where is the venue of the buy bust operation?
A: In the house of a certain Gerry Angustia (sic).
Q: At what time did you proceed to said place more or less?
A: About 10:00 oclock in the morning, Maam, we proceeded to the house of Gerry Angustia (sic). As
per information of our asset, Galog was already on that house.
Q: Who is that Galog that you are referring to?
A: Godofredo Mariano.
Q: When you reached the place of Gerry Angustia (sic), what happened?

A: When we arrived at the scene there was an ongoing pot session but we did not disturb them
because the subject of our operation for the day is Godofredo Mariano and when we arrived we
asked who is Galog and he was introduced to us and so we asked him if we can buy some items
from him.
Q: The place where you proceeded to, Mr. Witness, is it a house?
A: It is just a small house and to our knowledge it was being occupied by Gerry Angustia (sic).
Q: Mr. Witness, what happened when you were there and being introduced to Galog?
A: We talked with him and asked him if we can score and Godofredo Mariano left the house and
went to a street at the back of the house and when he came back he has already with him two (2)
sachets of shabu.
Q: Now, what happened when he returned with two (2) sachets of shabu?
A: Upon arrival of Godofredo Mariano with those two (2) sachets of shabu, we paid him one
thousand (Php1,000.00) pesos and right then and there Allan Doringo approached us and offered to
us to buy also two (2) sachets of shabu.
Q: Did you likewise buy the shabu offered by Allan Doringo?
A: Yes, Maam, Police Officer Razo gave Allan Doringo six hundred (Php600.00) pesos.
Q: Afterwards, what happened?
A: And right after the exchanged of items we requested the two (2) of them to have the actual test of
shabu and while they were testing the shabu we declared arrest.
Q: What do you mean when you say they were actually testing the shabu?
A: They tested the shabu by providing us the totter and aluminum foil and while we were testing the
said shabu we declared arrest.
Q: Is accused Godofredo Mariano present today in court?
A: Yes, Maam.
Q: Please identify him to us?
A: (Witness pointed to a man in a blue strife sweet shirt (sic) who identified himself as Godofredo
Mariano.)
Q: What about accused Allan Doringo (sic), is he present today in court?

A: Yes, Maam.
Q: If you are required to identify him, will you be able to do so?
A: Yes, Maam.
Q: Please go down and identify him?
A: (Witness pointed to a man in black shirt and identified as Allan Doringo when asked.) 22
Simply put, Godofredo produced two (2) plastic sachets containing shabu and gave it to PO1 Olleres
in exchange for P1,000.00. Also, Allan had offered and given two (2) more sachets containing shabu
to PO3 Razo, who in turn, handed him P600.00. PO3 Razo corroborated the account of PO1
Olleres, to wit:
Q: Mr. Witness, on October 17, 2004 at more or less 10:45 in the morning do you still recall your
whereabouts?
A: Yes, Maam.
Q: Will you please tell us where?
A: On October 17, 2004 at 10:45 a.m. from the camp we proceeded to the house of Gerry Angustia
(sic).
Q: And what was your purpose in going to the house of Gerry Angustia (sic)?
A: To conduct a buy bust operation.
Q: By the way, where is that house of Gerry Angustia (sic) located?
A: At pier Uno of Zone 2, Bulan, Sorsogon just in front of the Coast Guard.
Q: Okay, when you proceeded to the house of Gerry Angustia (sic) to conduct buy bust operation,
who was with you at that time?
A: PO3 David F. Olleres, Jr. and our asset.
Q: When you proceeded to the house of Gerry Angustia (sic) and when you arrived at the house of
Gerry Angustia (sic) what happened next?
A: While at the house of Gerry Angustia (sic), Godofredo Mariano offered to our asset to taste the
shabu and he also offered two (2) sachets of shabu worth Php1,000.00 to PO3 David Olleres, Jr.
while this Allan Doringo persuaded us to buy also two (2) sachets of shabu which was offered to
PO3 Olleres who gave him also Php600.00 pesos.

Q: What did Olleres do when he was offered this shabu by Godofredo Mariano?
A: He received the two (2) sachets of shabu from Godofredo Mariano and gave Godofredo Mariano
the Php1,000.00 bill then PO3 David Olleres identified himself to Godofredo Mariano.
Q: Now, before Olleres identified himself as a police officer, did you already buy the shabu from Allan
Doringo?
A: Godofredo Mariano sold his shabu to PO3 David Olleres while this Allan Doringo insisted to me to
buy his shabu for Php600.00 pesos.
Q: And what did you do when Allan Doringo offered you this shabu in the amount of Php600.00.
A: I get Php600.00 from David Olleres and paid Allan Doringo the same amount after I received from
him the shabu.
Q: Then what happened afterwards?
A: Then after that we introduced ourselves as police officers and we brought them to the camp for
police investigation.
Q: Are accused Allan Doringo and Godofredo Mariano present today in court?
A: Yes, Maam.
Q: If you are required to identify them, will you be able to do so?
A: Yes, Maam.
Q: Please point at them?
A: (The witness pointed to a man in yellow shirt who identified himself as Allan Doringo when asked
and also the witness pointed to a man in black shirt and identified himself as Godofredo Mariano
when asked.)23
The result of the laboratory examination confirmed the presence of methamphetamine hydrochloride
on the white crystalline substances inside the four (4) plastic sachets confiscated from appellants.
The marked money was presented in evidence. Thus, the delivery of the illicit drug to PO1 Olleres
and PO3 Razo and the receipt by appellants of the marked money successfully consummated the
buy-bust transaction.
Godofredo was further charged and convicted of illegal possession of drug paraphernalia. The
elements of illegal possession of equipment, instrument, apparatus and other paraphernalia for
dangerous drugs under Section 12, Article II, Republic Act No. 9165 are: (1) possession or control by
the accused of any equipment, apparatus or other paraphernalia fit or intended for smoking,

consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body; and
(2) such possession is not authorized by law.24
The prosecution has convincingly established that Godofredo was in possession of drug
paraphernalia such as aluminum foil, aluminum tooter and lighter, all of which were offered in
evidence.25 The corresponding receipt and inventory of the seized shabu and other drug
paraphernalia were likewise presented in evidence.26 Police Superintendent Leonidas Diaz Castillo
attested to the veracity of the contents of these documents.27
While both appellants admitted their presence in the scene of the crime, they both denied the
existence of a buy-bust operation.
The defense of denial, like alibi, has been viewed by the court with disfavor for it can just as easily
be concocted. Denial in drug cases requires strong and convincing evidence because of the
presumption that the law enforcement agencies acted in the regular performance of their official
duties. Bare denials of appellants cannot prevail over the positive testimonies of the three police
officers. Moreover, there is no evidence of any improper motive on the part of the police officers who
conducted the buy-bust operation to falsely testify against appellants. 28
Appellants insistence on the illegality of their warrantless arrest equally lacks merit. Section 5, Rule
113 of the Rules of Court allows a warrantless arrest under any of the following circumstances:
Sec 5. Arrest without warrant, when lawful A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.
In the instant case, the warrantless arrest was effected under the first mode or aptly termed as in
flagrante delicto. PO1 Olleres and PO3 Razo personally witnessed and were in fact participants to
the buy-bust operation. After laboratory examination, the white crystalline substances placed inside
the four (4) separate plastic sachets were found positive for methamphetamine hydrochloride or
shabu, a dangerous drug. Under these circumstances, it is beyond doubt that appellants were
arrested in flagrante delicto while committing a crime, in full view of the arresting team.
Anent the absence of counsel during the execution of an inventory receipt, we agree with the
conclusion of the appellate court that notwithstanding the inadmissibility of the inventory receipt, the
prosecution has sufficiently proven the guilt of appellants, thus:

Admittedly, it is settled that the signature of the accused in the "Receipt of Property Seized" is
inadmissible in evidence if it was obtained without the assistance of counsel. The signature of the
accused on such a receipt is a declaration against his interest and a tacit admission of the crime
charged. However, while it is true that appellants signed receipt of the property seized unassisted by
counsel, this only renders inadmissible the receipt itself.
1wphi1

In fact, in the case at bar, the evidentiary value of the Receipt of Property Seized is irrelevant in light
of the ample evidence proving appellants guilt beyond reasonable doubt. The prosecution was able
to prove that a valid buy-bust operation was conducted to entrap appellants. The testimony of the
poseur-buyer clearly established that the sale of shabu by appellant was consummated. The corpus
delicti, which is the shabu, was presented in court and confirmed by the other members of the buybust team. They acknowledged that they were the same drugs placed in four (4) plastic sachets
seized from appellants.29
In fine, it has been established by proof beyond reasonable doubt that appellants sold shabu. Under
Section 5, Article II of Republic Act No. 9165, the penalty of life imprisonment to death and fine
ranging from P500,000.00 to P1,000,000.00 shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved. Hence, the trial court, as affirmed by the Court of
Appeals, correctly imposed the penalty of life imprisonment and a fine of P500,000.00. As to
Godofredo who was further convicted of illegal possession of drug paraphernalia, Section 12, Article
II of Republic Act No. 9165 imposes the penalty of imprisonment ranging from six (6) months and
one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty
thousand pesos (P50,000.00) upon any person, who unless authorized by law, shall possess or
have under his/her control any equipment, instrument, apparatus and any other paraphernalia fit or
intended for smoking, consuming, administering, injecting, or introducing any dangerous drug into
the body.
Based on the foregoing rules, we also affirm the imposition of penalties by the trial court.
WHEREFORE, premises considered, the Decision dated 9 November 2009 of the Court of Appeals
in CA-G.R. CR-H.C. No. 03343 which, in turn, affirmed the Decision dated 5 March 2008 of the
Regional Trial Court, Branch 65, Sorsogon City, in Criminal Cases Nos. 04-706, 04-707, and 04-708,
is AFFIRMED in toto.
SO ORDERED.
G.R. No. 201363

March 18, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NAZARENO VILLAREAL y LUALHATI, Accused-Appellant.
DECISION

PERLAS-BERNABE, J.:
This is an appeal from the May 25, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
31320 which affirmed in toto the December 11, 2007 Decision 2
of the Regional Trial Court of Caloocan City, Branch 123 (RTC), convicting appellant Nazareno
Villareal y Lualhati (appellant) of violation of Section 11, Article II of Republic Act No. 9165 3 (RA
9165) and sentencing him to suffer the penalty of imprisonment for twelve (12) years and one (1)
day to fourteen (14) years and eight (8) months and to pay a fine of P300,000.00.
The Factual Antecedents
On December 25, 2006 at around 11:30 in the morning, as PO3 Renato de Leon (PO3 de Leon) was
driving his motorcycle on his way home along 5th Avenue, he saw appellant from a distance of about
8 to 10 meters, holding and scrutinizing in his hand a plastic sachet of shabu. Thus, PO3 de Leon, a
member of the Station Anti-Illegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan City,
alighted from his motorcycle and approached the appellant whom he recognized as someone he had
previously arrested for illegal drug possession.4
Upon seeing PO3 de Leon, appellant tried to escape but was quickly apprehended with the help of a
tricycle driver. Despite appellants attempts to resist arrest, PO3 de Leon was able to board appellant
onto his motorcycle and confiscate the plastic sachet of shabu in his possession. Thereafter, PO3 de
Leon brought appellant to the 9th Avenue Police Station to fix his handcuffs, and then they
proceeded to the SAID-SOU office where PO3 de Leon marked the seized plastic sachet with
"RZL/NV 12-25-06," representing his and appellants initials and the date of the arrest. 5
Subsequently, PO3 de Leon turned over the marked evidence as well as the person of appellant to
the investigator, PO2 Randulfo Hipolito (PO2 Hipolito) who, in turn, executed an acknowledgment
receipt6 and prepared a letter request7 for the laboratory examination of the seized substance. PO2
Hipolito personally delivered the request and the confiscated item to the Philippine National Police
(PNP) Crime Laboratory, which were received by Police Senior Inspector Albert Arturo (PSI Arturo),
the forensic chemist.8
Upon qualitative examination, the plastic sachet, which contained 0.03 gram of white crystalline
substance, tested positive for methylamphetamine hydrochloride, a dangerous drug. 9
Consequently, appellant was charged with violation of Section 11, Article II of RA 9165 for illegal
possession of dangerous drugs in an Information10 which reads:
That on or about the 25th day of December, 2006 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did
then and there willfully, unlawfully and feloniously have in his possession, custody and control,
METHYLAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 0.03 gram which, when subjected
to chemistry examination gave positive result of METHYLAMPHETAMIME HYDROCHLORIDE, a
dangerous drug.

CONTRARY TO LAW.
When arraigned, appellant, assisted by counsel de oficio, entered a plea of not guilty to the offense
charged.11
In his defense, appellant denied PO3 de Leons allegations and instead claimed that on the date and
time of the incident, he was walking alone along Avenida, Rizal headed towards 5th
Avenue when someone who was riding a motorcycle called him from behind. Appellant approached
the person, who turned out to be PO3 de Leon, who then told him not to run, frisked him, and took
his wallet which containedP1,000.00.12
Appellant was brought to the 9th Avenue police station where he was detained and mauled by eight
other detainees under the orders of PO3 de Leon. Subsequently, he was brought to the Sangandaan
Headquarters where two other police officers, whose names he recalled were "Michelle" and
"Hipolito," took him to the headquarters firing range. There, "Michelle" and "Hipolito" forced him to
answer questions about a stolen cellphone, firing a gun right beside his ear each time he failed to
answer and eventually mauling him when he continued to deny knowledge about the
cellphone.13 Thus, appellant sustained head injuries for which he was brought to the Diosdado
Macapagal Hospital for proper treatment.14
The following day, he underwent inquest proceedings before one Fiscal Guiyab, who informed him
that he was being charged with resisting arrest and "Section 11." 15 The first charge was eventually
dismissed.
The RTC Ruling
After trial on the merits, the RTC convicted appellant as charged upon a finding that all the elements
of the crime of illegal possession of dangerous drugs have been established, to wit: (1) the appellant
is in possession of an item or object which is identified to be a prohibited drug; (2) that such
possession is not authorized by law; and (3) that the accused freely and consciously possesses said
drug. Finding no ill motive on the part of PO3 de Leon to testify falsely against appellant, coupled
with the fact that the former had previously arrested the latter for illegal possession of drugs under
Republic Act No. 642516 (RA 6425), the RTC gave full faith and credit to PO3 de Leons testimony.
Moreover, the RTC found the plain view doctrine to be applicable, as the confiscated item was in
plain view of PO3 de Leon at the place and time of the arrest.
On the other hand, the RTC gave scant consideration to the defenses of denial and frame-up
proffered by the appellant, being uncorroborated, and in the light of the positive assertions of PO3 de
Leon. It refused to give credence to appellants claim that PO3 de Leon robbed him of his money,
since he failed to bring the incident to the attention of PO3 de Leons superiors or to institute any
action against the latter.
Consequently, the RTC sentenced appellant to suffer the penalty of imprisonment of twelve (12)
years and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of P300,000.00.

The CA Ruling
In its assailed Decision, the CA sustained appellants conviction, finding "a clear case of in flagrante
delicto warrantless arrest"17 as provided under Section 5, Rule 113 of the Revised Rules of Criminal
Procedure. The CA held that appellant "exhibited an overt act or strange conduct that would
reasonably arouse suspicion,"18aggravated by the existence of his past criminal citations and his
attempt to flee when PO3 de Leon approached him.
Citing jurisprudence, the appellate court likewise ruled that the prosecution had adequately shown
the continuous and unbroken chain of custody of the seized item, from the time it was confiscated
from appellant by PO3 de Leon, marked at the police station, turned over to PO2 Hipolito and
delivered to the crime laboratory, where it was received by PSI Arturo, the forensic chemist, up to the
time it was presented in court for proper identification.
The Issue
The sole issue advanced before the Court for resolution is whether the CA erred in affirming in toto
the RTCs Decision convicting appellant of the offense charged.
The Ruling of the Court
The appeal is meritorious.
Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays down the basic rules on lawful
warrantless arrests, either by a peace officer or a private person, as follows:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.
xxx
For the warrantless arrest under paragraph (a) of Section 5 to operate, two elements must concur:
(1) the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.19 On the other hand, paragraph (b) of Section 5

requires for its application that at the time of the arrest, an offense had in fact just been committed
and the arresting officer had personal knowledge of facts indicating that the appellant had committed
it.20
In both instances, the officers personal knowledge of the fact of the commission of an offense is
absolutely required. Under paragraph (a), the officer himself witnesses the crime while under
paragraph (b), he knows for a fact that a crime has just been committed.
In sustaining appellants conviction in this case, the appellate court ratiocinated that this was a clear
case of an "in flagrante delicto warrantless arrest" under paragraphs (a) and (b) of Section 5, Rule
113 of the Revised Rules on Criminal Procedure, as above-quoted.
The Court disagrees.
A punctilious assessment of the factual backdrop of this case shows that there could have been no
lawful warrantless arrest. A portion of PO3 de Leons testimony on direct examination in court is
revelatory:
FISCAL LARIEGO: While you were there at 5th
Avenue, was there anything unusual that transpired?
PO3 DE LEON: Yes Maam.
Q: What was this incident?
A: While I was on board my motorcycle on my home, I saw a man looking at the shabu in his hand,
Maam.
Q: And exactly what time was this?
A: Around 11:30 in the morning, Maam.
Q: How far were you from this person that you said was verifying something in his hand?
A: Eight to ten meters, Maam.
Q: What exactly did you see he was verifying? A: The shabu that he was holding, Maam.
Q: After seeing what the man was doing, what did you do next?
A: I alighted from my motorcycle and approached him, Maam.
Q: In the first place why do you say that what he was examining and holding in his hand was a
shabu?

A: Because of the numerous arrests that I have done, they were all shabu, Maam. 21 (Underscoring
supplied)
On the basis of the foregoing testimony, the Court finds it inconceivable how PO3 de Leon, even
with his presumably perfect vision, would be able to identify with reasonable accuracy, from a
distance of about 8 to 10 meters and while simultaneously driving a motorcycle, a negligible and
minuscule amount of powdery substance (0.03 gram) inside the plastic sachet allegedly held by
appellant. That he had previously effected numerous arrests, all involving shabu, is insufficient to
create a conclusion that what he purportedly saw in appellants hands was indeed shabu.
Absent any other circumstance upon which to anchor a lawful arrest, no other overt act could be
properly attributed to appellant as to rouse suspicion in the mind of PO3 de Leon that he (appellant)
had just committed, was committing, or was about to commit a crime, for the acts per se of walking
along the street and examining something in ones hands cannot in any way be considered criminal
acts. In fact, even if appellant had been exhibiting unusual or strange acts, or at the very least
appeared suspicious, the same would not have been sufficient in order for PO3 de Leon to effect a
lawful warrantless arrest under paragraph (a) of Section 5, Rule 113.
Neither has it been established that the rigorous conditions set forth in paragraph (b) of Section 5,
Rule 113 have been complied with, i.e., that an offense had in fact just been committed and the
arresting officer had personal knowledge of facts indicating that the appellant had committed it.
The factual circumstances of the case failed to show that PO3 de Leon had personal knowledge that
a crime had been indisputably committed by the appellant. It is not enough that PO3 de Leon had
reasonable ground to believe that appellant had just committed a crime; a crime must in fact have
been committed first, which does not obtain in this case.
Without the overt act that would pin liability against appellant, it is therefore clear that PO3 de Leon
was merely impelled to apprehend appellant on account of the latters previous charge 22 for the same
offense. The CA stressed this point when it said:
It is common for drugs, being illegal in nature, to be concealed from view. PO3 Renato de Leon saw
appellant holding and scrutinizing a piece of plastic wrapper containing a white powderly substance.
PO3 Renato de Leon was quite familiar with appellant, having arrested him twice before for the
same illegal possession of drug. It was not just a hollow suspicion. The third time around, PO3 de
Leon had reasonably assumed that the piece of plastic wrapper appellant was holding and
scrutinizing also contained shabu as he had personal knowledge of facts regarding appellants
person and past criminal record. He would have been irresponsible to just wait and see and give
appellant a chance to scamper away. For his part, appellant being, in fact, in possession of illegal
drug, sensing trouble from an equally familiar face of authority, ran away. Luckily, however, PO3 de
Leon caught up with him through the aid of a tricycle driver. Appellants act of running away, indeed,
validated PO3 de Leons reasonable suspicion that appellant was actually in possession of illegal
drug. x x x23
1wphi1

However, a previous arrest or existing criminal record, even for the same offense, will not suffice to
satisfy the exacting requirements provided under Section 5, Rule 113 in order to justify a lawful

warrantless arrest. "Personal knowledge" of the arresting officer that a crime had in fact just been
committed is required. To interpret "personal knowledge" as referring to a persons reputation or past
criminal citations would create a dangerous precedent and unnecessarily stretch the authority and
power of police officers to effect warrantless arrests based solely on knowledge of a persons
previous criminal infractions, rendering nugatory the rigorous requisites laid out under Section 5.
It was therefore error on the part of the CA to rule on the validity of appellants arrest based on
"personal knowledge of facts regarding appellants person and past criminal record," as this is
unquestionably not what "personal knowledge" under the law contemplates, which must be strictly
construed.24
Furthermore, appellants act of darting away when PO3 de Leon approached him should not be
construed against him. Flight per se is not synonymous with guilt and must not always be attributed
to ones consciousness of guilt.25 It is not a reliable indicator of guilt without other circumstances, 26 for
even in high crime areas there are many innocent reasons for flight, including fear of retribution for
speaking to officers, unwillingness to appear as witnesses, and fear of being wrongfully
apprehended as a guilty party.27 Thus, appellants attempt to run away from PO3 de Leon is
susceptible of various explanations; it could easily have meant guilt just as it could likewise signify
innocence.
In fine, appellants acts of walking along the street and holding something in his hands, even if they
appeared to be dubious, coupled with his previous criminal charge for the same offense, are not by
themselves sufficient to incite suspicion of criminal activity or to create probable cause enough to
justify a warrantless arrest under Section 5 above-quoted. "Probable cause" has been understood to
mean a reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man's belief that the person accused is guilty of the offense with
which he is charged.28 Specifically with respect to arrests, it is such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been committed by
the person sought to be arrested,29 which clearly do not obtain in appellants case.
Thus, while it is true that the legality of an arrest depends upon the reasonable discretion of the
officer or functionary to whom the law at the moment leaves the decision to characterize the nature
of the act or deed of the person for the urgent purpose of suspending his liberty,30 it cannot be
arbitrarily or capriciously exercised without unduly compromising a citizens constitutionallyguaranteed right to liberty. As the Court succinctly explained in the case of People v. Tudtud: 31
The right of a person to be secure against any unreasonable seizure of his body and any deprivation
of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the
situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the
Rule. We cannot liberally construe the rule on arrests without warrant or extend its application
beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set
back a basic right so often violated and so deserving of full protection.
Consequently, there being no lawful warrantless arrest, the shabu purportedly seized from appellant
is rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. As the

confiscated shabu is the very corpus delicti of the crime charged, appellant must be acquitted and
exonerated from all criminal liability.
WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 31320 is
REVERSED and SET ASIDE. Appellant Nazareno Villareal y Lualhati is ACQUITTED on reasonable
doubt of the offense charged and ordered immediately released from detention, unless his continued
confinement is warranted by some other cause or ground.
SO ORDERED.
G.R. No. 185719

June 17, 2013

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,

vs.
MARCELINO COLLADO Y CUNANAN, MYRA COLLADO Y SENICA, MARK CIPRIANO Y
ROCERO, SAMUEL SHERWIN LATARIO Y ENRIQUE,* AND REYNALDO RANADA Y
ALAS**, ACCUSED-APPELLANTS.
DECISION
DEL CASTILLO, J.:
Mere allegations and self-serving statements will not overcome the presumption of regularity in the
performance of official duties accorded to police officers. There must be a showing of clear and
convincing evidence to successfully rebut this presumption.
On appeal is the February 28, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
02626 which affirmed with modification the December 7, 2005 Decision 2 of the Regional Trial Court
(RTC) of Pasig City, Branch 154 in Criminal Case Nos. 13781-D, 13783-D and 13784-D. The RTC
convicted the appellants and several other accused for violations of Republic Act (RA) No. 9165 or
the Comprehensive Dangerous Drugs Act of 2002, and imposed upon them the penalty of
imprisonment and payment of fine in each of their respective cases.
Factual Antecedents
On October 14, 2004, appellants Marcelino Collado (Marcelino) and Myra Collado (Myra) were
charged with the crimes of sale of dangerous drugs and maintenance of a den, dive or resort in
violation of Sections 5 and 6 of Article II, RA 9165 docketed as Criminal Case Nos. 13781-D and
13782-D, respectively, viz:
CRIMINAL CASE NO. 13781-D
On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the
accused, conspiring and confederating together and both of them mutually helping and aiding one
another, not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously
sell, deliver and give away to PO2 Richard N. Noble, a police poseur buyer, one (1) heat-sealed

transparent plastic sachet containing three (3) centigrams (0.03 gram) of white crystalline substance,
which was found positive to the test for methylamphetamine hydrochloride, a dangerous drug, in
violation of the said law.
Contrary to law.3
CRIMINAL CASE NO. 13782-D
On or about or immediately prior to October 9, 2004, in Pasig City, and within the jurisdiction of this
Honorable Court, the accused, conspiring and confederating together and both of them mutually
helping and aiding one another, did then and there willfully, unlawfully and feloniously maintain a
den, dive or resort located at No. 32 R. Hernandez St., Brgy. San Joaquin, Pasig City, where x x x
dangerous drugs are used or sold in any form, in violation of the said law.
Contrary to law.4
Marcelino was also charged with illegal possession of dangerous drugs under Section 11, Article II of
the same law docketed as Criminal Case No. 13783-D, viz:
CRIMINAL CASE NO. 13783-D
On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the
accused, not being lawfully authorized to possess any dangerous drug, did then and there willfully,
unlawfully and feloniously have in his possession and under his custody and control one (1) heatsealed transparent plastic sachet containing six centigrams (0.06 gram) of white crystalline
substance, which was found to be positive to the test for methylamphetamine hydrochloride, a
dangerous drug, in violation of the said law.
Contrary to law.5
On the other hand, appellants Mark Cipriano (Cipriano), Samuel Sherwin Latario (Latario), Reynaldo
Ranada (Ranada), together with co-accused Melody Apelo (Apelo), Marwin Abache (Abache),
Michael Angelo Sumulong (Sumulong), and Jay Madarang (Madarang), were charged with
possession of drug paraphernalia in violation of Section 14, Article II of RA 9165, docketed as
Criminal Case No. 13784-D, viz:
CRIMINAL CASE NO. 13784-D
On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the
accused, each being in the proximate company of two (2) persons and in conspiracy with one
another, without having been duly authorized by law, did then and there willfully, unlawfully and
feloniously have in their possession and under their custody and control the following paraphernalias
[sic], fit or intended for smoking, consuming, administering or introducing any dangerous drug into
the body, to wit:

a. one (1) strip aluminum foil containing traces of white crystalline substance marked as ExhD;
b. one (1) improvised glass tooter containing traces of white crystalline substance marked as
Exh-D1;
c. one (1) pack transparent plastic sachet marked as Exh-D2;
d. two (2) plastic disposable lighters marked as Exhs. "G-H";
e. one (1) tape-sealed transparent plastic sachet containing three (3) rolled aluminum foil
marked as Exh. D5;
f. five (5) unsealed transparent plastic sachets marked as Exh. D6;
g. one (1) stainless scissor marked as Exh. D7;
h. one (1) rectangular glass marked as Exh. D8; and
i. one (1) roll of aluminum foil marked as Exh. D9.
[Specimens] marked as Exh-D and Exh-D1 were found positive to the test for methylamphetamine
hydrochloride, a dangerous drug, in violation of the said law.
Contrary to law.6
Upon arraignment on November 4, 2004, all the appellants and the other accused pleaded not
guilty.7 Pre-trial and joint trial on the merits subsequently ensued.
Version of the Prosecution
The prosecution presented as witnesses PO2 Richard Noble (PO2 Noble) and SPO2 Bernardo Cruz
(SPO2 Cruz) who were involved in the buy-bust operation that led to the arrest of the appellants.
Their testimonies are summarized as follows:
On October 9, 2004, PO2 Noble received information from a civilian asset that spouses Marcelino
and Myra were engaged in selling shabu and that drug users, including out-of-school youth, were
using their residence in 32 R. Hernandez St., San Joaquin, Pasig City, for their drug sessions. 8 After
recording the report in the police blotter, PO2 Noble relayed the information to his superior, P/Insp.
Earl B. Castillo (P/Insp. Castillo), who in turn ordered the conduct of a surveillance operation. 9 PO2
Noble, SPO2 Cruz and PO1 Anthony Bitbit, conducted a surveillance on the couples residence.
After confirming the reported activities, SPO2 Cruz looked for an asset who could introduce them to
Marcelino and Myra in the ensuing buy-bust operation.10
A buy-bust operation team was thereafter formed. After coordinating with the Philippine Drug
Enforcement Agency as evidenced by a Pre-Operation Report, 11 the team proceeded to Marcelinos

and Myras residence on board two private vehicles. Upon reaching the target area, the asset
introduced PO2 Noble to Marcelino as a regular buyer of shabu. 12 When asked how much shabu he
needed, PO2 Noble replied, "dalawang piso," which means P200.00 worth of drugs. But when PO2
Noble was handing over the marked money to Marcelino, the latter motioned that the same be given
to his wife, Myra, who accepted the money. Marcelino then took from his pocket a small metal
container from which he brought out a small plastic sachet containing white crystalline substance
and gave the same to PO2 Noble. While PO2 Noble was inspecting its contents, he noticed smoke
coming from a table inside the house of the couple around which were seven persons. 13 When PO2
Noble gave the pre-arranged signal, the backup team rushed to the scene. Simultaneously, PO2
Noble introduced himself as a policeman and arrested Marcelino. He frisked him and was able to
confiscate the metal container that contained another sachet of white crystalline substance. PO2
Noble wrote the markings "MCC-RNN October 9, 2004" on both the plastic sachets of white
substance sold to him by Marcelino and the one found inside the metal container.
Meanwhile, SPO2 Cruz and another police officer went inside the house of Marcelino and Myra,
where they found Apelo, Cipriano, Ranada, Abache, Sumulong, Madarang and Latario gathered
around a table littered with various drug paraphernalia such as an improvised water pipe, strips of
aluminum foil with traces of white substance, disposable lighters, and plastic sachets. A strip of
aluminum foil used for smoking marijuana was recovered from Ranada. The buy-bust team arrested
all these persons, advised them of their constitutional rights, and brought them to police
headquarters for investigation and drug testing.
A chemistry report14 on all the seized items yielded positive results for methylamphetamine
hydrochloride. Another chemistry report15 showed Marcelino, Apelo, Cipriano, and Ranada positive
for drug use while Myra, Abache, Sumulong, Madarang, and Latario were found negative.
Version of the Defense
The defense presented the testimonies of Marcelino, Myra, and Ranada, who all essentially put up
the defense of denial. The following is their version of the story.
Marcelino and Myra owned an electronics and appliance repair shop annexed to their house. In the
evening of October 9, 2004, Marcelino was in the living room with his children and nieces fixing a
VCD player. Apelo, their househelp, was in the kitchen preparing food while Ranada, their
repairman, was outside the house fixing Sumulongs motorcycle. Cipriano and Madarang were also
present at the shop, the former to redeem his car stereo and the latter to borrow a play station CD.
Latario, a housemate of Marcelino and Myra, was also present at the time.
Marcelino suddenly heard someone say "Walang tatakbo!" Four armed men rushed inside the house
and pointed their guns at him and said "Wag ka nang pumalag." He was thereafter dragged outside
where he saw the other accused already in handcuffs. Marcelino was later informed that they were
being arrested for selling shabu. Marcelino protested and disclaimed any knowledge about drugs.
When the officers frisked all the accused, Marcelino claimed that nothing illegal nor incriminating was
recovered from them.

When Myra arrived at the scene, she was shocked to see her husband being arrested. The police
officers then brought all the accused to the police station for further questioning.
At the police station, PO2 Noble asked Marcelino for P50,000.00 as settlement of their case.
Marcelino, Apelo, Cipriano, and Ranada were also made to drink water that according to Marcelino
tasted bitter.16 They were then brought to Camp Crame for medical examination and drug tests.
Those who drank the bitter water tested positive for drugs use while the others, who did not drink,
tested negative.
Marcelino surmised that their arrest was due to a misunderstanding he had with a former police
officer named Rey who bought a VCD player from his shop. He specifically instructed Rey not to let
anyone repair the VCD player should it malfunction. However, when the VCD player malfunctioned,
Rey had it repaired by somebody else, hence Marcelino refused to accept the VCD player and return
Reys money. This earned the ire of Rey who threatened him with the words "Humanda ka pagbalik
ko."17
Ruling of the Regional Trial Court
In its Decision18 dated December 7, 2005, the RTC disposed of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
In Crim. Case No. 13781-D, finding the accused MARCELINO COLLADO y Cunanan and MYRA
COLLADO y Senica GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A.
9165 (sale of dangerous drug) and they are hereby sentenced to suffer the penalty of LIFE
IMPRISONMENT.
Additionally, the two accused are ordered to pay a fine of ONE MILLION PESOS (P1,000,000.00)
EACH.
In Crim. Case No. 13782-D, judgment is rendered finding the accused MARCELINO COLLADO y
Cunanan and MYRA COLLADO y Senica NOT GUILTY of the crime of violation of Section 6.
In Crim. Case No. 13783-D, finding the accused MARCELINO COLLADO y Cunanan GUILTY of the
offense of violation of Section 11 of R.A. 9165 and he is hereby sentenced to suffer the
indeterminate penalty of imprisonment of TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15)
YEARS.
The accused Marcelino Collado is also ordered to pay a fine of THREE HUNDRED THOUSAND
PESOS (P300,000.00).
In Crim. Case No. 13784-D, judgment is hereby rendered finding the accused MELODY APELO y
Roman, MARK CIPRIANO y Rocero, MARWIN ABACHE y Aquilino, MICHAEL ANGELO
SUMULONG y Belarmino, JAY MADARANG y Gomez, SAMUEL SHERWIN LATARIO y Enrique and
REYNALDO RANADA y Alas GUILTY of the offense of violation of Section 14 of R.A. 9165 and they
are hereby sentenced to suffer the indeterminate penalty of TWO (2) YEARS, EIGHT (8) MONTHS

and ONE (1) DAY to FOUR (4) YEARS imprisonment. Each of them is also ordered to pay a fine of
TEN THOUSAND PESOS (P10,000.00).
Let the shabu and paraphernalia alleged to be the subject[s] of the Information be turned over and
delivered immediately to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.
SO ORDERED.19
Accused Apelo, Abache, Sumulong and Madarang applied for probation.20 Hence, only Marcelino,
Myra, Cirpriano, Latario and Ranada appealed to the CA.21
Ruling of the Court of Appeals
The appellate court found the warrantless arrest of the appellants to be lawful considering that they
were caught in the act of committing a crime.22 Thus, the CA affirmed the conviction of Marcelino and
Myra for violation of Section 5 of RA 9165 (sale of dangerous drugs), as well as the conviction of
Marcelino for violation of Section 11 of RA 9165 (illegal possession of dangerous drugs). Anent the
violation of Section 14 of RA 9165 (possession of drug paraphernalia), the CA affirmed the
conviction of Ranada as he was caught having custody and control of a drug paraphernalia intended
for smoking and injecting illegal drugs into ones body.23 As regards Cipriano and Latario, as well as
the other accused Apelo, Abache, Sumulong and Madarang, the CA found them guilty not as
principals but only as accessories.
Thus, the appellate court affirmed with modification the trial courts Decision through a
Decision24 dated February 28, 2008, the dispositive portion of which states:
WHEREFORE, the appealed Decision is AFFIRMED with respect to the conviction and imposition of
the respective penalties against the following: (A) appellants Marcelino Collado and Myra Collado in
Crim. Case No. 13781-D25 for violation of Section 5, Article II, RA No. 9165; (B) appellant Marcelino
Collado in Crim. Case No. 13783-D for violation of Section 11, Article II, RA No. 9165; (C) appellant
Reynaldo Ranada in Crim. Case No. 13784-D for violation of Section 14, Article II, RA No. 9165.
In Crim. Case No. 13784-D, MODIFICATION is hereby ordered as to appellants Mark Cipriano and
Samuel Sherwin Latario, including co-accused Melody Apelo, Marwin Abache, Michael Angelo
Sumulong and Jay Madarang insofar as they were found GUILTY, not as principals, but as
ACCESSORIES in the offense of violation of Section 14, Article II of RA No. 9165, in relation to the
aforecited provision of the Revised Penal Code. Each of them shall suffer the straight penalty of
Four (4) Months of arresto mayor. The fine of Ten Thousand Pesos already imposed by the trial court
upon each of them is MAINTAINED.
SO ORDERED.26
Not satisfied, the appellants are now before this Court arguing that irregularities attended their arrest
and detention as well as the procedure in handling the specimen allegedly seized from them.
Because of these, they assert that their guilt was not proven beyond reasonable doubt.

Our Ruling
The appealed Decision should be affirmed, with modification.
The presumption of regularity in the
performance of official duties must
be upheld in the absence of clear and
convincing evidence to overturn the
same.
Appellants question the validity of the buy-bust operation and point out the following irregularities
which they claim attended its conduct: (1) lack of warrant of arrest; (2) non-compliance with the
procedures laid down under Section 21 of RA 9165; and, (3) the alleged extortion of money from
them by PO2 Noble in exchange for dropping the charges against them. Due to these irregularities,
appellants argue that the presumption of regularity in the performance of official duties accorded to
police officers does not apply in this case.
Lack of a warrant of arrest
Appellants argue that the arrest, search, and seizure conducted by the police were illegal since it
was not supported by a valid warrant. They thus posit that their right to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures was violated. 27
Section 5, Rule 113 of the Rules of Court provides for lawful warrantless arrests, viz:
Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to another.
Section 5(a) is what is known as arrest in flagrante delicto. For this type of warrantless arrest to be
valid, two requisites must concur: "(1) the person to be arrested must execute an overt act indicating
that he has just committed, is actually committing, or is attempting to commit a crime; and, (2) such
overt act is done in the presence or within the view of the arresting officer." 28 A common example of
an arrest in flagrante delicto is one made after conducting a buy-bust operation.

This is precisely what happened in the present case. The arrest of the appellants was an arrest in
flagrante delicto made in pursuance of Sec. 5(a), Rule 113 of the Rules of Court. The arrest was
effected after Marcelino and Myra performed the overt act of selling to PO2 Noble the sachet of
shabu and Ranada of having in his control and custody illegal drug paraphernalia. Thus, there is no
other logical conclusion than that the arrest made by the police officers was a valid warrantless
arrest since the same was made while the appellants were actually committing the said crimes.
Moreover, assuming that irregularities indeed attended the arrest of appellants, they can no longer
question the validity thereof as there is no showing that they objected to the same before their
arraignment. Neither did they take steps to quash the Informations on such ground. 29 They only
raised this issue upon their appeal to the appellate court. By this omission, any objections on the
legality of their arrest are deemed to have been waived by them. 30
Anent their claim of unreasonable search and seizure, it is true that under the Constitution, "a search
and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes
unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any
proceeding."31 This proscription, however, admits of exceptions, one of which is a warrantless search
incidental to a lawful arrest.32
The arrest of the appellants was lawful. Under Section 13, Rule 126 of the Rules of Court, "[a]
person lawfully arrested may be searched for dangerous weapons or anything which may have been
used or constitute proof in the commission of an offense without a search warrant." The factual
milieu of this case clearly shows that the search was made after appellants were lawfully arrested.
Pursuant to the above-mentioned rule, the subsequent search and seizure made by the police
officers were likewise valid. Hence, appellants claim of unreasonable search and seizure must fail.
1wphi1

Extortion
Appellants aver that PO2 Noble tried to extort money from them in exchange for dropping the drug
charges against them.
The defense of extortion and/or frame-up is often put up in drugs cases in order to cast doubt on the
credibility of police officers. This is a serious imputation of a crime hence clear and convincing
evidence must be presented to support the same. There must also be a showing that the police
officers were inspired by improper motive. In this case, we find such imputation unfounded.
In People v. Capalad,33 this Court held thus:
Charges of extortion and frame-up are frequently made in this jurisdiction. Courts are, thus, cautious
in dealing with such accusations, which are quite difficult to prove in light of the presumption of
regularity in the performance of the police officers duties. To substantiate such defense, which can
be easily concocted, the evidence must be clear and convincing and should show that the members
of the buy-bust team were inspired by any improper motive or were not properly performing their
duty. Otherwise, the police officers testimonies on the operation deserve full faith and credit.

Here, aside from Marcelinos self-serving testimony, appellants claim of extortion is not
substantiated by other convincing evidence. Neither was it established during trial that PO2 Noble or
the other members of the buy-bust team were impelled by improper motive. Appellants allegation
that PO2 Noble and his team arrested them because of Marcelinos previous misunderstanding with
a certain retired policeman named Rey deserves no credence. No evidence was presented to show
any connection between Rey and the buy-bust team. It was not even shown by the defense who this
person Rey really is. Also, it is highly unlikely that a team of police officers would pursue a
surveillance, conduct a buy-bust operation, and arrest all the accused for a measly P1,000.00 VCD
player. In view of these, appellants allegation of extortion and improper motive deserves no
credence.
Chain of Custody
Appellants argue that the procedure laid down in Section 21 of RA 9165 was not followed. They
specifically harp on the fact that the confiscated drugs were not photographed and inventoried.
Moreover, they contend that the police officers who handled the seized specimen were not
presented in court to testify on the condition in which they received the said specimen. For the
appellants, these defects constitute a clear break in the chain of custody and, consequently, the
prosecution failed to establish corpus delicti.34
The Court, however, finds this argument unmeritorious.
Section 21, paragraph 1, Article II of RA 9165 provides for the custody and disposition of the
confiscated drugs, to wit:
(1) The apprehending officer/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof;
This rule is elaborated in Section 21(a), Article II of the Implementing Rules and Regulations of RA
9165, viz:
a) The apprehending officer/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/ team, whichever is practicable, in case of warrantless seizure; Provided,
further, that non-compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by the apprehending

officer/team, shall not render void and invalid such seizures of and custody over said items.
(Emphasis supplied)
Pursuant to the above-cited provisions, this Court has consistently ruled that the failure of the police
officers to inventory and photograph the confiscated items are not fatal to the prosecutions
cause,35 provided that the integrity and evidentiary value of the seized substance were preserved, as
in this case. Here, PO2 Noble, after apprehending Marcelino and confiscating from him the sachets
of shabu, immediately placed his markings on them. He testified thus:
PROSECUTOR PAZ:
Q: What did you do with that sachet containing white substance that was bought from Marcelino and
the one that you were able to confiscate from him?
A: I put my markings.
Q: What were those markings?
A: MCC-RNN October 9, 2004.36
In the Request for Laboratory Examination37 the seized items were listed and inventoried. After the
conduct of the laboratory examination, Chemistry Report No. D-807-0438 revealed that the contents
of the said sachets tested positive for methylamphetamine hydrochloride or shabu.
Moreover, it is of no moment that Forensic Chemist Alejandro De Guzman who conducted the
laboratory examination was not presented as a witness. The non-presentation as witnesses of other
persons who had custody of the illegal drugs is not a crucial point against the prosecution. 39 There is
no requirement for the prosecution to present as witness in a drugs case every person who had
something to do with the arrest of the accused and the seizure of the prohibited drugs from him. 40 To
stress, the implementing rules are clear that non-compliance with the requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items.41
Criminal Case No. 13784-D
With regard to Criminal Case No. 13784-D for illegal possession of drug paraphernalia, we find it
imperative to re-examine the findings of both the RTC and the CA.
The RTCs findings are as follows:
The evidence for the prosecution clearly shows that certain things or paraphernalia which are fit or
intended [for] smoking shabu were found in the house of the accused Marcelino and Myra Collado
on the same occasion that the said spouses were arrested by the police officers. This fact makes all
the accused without exception liable for violation of Section 14. While it was only Reynaldo Ranada
who was caught having in his possession an item used in smoking marijuana, i.e., a strip of

aluminum foil x x x and nothing was found in the possession of the other accused, this fact
nonetheless does not render Reynaldo Ranada the only person liable for violation of Section 14.
[Take note] that the law speaks not only of possession but also of having under ones control the
paraphernalia intended for smoking. In the instant case, the paraphernalia were found by the police
on top of the table around which the accused were gathered. Hence, even if the x x x accused other
than Ranada did not have in their possession any of the paraphernalia, it can, however, be said that
the paraphernalia found on top of the table were under their control. x x x42
Thus, the RTC found Ranada, Cipriano, Latario, Apelo Abache, Sumulong and Madarang all equally
guilty of illegal possession of drug paraphernalia.
On appeal, however, the CA found Ranada guilty as principal while Cipriano, Latario, Apelo, Abache,
Sumulong and Madarang were adjudged as accessories only for the crime of illegal possession of
drug paraphernalia. The CA ratiocinated thus:
On the one hand, we sustain the conviction of Raada in Crim. Case 13784-D. He was actually
caught having custody and control of the confiscated drug paraphenalia intended for smoking,
injecting, etc. into ones body. It was also indubitably shown that he failed to present authority to
possess the prohibited articles, much less, an explanation of his possession thereof. However, as
regards the other accused who were seen in the company of Raada, the evidence of conspiracy
against them was insufficient.
To hold an accused guilty as co-principal by reason of conspiracy, he must be shown to have
performed an overt act in pursuance or furtherance of the complicity. Responsibility of a conspirator
is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral
acts and offenses incident to and growing out of the purpose intended.
It may be that appellants Mark Cipriano and Samuel Sherwin Latario and co-accused Melody Apelo,
Marwin Abache, Michael Angelo Sumulong, Jay Madarang were in close proximity [to] Raada at the
time and place of the incident. But mere presence at the scene of the crime does not imply
conspiracy. The prosecution failed to show specific overt acts that would link these accused to
Ranadas possession of the said contrabands. As to why they were there [in] the vicinity of the crime
scene was not explained. They could be mere innocent onlookers although they were aware of the
illegality of the principals acts.
In any event, appellants Cipriano and Latario and the rest of the accused cannot be totally
exonerated. [However, we] downgrade their culpability corresponding to their criminal design and
participation. Evidently, they are guilty as accessories who, according to paragraph 1, Article 19 of
the Revised Penal Code, are criminally liable by profiting themselves or assisting the offender to
profit by the effects of the crime.43
1wphi1

We find that the CA erred in convicting Cipriano, Latario, Apelo, Abache, Sumulong and Madarang
as accessories. As pointed out by Justice Arturo D. Brion:

"[I]llegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous
drugs during parties, social gatherings or meetings under Section 14 of R.A. No. 9165 is a crime of
malum prohibitum, that is, the act is made wrong or evil because there is a law prohibiting it. x x x
Since violation of Section 14 of R.A. No. 9165 is a crime of mala prohibita, the degree of
participation of the offenders is not considered. All who perpetrated the prohibited act are penalized
to the same extent. There is no principal or accomplice or accessory to consider. In short, the degree
of participation of the offenders does not affect their liability, and the penalty on all of them are the
same whether they are principals or merely accomplices or accessories. 44
In addition, Section 98 of RA 9165 specifically provides that "[n]otwithstanding any law, rule or
regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended,
shall not apply to the provisions of this Act, except in the case of minor offenders. Where the
offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein
shall be reclusion perpetua to death." It is therefore clear that the provisions of the Revised Penal
Code, particularly Article 19 on Accessories, cannot be applied in determining the degree of
participation and criminal liability of Ranadas co-accused.
At any rate, this Court is convinced that only Ranada should be held liable for violation of Section 14
of RA 9165. It is clear that it was only Ranada who was caught having in his possession an
aluminum foil intended for using dangerous drugs.45 As to the other co-accused, namely Apelo,
Abache, Cipriano, Latario, Madarang, and Sumulong, not one drug paraphernalia was found in their
possession. The police officers were only able to find the other drug paraphernalia scattered on top
of a table. It is already established that there was no conspiracy between Ranada and the other coaccused. As the CA correctly held, mere presence at the scene of the crime does not imply
conspiracy.46
PO2 Noble, when placed on the witness stand, only testified as follows:
AWhile I was checking the item that I bought, I saw several persons inside their house.
QWhat were these persons doing?
ASome were seated, some were standing and there was x x x smoke.
QWhere was this smoke coming from?
A-

I did not see where the smoke [was] coming from because some of the persons were blocking [my
view].
QAbout how many persons were inside who were seated and who were standing?
ASeven (7).
QWill you tell us if they are male or female or both?
ASix (6) male persons and one (1) female.
QWhat are these persons who were seated inside the house doing?
AThey were allegedly engaged in drug session.
COURT:
QWhat do you mean allegedly?
ABecause there was smoke and I did not see what they were using.
PROSECUTOR PAZ:
QWhat about those who were standing, what were they doing?
A-

The persons who were standing were looking at the persons who were sitting. I could not see them
clearly because some of them were blocking my view.
QHow far were they, those who were seated and those who were standing?
AThey were close to each other.
QHow long did you take a look at these persons inside the house?
AOnly for a while, only for a glance, sir.47
On the other hand, SPO2 Bernardo Cruz testified that it was only Ranada who was caught holding
the aluminum foil, viz:
QHow about the aluminum foil that you recovered from another?
AI saw him holding the strip of aluminum foil, sir.
QSo, nothing was confiscated in the person of all other accused except for Ranada?
AYes, sir.48
Therefore, Apelo, Abache, Cipriano, Latario, Madarang, and Sumulong should be acquitted of the
charge of violation of Section 14, RA 9165 on possession of equipment, instrument, apparatus and
other paraphernalia for dangerous drugs.
All told, this Court upholds the presumption of regularity in the performance of official duties by the
police officers involved in this case. The defense was not able to show by clear and convincing
evidence why the presumption should be overturned. The prosecution, on the other hand, was able
to establish that Marcelino, Myra and Ranada committed the crimes imputed against them, they

having been caught in flagrante delicto. This Court, being convinced that the guilt of Marcelino,
Myra, and Ranada have been proven beyond reasonable doubt, must uphold their conviction.
As to Apelo, Abache, Cipriano, Latario, Madarang, and Sumulong, the Court finds that they should
be acquitted of the offense of violation of Section 14, Article II, RA 9165, since the prosecution was
not able to clearly show specific overt acts that would prove that they were in possession of drug
paraphernalia.
WHEREFORE, the appeal is PARTLY GRANTED. The February 28, 2008 Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 02626 is AFFIRMED with MODIFICATION that appellants Mark
Cipriano and Samuel Sherwin Latario, including co-accused Melody Apelo, Marwin Abache, Michael
Angelo Sumulong, and Jay Madarang are hereby ACQUITTED of the crime of violation of Section
14, Article II of Republic Act No. 9165. They are ordered released unless they are being lawfully held
for some other cause.
SO ORDERED.
G.R. No. 175604

April 10, 2008

THE PEOPLE OF THE PHILIPPINES, appellee,

vs.
SALVADOR PEAFLORIDA, JR., Y CLIDORO, appellant.
DECISION
TINGA, J.:
Subject of this appeal is the Decision1 of the Court of Appeals in CA-G.R. CR No. 01219, dated 31
July 2006, affirming in toto the judgment2 of the Regional Trial Court of Camarines Sur, Branch 30, in
Criminal Case No. T-1476. The trial court found appellant Salvador Peaflorida y Clidoro guilty of
transporting marijuana and sentenced him to suffer the penalty of reclusion perpetua and to pay a
fine of one million pesos.
The Information against appellant reads:
That on or about the 7th day of June, 1994, in the afternoon thereat, at Barangay Huyonhuyon, Municipality of Tigaon, Province of Camarines Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to sell, possess
and to deliver with the use of a bicycle, did then and there, willfully, unlawfully and feloniously
have in his possession, control and custody, [o]ne bundle estimated to be one (1) kilo more
or less, of dried marijuana leaves (Indian Hemp) without the necessary license, permit or
authority to sell, administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug from a competent officer as required by law.
ACTS CONTRARY TO LAW.3

Upon arraignment, appellant pleaded not guilty. Trial ensued.

Two police officers and one forensic chemist testified for the prosecution.
SPO3 Vicente Competente (Competente) narrated that in his capacity as chief of the Investigation
and Operation Division of the Philippine National Police (PNP) station in Tigaon, Camarines Sur, that
he received a tip from an asset that a bundle of marijuana was being transported by appellant to
Huyon-huyon from another barangay in Tigaon, Camarines Sur.4 Major Domingo Agravante
(Agravante), chief of police of Tigaon, then organized a team composed of Competente as team
leader, SPO2 Ricardo Callo (Callo), SPO1 Portugal, PO3 Pillos and PO2 Edgar Latam. The team
boarded the police mobile car and proceeded to Sitio Nasulan in Barangay Huyon-huyon. 5 They
overtook appellant who was on a bicycle. The police officers flagged appellant down and found
marijuana wrapped in a cellophane and newspaper together with other grocery items. The amount
of P1550.00 was also found in appellant's possession. The police officers confiscated these items
and took photographs thereof. Appellant was then brought to the headquarters where he was
booked. 6
Callo, who was the chief intelligence officer of Tigaon PNP, recounted that at around 1:00 p.m. on 7
June 1994, he was called by Competente and was briefed about the operation. While they were in
Nasulan, the members of the police team caught a man riding a bicycle who turned out to be
appellant. Callo saw the marijuana wrapped in a cellophane and newspaper in the bicycle of
appellant so the latter was brought to the police headquarters and turned over to the desk officer. 7
Major Lorlie Arroyo (Arroyo), a forensic chemist at the PNP Crime Laboratory Regional Office No. V,
was presented as an expert witness to identify the subject marijuana leaves. She related that after
taking a representative sample from the 928-gram confiscated dried leaves, the same was tested
positive of marijuana. The findings were reflected in Chemistry Report No. D-26-94 dated 9 June
1994.8
Appellant denied the accusations against him. Appellant, who is a resident of Huyon-huyon, Tigaon,
Camarines Sur, testified that in the morning of 7 June 1994, he first went to the house of Igmidio
Miranda (Miranda) in Sagnay, Camarines Sur. The latter accompanied appellant to the house of
Arnel Dadis in San Francisco, Tigaon to buy a dog. They, however, failed to get the dog; prompting
them to leave. On their way home, they met Boyet Obias (Obias) who requested appellant to bring a
package wrapped in a newspaper to Jimmy Gonzales (Gonzales).9 Appellant placed it in the basket
in front of his bicycle and Gonzales proceeded to the Tiagon town proper. He and Miranda parted
ways when they reached the place. Appellant dropped by the grocery store and the blacksmith to get
his scythe. On his way home, he was flagged down by the police and was invited to go with them to
the headquarters. Upon inspection of the package in his bicycle, the police discovered the subject
marijuana. Appellant tried to explain that the package was owned by Obias but the police did not
believe him. He was sent to jail.10
Miranda corroborated the testimony of appellant that the two of them went to San Francisco, Tigaon,
Camarines Sur in the morning of 7 June 1994 to buy a dog. On their way back to the town proper of
Tigaon, they met Obias who requested appellant to bring a package, which Miranda thought
contained cookies, to Gonzales. Upon reaching the town proper, they parted ways. 11

On 26 October 1998, the trial court rendered judgment finding appellant guilty beyond reasonable
doubt of transporting a prohibited drug, a violation of Section 4, Article II of Republic Act (R.A.) No.
6425, otherwise known as The Dangerous Drugs Act of 1972, as amended by R.A. No. 7659. The
dispositive portion of the decision reads:
WHEREFORE, the accused Salvador Peaflorida[,Jr.] is hereby sentenced to suffer the
penalty of imprisonment of reclusion perpetua and to pay a fine of One Million
(P1,000,000.00) Pesos, with subsidiary imprisonment in accordance with law, in case of
insolvency for the fine and for him to pay the costs.
The accused Salvador Peaflorida[,Jr.] shall be entitled to full credit of his preventive
imprisonment if he agreed to abide with the rules imposed upon convicted person, otherwise,
he shall be entitled to four-fifth (4/5) credit thereof.
The subject marijuana consisting of 928 grams, possession thereof being mala prohibita, the
court hereby orders its confiscation in favor of the Government to be destroyed in
accordance with law.
This court, however, hereby recommends to His Excellency, the President of the Philippines,
through the Honorable Secretary of Justice to commute the above penalty herein imposed,
being too harsh; accordingly, the said penalty imposed to accused Salvador Peaflorida[,Jr]
shall be six (6) years of prision correccional, as minimum, to eight (8) years and one (1) day
of prision mayor, as maximum.
SO ORDERED.12
In convicting appellant, the trial court lent credence to the testimonies of the police officers, thus:
Now going over the evidence adduced, the court is convinced that the accused Salvador
Peaflorida[,Jr.] committed the offense of illegal possession of 928 grams of marijuana, if
not, of transporting it, as charged. This is so, because it appears undisputed that on June 7,
1994, at about 1:00 o'clock in the afternoon police officers Vicente Competente and his four
(4) other co-police officers apprehended the accused Salvador Peaflorida[,Jr.] on the
roadside at Nasulan, Huyon-huyon, Tigaon, Camarines Sur [,] then riding on his bicycle and
placed on the still structure at its front, a thing wrapped in a newspaper and found to be 928
grams of marijuana. No ill-motive has been presented by the defense against the police
officers Vicente Competente and companions by falsely testifying against the accused
Salvador Peaflorida, Jr. So, the conclusion is inevitable that the presumption that the police
officers were in the regular performance of their duties apply. The confiscation of the
marijuana subject of the instant case and the arrest of the accused Salvador Peaflorida[,Jr.]
by the said police officers being lawful, having been caught in flagrante delicto, there is no
need for the warrant for the seizure of the fruit of the crime, the same being incidental to the
lawful arrest. Rightly so, because a person caught illegally possessing or transporting drugs
is subject to the warrantless search. Besides, object in the "plain view" of an officer who has
the right to be in the position to have that view are subject to seizure and may be presented
as evidence.13

In view of the penalty imposed, the case was directly appealed to this Court on automatic review.
Pursuant to our decision in People v. Mateo,14 however, this case was referred to the Court of
Appeals. The appellate court affirmed appellant's conviction on 31 July 2006.
In a Resolution15 dated 14 February 2007, the parties were given to file their supplemental briefs, if
they so desire. Both parties manifested their intention not to file any supplemental brief since all the
issues and arguments have already been raised in their respective briefs. 16
Hence, the instant case is now before this Court on automatic review.
In assailing his conviction, appellant submits that there is doubt that he had freely and consciously
possessed marijuana. First, he claims that the alleged asset did not name the person who would
transport the marijuana to Huyon-huyon. In view of the "vague" information supplied by the asset,
the latter should have been presented in court. Second, upon receipt of the information from the
asset, the police officers should have first investigated and tried to obtain a warrant of arrest against
appellant, instead of arbitrarily arresting him. Third, appellant maintains that he is not aware of the
contents of the package. Fourth, upon arrival at the headquarters, the police did not determine the
contents and weight of the package. Fifth, appellant argues that the findings of the forensic expert
are questionable because there is doubt as to the identity of the package examined. 17
Prefatorily, factual findings of the trial courts, including their assessment of the witness' credibility are
entitled to great weight and respect by this Court, particularly when the Court of Appeals affirm the
findings.18 Indeed, the trial court is in the best position to assess the credibility of witnesses since it
has observed firsthand their demeanor, conduct and attitude under grilling examination. 19 After a
review of the records of this case, we find no cogent reason to disregard this time-honored principle.
We shall retrace the series of events leading to the arrest of appellant and resolve the issues raised
by him.
Acting on an asset's tip, a police team was organized to apprehend appellant who was allegedly
about to transport the subject marijuana. Appellant is wrong in concluding that the asset did not
name appellant. As early as 16 November 1996, appellant through counsel had already conceded in
his Memorandum20 filed with the trial court that based on the tip, he was about to transport the
contraband. It further cited excerpts from the result of the preliminary investigation conducted by the
judge on Competente, and we quote:
Q: Did your [a]sset tell you the place and the person or persons involved?
A: Yes[,]sir.
Q: Where and who?
A: He said that marijuana is being transported from Tigaon town to Bgy. Huyon-huyon by
Salvador Peaflorida, Jr.21

Moreover, on cross-examination, the defense counsel even assumed that according to the asset's tip
it was appellant who was assigned to deliver the contraband. And the witness under crossexamination affirmed it was indeed appellant who would be making the delivery according to the tip:
Q: Will you inform this Honorable Court who has given you the tip that the accused was
going to deliver that marijuana[?] [W]ho is [this] person?
A: It was a confidential tip.
Q: Now, but [sic] on June 1 you were in your office?
A: Yes[,] sir[.] I was in the office.
Q: Since your office is just near the Municipal Trial Court of Tigaon and you were given a tip
that Salvador Peaflorida[,Jr.] will be delivering marijuana, why did you not get a
[w]arrant of [a]rrest?
xxx
Q: The tip that was given to you that it was Salvador Peaflorida [who] will be dealing
marijuana on that date and according to you Salvador was to travel from a certain town
to Tigaon, is that the tip?
A: Yes[,] sir[.] That he would deliver marijuana.
Q: So, at the time that you form[ed] a team, Salvador was nowhere to be seen, you have not
seen the shadow of Salvador?
A: When the tip was given to us[,] I have not seen him[.] [B]ut the tip is he will deliver from
Tigaon to Huyon-huyon, that is why we chased him.22 [Emphasis supplied]
Prescinding from the above argument, appellant insists that the asset should have been presented
in court. He invoked the court ruling in People v. Libag,23 wherein the non-presentation of the
informant was fatal to the case of the prosecution. Libag cannot find application in this case. In that
case, the crime charged was the sale ofshabu where the informant himself was a poseur-buyer and
a witness to the transaction. His testimony as a poseur-buyer was indispensable because it could
have helped the trial court in determining whether or not the appellant had knowledge that the bag
contained marijuana, such knowledge being an essential ingredient of the offense for which he was
convicted.24 In this case, however, the asset was not present in the police operation. The rule is that
the presentation of an informant in an illegal drugs case is not essential for conviction nor is it
indispensable for a successful prosecution because his testimony would merely be corroborative
and cumulative. Informants are generally not presented in court because of the need to hide their
identity and preserve their invaluable service to the police. 25
Competente testified that his team caught up with appellant who was riding a bicycle. He saw the
marijuana in a package which appellant was carrying inside his basket, thus:

Q: And so as the team leader x x x and in connection with the instruction of Chief Domingo
Agravante, what did you do?
A: We used the mobile and proceeded to the place, to the route where the marijuana was
being transported.
Q: When you said we to whom are you referring to?
A: The team.
Q: Were you able to go to the place as you said?
A: Yes, sir.
Q: So, upon reaching the place, [sic] what place was that?
A: Sitio Nasulan, Barangay Huyon-huyon, Tigaon, Camarines Sur.
Q: And upon reaching the place together with the other member of the team, what did you
find if you found any?
A: We overtook our suspect while riding in a bicycle and we stopped him.
Q: And did the suspect stop?
A: Yes[,] sir.
Q: Tell us the name of your suspect?
A: Salvador Peaflorida[,] Jr. y Clidoro.
Q: And after stopping the accused in this case, what else did you do[,] if any[,] together with
the team?
A: When we saw the marijuana and other groceries in his bicycle we invited him to the
headquarters.26
Callo also confirmed that he saw appellant transporting and in possession of the subject marijuana:
Q: When you reached there[,] what happened next?
A: We have not reached yet [sic] the Huyon-huyon proper. [W]e are in Nasulan when we met
the man who had with him the marijuana.
xxx

Q: After you talked with the person with marijuana[,] what happened next?
A: We saw on his bicycle a wrap[ped] marijuana.
Q: Who was in possession of that?
A: Salvador Peaflorida[,] Jr.
Q: How is that person related to the accused in this case now?
A: He is the one, sir.
Q: Kindly describe to us the marijuana that you are able to tell that it was marijuana?
A: It was wrapped on [cellophane] and newspaper. We saw the edges of the marijuana.
Q: For the [record], kindly describe to us the edges of the marijuana[;] its appearance and
color.
A: It was like a shape of ream of coupon bond and the color is green. 27
These positive and categorical declarations of two police officers deserve weight and credence in
light of the presumption of regularity accorded to them and the lack of motive on their part to falsely
testify against appellant.
Appellant resorts to a challenge on the validity of his arrest predicated on lack of a warrant of arrest.
The OSG correctly justifies the failure to apply for an arrest warrant because at that point, time was
of the essence in appellant's apprehension, noting in the same breath that there is no law requiring
investigation and surveillance upon receipt of tips from assets before conducting police
operations.28 The police officers succinctly testified on this point when cross-examined, viz:
Q: Will you inform this Honorable Court who has given you the tip that the accused was
going to deliver that marijuana, who is that person?
A: It was a confidential tip.
Q: Now, but [sic] on June 1 you were in your office?
A: Yes[,] sir[.] I was in the office.
Q: Since your office is just near the Municipal Trial Court of Tigaon and you were given a tip
that Salvador Peaflorida[,Jr.] will be delivering marijuana, why did you not get a [w]arrant of
[a]rrest from the court?
A: There was no time to apply for a search warrant because just after the information was
received, we proceeded.

xxx
Q: If that is true, Mr. Competente that you were given a tip, the most that you will do is first
see the Judge of Tigaon in as much as you have not seen yet [sic] the said person carrying
marijuana?
A: There was no time for us to apply, because the marijuana is being delivered so we have
no more time to see the Judge.
xxx
Q: Are you aware of the law that illegally confiscated marijuana cannot be used in court?
FISCAL SOLANO: Conclusion of law.
A: Yes, sir[.] [I]f it is illegally confiscated it cannot be used in court.
ATTY. CLEDERA: Despite that prohibition under the rules[,] you insisted in apprehending
Salvador Peaflorida[,Jr.] without warrant of arrest inspite of the fact that you know that
restriction?
A: Our apprehension was in plain view.
Q: How can you see that it was in open view when according to you the house of Salvador is
120 meters[?] [H]ow can you see that distance?
A: I could see that because the marijuana was carried in his bicycle, we have seen it.
Q: In what street?
A: Huyon-huyon[,] Sitio Nasulan, Tigaon, Camarines Sur.
Q: About what time did you see him?
A: 1:00 o'clock sir.
x x x29
The police was tipped off at around 1:00 p.m. that appellant was transporting marijuana to Huyonhuyon. Certainly, they had no time to secure an arrest warrant as appellant was already in transit
and already committing a crime. The arrest was effected after appellant was caught in flagrante
delicto. He was seen riding his bicycle and carrying with him the contraband, hence, demonstrating
that a crime was then already being committed. Under the circumstances, the police had probable
cause to believe that appellant was committing a crime. Thus, the warrantless arrest is justified.
Article II, Section 4 of R.A. No. 6425, as amended by R.A. No. 7659, states:

SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.

The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who, unless authorized by law,
shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport
any prohibited drug, or shall act as broker in any of such transactions. x x x.
Jurisprudence defines "transport" as "to carry or convey from one place to another." 30 In the instant
case, appellant was riding his bicycle when he was caught by the police. He admitted that he was
about to convey the package, which contained marijuana, to a certain Jimmy Gonzales.
Appellant, however, denies any knowledge that the package in his possession contained marijuana.
But the trial court rejected his contention, noting that it was impossible for appellant not to be aware
of the contents of the package because "marijuana has a distinct sweet and unmistakable aroma x x
x which would have alarmed him."31
Taking one step further, the appellate court went on to declare that being mala prohibita, one
commits the crime under R.A. No. 6425 by mere possession of a prohibited drug without legal
authority. Intent, motive or knowledge thereof is not necessary.32
Appellant, in the main, asserts that he did not freely and consciously possess marijuana. 33 In criminal
cases involving prohibited drugs, there can be no conviction unless the prosecution shows that the
accused knowingly possessed the prohibited articles in his person, or that animus possidendi is
shown to be present together with his possession or control of such article. Animus possidendi is
only prima facie. It is subject to contrary proof and may be rebutted by evidence that the accused did
not in fact exercise power and control over the thing in question, and did not intend to do so. The
burden of evidence is thus shifted to the possessor to explain absence of animus possidendi.34
Knowledge refers to a mental state of awareness of a fact. Since courts cannot penetrate the mind
of an accused and thereafter state its perceptions with certainty, resort to other evidence is
necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by
taking into consideration the prior or contemporaneous acts of the accused, as well as the
surrounding circumstances. Its existence may and usually must be inferred from the attendant
events in each particular case.35
Appellant failed to satisfactorily establish his lack of knowledge of possession in the instant case.
First, the marijuana was found in the bicycle he himself was driving. Second, the police officers first
readily saw in plain view the edges of the marijuana leaves jutting out of the package. Third, it is
incredulous that appellant did not ask Obias what the package contained when the latter requested
him to do the delivery errand since the package was wrapped in a newspaper and weighed almost
one kilogram. The same observation was reached by the trial court:
Finally, it is very hard for the court to accept the claim of the accused Salvador
Peaflorida[,Jr.] that he does not know that the thing wrapped in a newspaper which Boyet
Obias, now dead, requested the accused Peaflorida[,Jr.] would deliver to a certain Jimmy
Gonzales whose present whereabouts is not known, was a marijuana. Its odor is different
especially from tobacco. This was observed by the court during the trial of the case,

everytime the wrapper containing the subject marijuana with a volume of 928 grams is
brought to court its odor is noticeable. For the accused Peaflorida[,Jr.], not to notice it is
hard to believe. Rightly so, because marijuana has a distinct sweet and unmistakable aroma
very different from (and not nauseating) unlike tobacco. This aroma would have alarmed
him.36
Furthermore, it appeared from the cross-examination of appellant that Obias was an acquaintance.
In the ordinary course of things, one is expected to inquire about the contents of a wrapped package
especially when it is a mere acquaintance who requests the delivery and, more so, when delivery is
to a place some distance away.
Anent appellant's claim that the package examined by Arroyo was not the one confiscated from him,
the appellate court had this to say:
SPO3 Competente testified that marijuana was confiscated from appellant. The pictures of
appellant, together with the items seized from him, depict a package containing dry leaves
suspected to be marijuana. On the other hand, Forensic Chemist Arroyo testified that the
specimen she examined was delivered to her by Major Agravante on June 9, 1994 or two
days after the apprehension. From these series of events, it can be inferred that the package
confiscated from appellant and the specimen delivered to Forensic Chemist Arroyo for
laboratory examination were one and the same.37
Despite intense grilling from the defense counsel, Arroyo never faltered and was in fact consistent in
declaring that she received the specimen from Agravante on 9 June 1994 and immediately
conducted the laboratory test.
Finally, the lower courts correctly sentenced appellant to suffer the penalty of reclusion perpetua and
to pay a fine of one million pesos by virtue of the amendment to Section 4, R.A. No. 6425 by R.A.
No. 7659.38
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of San Jose,
Camarines Sur, Branch 30 in Criminal Case No. T-1476, finding appellant Salvador Peaflorida y
Clidoro guilty beyond reasonable doubt of violation of Section 4, Article II of R.A. No. 6425
(Dangerous Drugs Act) as amended, and sentencing him to suffer the penalty of reclusion
perpetua and to pay a fine of One Million Pesos (P1,000,000.00), is AFFIRMED in toto.
SO ORDERED.

PEOPLE OF THEPHILIPPINES,
Plaintiff-Appellee,

G.R. No. 185848

Present:
CORONA, C.J.,
Chairperson,
VELASCO, JR.,

- versus -

LEONARDO-DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.
Promulgated:

MICHAEL
SEMBRANO
y
CASTRO,
August 16, 2010
Accused-Appellant.
x---------------------------------------------------x
DECISION
PEREZ, J.
Accused-appellant MICHAEL SEMBRANO y CASTRO (appellant) is before this
Court appealing from the 18 June 2008 Decision[1] of the Court of Appeals in CA-G.R.
HC No. 02762 captioned People of the Philippines v. Michael Sembrano y Castro. The
Court of Appeals affirmed his conviction[2] by the Regional Trial Court of Quezon City
(RTC, QC) for the crimes of illegal sale and illegal possession of shabu, a dangerous
drug, in violation of Sections 5 and 11, Article II, of Republic Act No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002.[3]
The antecedent facts
On 26 July 2004, the operatives of the Station Anti-Illegal Drugs (SAID) of the
Novaliches Police Station arrested appellant in broad daylight, in the course of a buy-bust
operation and after a follow-up search on him.
On 28 July 2004, the Assistant City Prosecutor of Quezon City in the National
Capital Region (QC-NCR) filed two separate Informations against him for (1) illegal sale
and (2) illegal possession of shabu, a dangerous drug. The two cases were raffled to
Branch 82 of the RTC, QC and docketed as Criminal Cases Nos. Q-04-128370 and Q-04128371, imputing the following acts against him:

Criminal Case No. Q-04-128370

That on or about the 26th day of July 2004, in Quezon City, Philippines, the said
accused, not being authorized by law to sell, dispense, deliver transport or
distribute any dangerous drug, did, then and there, willfully and unlawfully sell,
dispense, deliver, transport, distribute or act as broker in the said transaction,
zero point twelve (0.12) gram of white crystalline substance containing
ofMethylamphetamine Hydrochloride, a dangerous drug.[4]
Criminal Case No. Q-04-128371
That on or about the 26th day of July 2004, in Quezon City, Philippines, the said
accused, not being authorized by law to possess any dangerous drug, did, then
and there, willfully, unlawfully and knowingly have in his/her/their possession
and control, zero point twenty seven (0.27) gram of white crystalline substance
containing Methylamphetamine Hydrochloride, a dangerous drug.[5]

Sembrano was arraigned on 19 April 2005 and with the assistance of counsel, pleaded not
guilty to the charges.[6] Pre-trial proceedings having been terminated, trial on the merits
ensued.
During trial, the prosecution presented the testimonies of the following witnesses: (1)
Police Officer 1 (PO1) Jomar Manaol; and (2) Police Officer 1 (PO1) Kingly James
Bagay.
The combined testimonies of PO1 Manaol and PO1 Bagay sought to establish that at
around 3:00 oclock in the afternoon of 26 July 2004, an informant of the police arrived at
the SAID of the Novaliches Police Station. The confidential informant relayed
information regarding illicit drugs trade operations conducted by a certain Michael
Sembrano alias Takol in the area of Gulod in Novaliches, Quezon City.
Superintendent (Supt.) Ramon Perez, head of SAID, formed a buy-bust team composed
of PO1 Jomar Manaol, SPO1 Cesar Futol, PO1 Kingly James Bagay, PO1 Neil John
Dumlao, and PO1 Fernando Salonga. SPO1 Futol prepared the pre-operation report for
the team. The group then proceeded to Ignacio Street corner Villareal Street in Gulod,
Novaliches, Quezon City for the entrapment operation.

The group arrived at the designated area at around 3:30 oclock in the afternoon. PO1
Manaol was designated poseur-buyer. He was handed two (2) One Hundred Peso bills
which he marked with his initials JAM on the lower right side thereof, right below the
image of the Philippine Flag. PO1 Manaol, together with the confidential informant, then
proceeded to the target site. The other members of the team, including witness PO1
Bagay, acted as back-up and positioned themselves about twenty-five meters away from
where PO1 Manaol and the confidential informant were.
They waited until appellant arrived at around 5:00 oclock in the afternoon. Upon
appellants arrival, the confidential informant introduced PO1 Manaol to him as an
interested buyer of shabu. PO1 Manaol handed the two marked One Hundred Peso bills
to appellant, who, in turn, handed one (1) plastic sachet containing white crystalline
substance to him. The transaction having been consummated, PO1 Manaol executed their
pre-arranged signal and scratched his head. When the other members of the team saw
PO1 Manaol execute the pre-arranged signal, they immediately proceeded to their
location and arrested appellant.
PO1 Manaol recovered the suspected shabu subject of the sale from appellant and placed
his initials JAM thereon. PO1 Bagay was also able to retrieve the buy-bust money from
appellants right hand. A follow-up frisk on appellant resulted in the confiscation of two
other plastic sachets of white crystalline substance suspected to be shabu, from the right
hand pocket of his shorts. Immediately after retrieving the evidence, PO1 Bagay marked
the confiscated sachets with his initials KJB.
After his arrest, the police officers took appellant to the police station where he was
turned over to the desk officer and to the on-duty investigator. PO1 Bagay, who had
custody of the confiscated evidence, turned over the seized three (3) plastic sachets of
white crystalline substance to the investigator. PO1 Manaol and PO1 Bagay executed a
Joint Affidavit of Arrest and signed the Inventory of Seized Drugs/Item prepared by
SPO1 Cesar Futol.
The confiscated items were transmitted on the same day by the investigator on-duty,
through PO1 Salonga, PO1 Manaol and PO1 Bagay to the Philippine National Police
(PNP) Crime Laboratory for examination.

A forensic examination of the contents of the seized sachets as conducted by Police

Senior Inspector (P/S Insp.) Leonard T. Arban, Forensic Chemical Officer yielded the
following results in Chemistry Report No. D-698-04:
SPECIMEN SUBMITTED:
Three (3) heat-sealed transparent plastic sachets, each containing white
crystalline substance with the following markings and recorded net weights:
A (JAM - MCS) = 0.12 gram
B (KJB MCS1) = 0.10 gram
C (KJB MCS2) = 0.17 gram
FINDINGS:
Qualitative examination conducted on the above-stated specimens gave
POSITIVE result to the tests for Methylamphetamine Hydrochloride, a
dangerous drug.[7]
Expectedly, the defense had an entirely different version, with Sembrano testifying on the
witness stand. He narrated that at around 1:00 oclock in the afternoon of 26 July 2004; he
was buying lumber somewhere along Quirino Highway in Novaliches,Quezon City, when
a maroon Tamaraw FX stopped in front of him. The occupants thereof, PO1 Bagay and
PO1 Manaol, alighted from the vehicle and arrested him. After being arrested, the police
officers took him to Station 4 whereupon he was required to sign a document. Sembrano
learned later on that the police officers filed a case against him for violation of Republic
Act No. 9165. When asked on the witness stand if he knew the two police officers,
Sembrano answered in the affirmative, having met the two since he had been their police
asset since 23 April 2003. In support of his claim, Sembrano presented a copy of an Oath
of Loyalty and Agents Agreement to prove he was indeed a police asset. On cross
examination, however, he testified that the police officers he mentioned were not
signatories to the Oath of Loyalty and Agents Agreement he presented in court.

The RTC found accused-appellant guilty as charged in Criminal Cases Nos. Q-04-128370
and Q-04-128371. Weighing the body of evidence submitted by both parties, the trial
court gave little credence to appellants unsubstantiated claim that he was a police asset
and ascertained that the prosecution established all the elements of illegal sale and illegal
possession of a dangerous or prohibited drug.
Thus, in its Decision dated 14 February 2007, the trial court rendered judgment disposing
as follows:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

a) Re: Criminal Case No. Q-0-4128370, accused MICHAEL SEMBRANO is
hereby found guilty beyond reasonable doubt a (sic) of a violation of
Section 5, Article II of R.A. No. 9165, and accordingly, he is hereby
sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine
in the amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00)
PESOS;
b) Re: Criminal Case No. Q-04-128371, said accused is likewise found guilty
beyond reasonable doubt of violation of Section 11, Article II of the same
Act and, accordingly, he is hereby sentenced to suffer the indeterminate
penalty of imprisonment of TWELVE (12) YEARS and one (1) DAY as
MINIMUM to FOURTEEN (14) YEARS as MAXIMUM and to pay a fine
in the amount of THREE HUNDRED THOUSAND (P300,000.00) PESOS.
[8]

Seeking recourse from his conviction by the trial court, the appellant elevated the case to
the Court of Appeals via Notice of Appeal. Insisting on his innocence, the defense
questioned the admissibility of the confiscated evidence on the ground of illegality of
appellants arrest. The defense also attacked the credibility of the prosecution witnesses,
claiming their stories are unbelievable and should have led to the dismissal of the
charges.
According credence to the evidence of the prosecution, the Court of Appeals promulgated
its Decision on 18 June 2008, where the appellate court affirmed the findings and
conclusions of the trial court, but reduced the penalty imposed in the illegal possession
case to six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal as maximum.[9]
Appellant is now appealing his conviction to this Court, as a final recourse, praying that
he be absolved of the charges. Instead of filing supplemental briefs, the defense and the
prosecution adopted the arguments in their respective appellate briefs submitted before
the Court of Appeals.
Thus, this Court is tasked to resolve the following assignment of errors:
I.
THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT
APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE

SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM

WERE INADMISSIBLE IN EVIDENCE.
II.

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE

TO THE INCREDIBLE TESTIMONIES OF THE PROSECUTION
WITNESSES.

III.

THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT

GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.

The defense challenges the RTC and Court of Appeals rulings, anchored on its claim that
the warrantless arrest against appellant was unlawful. Consequently, applying the fruit of
the poisonous tree doctrine, any evidence allegedly obtained during such unlawful
warrantless arrest cannot be used as evidence. The defense proffers that the illegal drugs
allegedly seized from appellant during the buy-bust operation should have been declared
inadmissible. Alleging he is a victim of frame-up by the police officers, appellant attacks
the credibility of the prosecution witnesses. In sum, appellant seeks acquittal on the
ground that the prosecution failed to prove his guilt beyond reasonable doubt.
Coming from an entirely different perspective, the Office of the Solicitor General (OSG),
representing the prosecution, disagrees with the aforementioned contentions from the
defense side. It counters that the sachets of shabu were seized from appellant during a
buy-bust operation. Thus, any opposition thereto with respect to its admissibility on the
ground that said sachets were seized during an illegal arrest is unfounded. As for the
testimonies of the prosecution witnesses, the testimony of the poseur-buyer, in particular,
was corroborated by the police operatives on material points.
We find no merit in the appeal.
Conviction is proper in prosecutions involving illegal sale of regulated or
prohibited drugs if the following elements are present: (1) the identity of the buyer and
the seller, the object, and the consideration; and (2) the delivery of the thing sold and the
payment thereto.[10] What is material is proof that the transaction or sale actually took
place, coupled with the presentation in court of the prohibited or regulated drug. [11] We

reiterate the meaning of the term corpus delicti which is the actual commission by
someone of the particular crime charged.[12]
Having weighed the arguments and evidence propounded by the defense and the
prosecution, this Court is satisfied that the prosecution discharged its burden of
establishing all the elements of illegal sale of regulated or prohibited drugs and proved
appellants guilt beyond reasonable doubt.
The collective testimonies of the prosecution witnesses, as well as the documentary
evidence offered in court, provide a detailed picture of the sequence of events leading to
the consummation of the transaction, the very moment PO1 Manaol received the drug
from accused-appellant, the seller. The foregoing is the very corpus delicti of the offense.
Whatever doubt concerning appellants culpability is now beyond question after he
was caught in a buy-bust operation conducted by the operatives of the Novaliches Police
Station in the afternoon of 26 July 2004 along Villareal Street.
Appellant was caught in flagrante delicto delivering 0.12 gram of
methamphetamine hydrochloride or shabu to PO2 Manaol, the poseur-buyer, for a
consideration of P200.00. Upon frisking after his arrest, another 0.27 gram of
methamphetamine hydrochloride were recovered from him. It is clear from the evidence
on record that the sachet of shabusold by appellant was marked by PO2 Manaol with his
initials, while the other two sachets were marked by PO1 Bagay with his initials. PO1
Bagay, who had custody of the seized evidence, brought confiscated three plastic sachets
of white crystalline substance to the police station and turned over to the investigator. At
the police station, an Inventory of Seized Drugs/Item was prepared by SPO1 Cesar Futol
and signed by PO1 Manaol and PO1 Bagay. The investigator on duty, to whom the seized
evidence were encrusted by PO1 Bagay, through PO1 Salonga, PO1 Manaol and PO1
Bagay, turned over the evidence to the PNP-Crime Laboratory for forensic examination
on the same day he received the items. In a Chemistry Report released by P/S Insp.

Leonard T. Arban, the white crystalline substance taken from the three sachets proved
positive for shabu.
PO1 Manaol, the poseur-buyer, positively identified Sembrano as the person who
sold and handed him the sachet containing white crystalline substance, proven to
be shabu.[13]
On the legality of the warrantless arrest, We reiterate that appellant was arrested
during an entrapment operation where he was caught in flagrante
delicto selling shabu. When an arrest is made during an entrapment operation, it is not
required that a warrant be secured in line with the provisions of Rule 113, Section 5(a) of
the Revised Rules of Court allowing warrantlessarrests, to wit:
Section 5. Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
xxx

A buy-bust operation is a form of entrapment which in recent years has been

accepted as a valid and effective mode of apprehending drug pushers. [14] If carried out
with due regard for constitutional and legal safeguards, a buy-bust operation, such as the
one involving appellant, deserves judicial sanction. Consequently, the warrantless arrest
and warrantless search and seizure conducted on the person of appellant were allowed
under the circumstances. The search, incident to his lawful arrest, needed no warrant to
sustain its validity.[15] Thus, there is no doubt that the sachets of shabu recovered during
the legitimate buy-bust operation, are admissible and were properly admitted in evidence
against him.[16]

Appellants defenses of denial and frame-up are both self-serving and

uncorroborated, and must fail in light of straightforward and positive testimony of
poseur-buyer identifying him as the seller of shabu. The twin defenses of denial and
frame-up hold little weight vis--vis the strong evidence gathered by the prosecution in
proving his complicity to the offenses.To recall, PO1 Manaols testimony was
corroborated on material points by PO1 Bagay, who identified appellant as the one who
handed the sachet of shabu to PO1 Manaol after being handed two (2) One Hundred Peso
bills. Contrary to the defenses claim, it is not impossible for a buy-bust operation to be
conducted in broad daylight, as in the case at bar. Frame-up, like denial, is viewed by this
Court with disfavor for it can easily be concocted.[17]
Finally, in cases involving violations of Dangerous Drugs Act, credence should be
given to the narration of the incident by the prosecution witnesses especially when they
are police officers who are presumed to have performed their duties in a regular manner,
unless there is evidence to the contrary.[18] In this regard, the defense failed to show any
ill motive or odious intent on the part of the police operatives to impute such a serious
crime that would put in jeopardy the life and liberty of an innocent person, such as in the
case of appellant. Incidentally, if these were simply trumped-up charges against him, it
remains a question why no administrative charges were brought against the police
operatives. Moreover, in weighing the testimonies of the prosecution witnesses vis-vis those of the defense, it is a well-settled rule that in the absence of palpable error or
grave abuse of discretion on the part of the trial judge, the trial courts evaluation of the
credibility of witnesses will not be disturbed on appeal.[19]
On the merits of allegations of illegal possession of shabu, We find, likewise,
against appellant and sustain the findings of the RTC and Court of Appeals.
For illegal possession of regulated or prohibited drugs, the prosecution must
establish the following elements: (1) the accused is in possession of an item or object,
which is identified to be a prohibited drug; (2) such possession is not authorized by law;
and (3) the accused freely and consciously possessed the drug. [20] All the aforesaid

elements were established.Incident to his lawful arrest resulting from the buy-bust
operation, appellant was likewise found to have in his possession 0.27 gram of
methamphetamine hydrochloride, or shabu, the same kind of dangerous drug he was
caught selling in flagrante delicto. There is nothing on record to show that he had legal
authority to possess the same. Finally, this Court held in a number of cases, as in People
v. Noque, G.R. No. 175319, 15 January 2010, citing People v. Tee, 443 Phil. 521, 551
(2003), mere possession of a regulated drug per se constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused absent a satisfactory
explanation of such possession the onus probandi is shifted to the accused, to explain the
absence of knowledge or animus possidendi.
We now determine the imposable penalties.
The sale of shabu is punishable under Section 5, Article II of Republic Act No.
9165, viz.:
Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person, who, unless authorized by law, shall sell, trade, administer,
dispense, deliver, give away to another, distribute dispatch in transit or transport any
dangerous drug, including any and all species of opium poppy regardless of the quantity
and purity involved, or shall act as a broker in any of such transactions. x x x

Under the provisions of said law, the sale of any dangerous drug, e.g. shabu,
regardless of its quantity and purity, carries with it the penalty of life imprisonment to
death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten
Million Pesos (P10,000,000.00).[21] With the effectivity, however, of Republic Act No.
9346, otherwise known as An Act Prohibiting the Imposition of Death Penalty in
the Philippines, the imposition of the supreme penalty of death has been proscribed. In
this regard, the penalty applicable to Sembrano shall only be life imprisonment and fine
without eligibility for parole. This Court thus sustains the penalty imposed by the RTC
and later on affirmed by the Court of Appeals in Criminal Case No. Q-04-128370.

On the other hand, illegal possession of dangerous drugs is penalized under Section
11, Article II of Republic Act No. 9165, to wit:
Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death
and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall
possess any dangerous drug in the following quantities, regardless of the degree of purity
thereof:
x x x Otherwise, if the quantity involved is less than the foregoing quantities, the
penalties shall be graduated as follows:
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine
ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand
pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of
opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana
resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as,
but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly
designed or newly introduced drugs and their derivatives, without having any therapeutic
value or if the quantity possessed is far beyond therapeutic requirements; or less than
three hundred (300) grams of marijuana x x x.

The foregoing provision specifically states that illegal possession of less than five
(5) grams of said dangerous drug is penalized with imprisonment of twelve (12) years
and one (1) day to twenty (20) years and a fine ranging from Three Hundred Thousand
Pesos (P300,000.00) to Four Hundred Thousand Pesos (P400,000.00).[22] The evidence
adduced by the prosecution in Criminal Case No. Q-04-128371 established beyond
reasonable doubt that appellant, without any legal authority, had in his possession 0.27
gram of shabu or less than five (5) grams of dangerous drug.
Applying the Indeterminate Sentence Law, the minimum period of the imposable
penalty shall not fall below the minimum period set by the law; the maximum period
shall not exceed the maximum period allowed under the law. Taking the foregoing into
consideration, We find that the Court of Appeals erred in imposing the penalty of Three
Hundred Thousand Pesos (P300,000.00) fine and imprisonment of six (6) years and one
(1) day to eight (8) years only. Thus, the penalty of twelve (12) years and one (1) day to
fourteen (14) years and fine of Three Hundred Thousand Pesos (P300,000.00) imposed
by the RTC is proper.

WHEREFORE, in view of all the foregoing, the 18 June 2008 Decision of the
Court of Appeals in CA-G.R. HC No. 02762, finding appellant MICHAEL
SEMBRANO y CASTRO guilty beyond reasonable doubt of the crimes of illegal sale
and illegal possession of dangerous drugs is AFFIRMED with MODIFICATIONS. As
modified, appellant is sentenced to suffer the indeterminate penalty of imprisonment
ranging from twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as
maximum, and to pay a fine of Three Hundred Thousand Pesos (P300,000.00) in
Criminal Case No. Q-04-128371, for illegal possession of dangerous drugs under Section
11, of Republic Act No. 9165. The penalties imposed in Criminal Case No. Q-04-128370,
for illegal sale of dangerous drugs under Section 15, of Republic Act No. 9165, is
sustained.
SO ORDERED.
SECOND DIVISION
PEOPLE OF THE PHILIPPINES,
Appellee,

G.R. No. 186529

Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

- versus -

Promulgated:
JACK RACHO y RAQUERO,
Appellant.

August 3, 2010

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

DECISION
NACHURA, J.:

On appeal is the Court of Appeals (CA) Decision [1] dated May 22, 2008 in CAG.R. CR-H.C. No. 00425 affirming the Regional Trial Court [2] (RTC) Joint
Decision[3] dated July 8, 2004 finding appellant Jack Racho y Raquero guilty
beyond reasonable doubt of Violation of Section 5, Article II of Republic Act
(R.A.) No. 9165.

The case stemmed from the following facts:

On May 19, 2003, a confidential agent of the police transacted through cellular
phone with appellant for the purchase ofshabu. The agent later reported the
transaction to the police authorities who immediately formed a team composed of
member of the Philippine Drug Enforcement Agency (PDEA), the Intelligence
group of the Philippine Army and the local police force to apprehend the appellant.
[4]
The agent gave the police appellants name, together with his physical
description. He also assured them that appellant would arrive in Baler, Aurora the
following day.
On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed
him that he was on board a Genesis bus and would arrive in Baler, Aurora, anytime
of the day wearing a red and white striped T-shirt. The team members then posted
themselves along the national highway in Baler, Aurora. At around 3:00 p.m. of the
same day, a Genesis bus arrived in Baler. When appellant alighted from the bus,
the confidential agent pointed to him as the person he transacted with earlier.
Having alighted from the bus, appellant stood near the highway and waited for a
tricycle that would bring him to his final destination. As appellant was about to
board a tricycle, the team approached him and invited him to the police station on
suspicion of carrying shabu. Appellant immediately denied the accusation, but as
he pulled out his hands from his pants pocket, a white envelope slipped therefrom
which, when opened, yielded a small sachet containing the suspected drug.[5]
The team then brought appellant to the police station for investigation. The
confiscated specimen was turned over to Police Inspector Rogelio Sarenas De Vera
who marked it with his initials and with appellants name. The field test and

laboratory examinations on the contents of the confiscated sachet yielded positive

results for methamphetamine hydrochloride.[6]
Appellant was charged in two separate Informations, one for violation of Section 5
of R.A. 9165, for transporting or delivering; and the second, of Section 11 of the
same law for possessing, dangerous drugs, the accusatory portions of which read:
That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora
and within the jurisdiction of this Honorable Court, the said accused, did then and
there, unlawfully, feloniously and willfully have in his possession five point zero
one (5.01) [or 4.54] grams of Methamphetamine Hydrochloride commonly known
as Shabu, a regulated drug without any permit or license from the proper
authorities to possess the same.
CONTRARY TO LAW.[7]
That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler,
Aurora, the said accused did then and there, unlawfully, feloniously and willfully
transporting or delivering dangerous drug of 5.01 [or 4.54] grams of shabu
without any permit or license from the proper authorities to transport the same.
CONTRARY TO LAW.[8]

During the arraignment, appellant pleaded Not Guilty to both charges.

At the trial, appellant denied liability and claimed that he went to Baler, Aurora to
visit his brother to inform him about their ailing father. He maintained that the
charges against him were false and that no shabu was taken from him. As to the
circumstances of his arrest, he explained that the police officers, through their van,
blocked the tricycle he was riding in; forced him to alight; brought him to Sea
Breeze Lodge; stripped his clothes and underwear; then brought him to the police
station for investigation.[9]
On July 8, 2004, the RTC rendered a Joint Judgment[10] convicting appellant of
Violation of Section 5, Article II, R.A. 9165 and sentencing him to suffer the
penalty of life imprisonment and to pay a fine of P500,000.00; but acquitted him of
the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, the CA
affirmed the RTC decision.[11]

Hence, the present appeal.

In his brief,[12] appellant attacks the credibility of the witnesses for the
prosecution. He likewise avers that the prosecution failed to establish the identity
of the confiscated drug because of the teams failure to mark the specimen
immediately after seizure. In his supplemental brief, appellant assails, for the first
time, the legality of his arrest and the validity of the subsequent warrantless
search. He questions the admissibility of the confiscated sachet on the ground that
it was the fruit of the poisonous tree.
The appeal is meritorious.
We have repeatedly held that the trial courts evaluation of the credibility of
witnesses and their testimonies is entitled to great respect and will not be disturbed
on appeal. However, this is not a hard and fast rule. We have reviewed such factual
findings when there is a showing that the trial judge overlooked, misunderstood, or
misapplied some fact or circumstance of weight and substance that would have
affected the case.[13]
Appellant focuses his appeal on the validity of his arrest and the search and seizure
of the sachet of shabu and, consequently, the admissibility of the sachet. It is
noteworthy that although the circumstances of his arrest were briefly discussed by
the RTC, the validity of the arrest and search and the admissibility of the evidence
against appellant were not squarely raised by the latter and thus, were not ruled
upon by the trial and appellate courts.
It is well-settled that an appeal in a criminal case opens the whole case for
review. This Court is clothed with ample authority to review matters, even those
not raised on appeal, if we find them necessary in arriving at a just disposition of
the case. Every circumstance in favor of the accused shall be considered. This is in
keeping with the constitutional mandate that every accused shall be presumed
innocent unless his guilt is proven beyond reasonable doubt.[14]
After a thorough review of the records of the case and for reasons that will be
discussed below, we find that appellant can no longer question the validity of his

arrest, but the sachet of shabu seized from him during the warrantless search is
inadmissible in evidence against him.
The records show that appellant never objected to the irregularity of his
arrest before his arraignment. In fact, this is the first time that he raises the issue.
Considering this lapse, coupled with his active participation in the trial of the case,
we must abide with jurisprudence which dictates that appellant, having voluntarily
submitted to the jurisdiction of the trial court, is deemed to have waived his right to
question the validity of his arrest, thus curing whatever defect may have attended
his arrest. The legality of the arrest affects only the jurisdiction of the court over
his person. Appellants warrantless arrest therefore cannot, in itself, be the basis of
his acquittal. [15]
As to the admissibility of the seized drug in evidence, it is necessary for us
to ascertain whether or not the search which yielded the alleged contraband was
lawful.[16]
The 1987 Constitution states that a search and consequent seizure must be
carried out with a judicial warrant; otherwise, it becomes unreasonable and any
evidence obtained therefrom shall be inadmissible for any purpose in any
proceeding.[17] Said proscription, however, admits of exceptions, namely:
1.
2.
3.
4.
5.
6.
7.

Warrantless search incidental to a lawful arrest;

Search of evidence in plain view;
Search of a moving vehicle;
Consented warrantless search;
Customs search;
Stop and Frisk; and
Exigent and emergency circumstances.[18]

What constitutes a reasonable or unreasonable warrantless search or seizure

is purely a judicial question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched, and the character of the articles procured.[19]

The RTC concluded that appellant was caught in flagrante delicto, declaring that he
was caught in the act of actually committing a crime or attempting to commit a
crime in the presence of the apprehending officers as he arrived in Baler, Aurora
bringing with him a sachet of shabu.[20] Consequently, the warrantless search was
considered valid as it was deemed an incident to the lawful arrest.
Recent jurisprudence holds that in searches incident to a lawful arrest, the
arrest must precede the search; generally, the process cannot be reversed.
Nevertheless, a search substantially contemporaneous with an arrest can precede
the arrest if the police have probable cause to make the arrest at the outset of the
search.[21] Thus, given the factual milieu of the case, we have to determine whether
the police officers had probable cause to arrest appellant. Although probable cause
eludes exact and concrete definition, it ordinarily signifies a reasonable ground of
suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which
he is charged.[22]
The determination of the existence or absence of probable cause necessitates
a reexamination of the established facts. On May 19, 2003, a confidential agent of
the police transacted through cellular phone with appellant for the purchase
of shabu. The agent reported the transaction to the police authorities who
immediately formed a team to apprehend the appellant. On May 20, 2003, at 11:00
a.m., appellant called up the agent with the information that he was on board a
Genesis bus and would arrive in Baler, Aurora anytime of the day wearing a red
and white striped T-shirt. The team members posted themselves along the national
highway in Baler, Aurora, and at around 3:00 p.m. of the same day, a Genesis bus
arrived in Baler. When appellant alighted from the bus, the confidential agent
pointed to him as the person he transacted with, and when the latter was about to
board a tricycle, the team approached him and invited him to the police station as
he was suspected of carrying shabu. When he pulled out his hands from his pants
pocket, a white envelope slipped therefrom which, when opened, yielded a small
sachet containing the suspected drug.[23] The team then brought appellant to the
police station for investigation and the confiscated specimen was marked in the
presence of appellant. The field test and laboratory examinations on the contents of
the confiscated sachet yielded positive results for methamphetamine hydrochloride.

Clearly, what prompted the police to apprehend appellant, even without a warrant,
was the tip given by the informant that appellant would arrive in
Baler, Aurora carrying shabu. This circumstance gives rise to another question:
whether that information, by itself, is sufficient probable cause to effect a valid
warrantless arrest.
The long standing rule in this jurisdiction is that reliable information alone is
not sufficient to justify a warrantless arrest. The rule requires, in addition, that the
accused perform some overt act that would indicate that he has committed, is
actually committing, or is attempting to commit an offense. [24] We find no cogent
reason to depart from this well-established doctrine.
The instant case is similar to People v. Aruta,[25] People v. Tudtud,
[26]
and People v. Nuevas.[27]
In People v. Aruta, a police officer was tipped off by his informant that a certain
Aling Rosa would be arriving fromBaguio City the following day with a large
volume of marijuana. Acting on said tip, the police assembled a team and deployed
themselves near the Philippine National Bank (PNB) in Olongapo City. While thus
positioned, a Victory Liner Bus stopped in front of the PNB building where two
females and a man got off. The informant then pointed to the team members the
woman, Aling Rosa, who was then carrying a traveling bag. Thereafter, the team
approached her and introduced themselves. When asked about the contents of her
bag, she handed it to the apprehending officers. Upon inspection, the bag was
found to contain dried marijuana leaves.[28]
The facts in People v. Tudtud show that in July and August, 1999, the Toril Police
Station, Davao City, received a report from a civilian asset that the neighbors of a
certain Noel Tudtud (Tudtud) were complaining that the latter was responsible for
the proliferation of marijuana in the area. Reacting to the report, the Intelligence
Section conducted surveillance. For five days, they gathered information and
learned that Tudtud was involved in illegal drugs. On August 1, 1999, the civilian
asset informed the police that Tudtud had headed to Cotabato and would be back
later that day with a new stock of marijuana. At around 4:00 p.m. that same day, a
team of police officers posted themselves to await Tudtuds arrival. At 8:00 p.m.,
two men disembarked from a bus and helped each other carry a carton. The police

officers approached the suspects and asked if they could see the contents of the box
which yielded marijuana leaves.[29]
In People v. Nuevas, the police officers received information that a certain male
person, more or less 54 in height, 25 to 30 years old, with a tattoo mark on the
upper right hand, and usually wearing a sando and maong pants, would make a
delivery of marijuana leaves. While conducting stationary surveillance and
monitoring of illegal drug trafficking, they saw the accused who fit the description,
carrying a plastic bag. The police accosted the accused and informed him that they
were police officers. Upon inspection of the plastic bag carried by the accused, the
bag contained marijuana dried leaves and bricks wrapped in a blue cloth. In his bid
to escape charges, the accused disclosed where two other male persons would
make a delivery of marijuana leaves. Upon seeing the two male persons, later
identified as Reynaldo Din and Fernando Inocencio, the police approached them,
introduced themselves as police officers, then inspected the bag they were
carrying. Upon inspection, the contents of the bag turned out to be marijuana
leaves.[30]
In all of these cases, we refused to validate the warrantless search precisely
because there was no adequate probable cause. We required the showing of some
overt act indicative of the criminal design.
As in the above cases, appellant herein was not committing a crime in the presence
of the police officers. Neither did the arresting officers have personal knowledge of
facts indicating that the person to be arrested had committed, was committing, or
about to commit an offense. At the time of the arrest, appellant had just alighted
from the Gemini bus and was waiting for a tricycle. Appellant was not acting in
any suspicious manner that would engender a reasonable ground for the police
officers to suspect and conclude that he was committing or intending to commit a
crime. Were it not for the information given by the informant, appellant would not
have been apprehended and no search would have been made, and consequently,
the sachet of shabu would not have been confiscated.
We are not unaware of another set of jurisprudence that deems reliable information
sufficient to justify a search incident to a lawful warrantless
arrest. As cited in People v. Tudtud, these include People v.

Maspil, Jr.,[31] People v. Bagista,[32] People v. Balingan,[33] People v. Lising,

[34]
People v. Montilla,[35] People v. Valdez,[36] and People v. Gonzales.[37] In these
cases, the Court sustained the validity of the warrantless searches notwithstanding
the absence of overt acts or suspicious circumstances that would indicate that the
accused had committed, was actually committing, or attempting to commit a crime.
But as aptly observed by the Court, except inValdez and Gonzales, they were
covered by the other exceptions to the rule against warrantless searches.[38]
Neither were the arresting officers impelled by any urgency that would allow them
to do away with the requisite warrant. As testified to by Police Officer 1 Aurelio
Iniwan, a member of the arresting team, their office received the tipped
information on May 19, 2003. They likewise learned from the informant not only
the appellants physical description but also his name. Although it was not certain
that appellant would arrive on the same day (May 19), there was an assurance that
he would be there the following day (May 20). Clearly, the police had ample
opportunity to apply for a warrant.[39]
Obviously, this is an instance of seizure of the fruit of the poisonous tree, hence,
the confiscated item is inadmissible in evidence consonant with Article III, Section
3(2) of the 1987 Constitution, any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any proceeding.
Without the confiscated shabu, appellants conviction cannot be sustained based on
the remaining evidence. Thus, an acquittal is warranted, despite the waiver of
appellant of his right to question the illegality of his arrest by entering a plea and
his active participation in the trial of the case. As earlier mentioned, the legality of
an arrest affects only the jurisdiction of the court over the person of the accused. A
waiver of an illegal, warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest.[40]
One final note. As clearly stated in People v. Nuevas,[41]
x x x In the final analysis, we in the administration of justice would have
no right to expect ordinary people to be law-abiding if we do not insist
on the full protection of their rights. Some lawmen, prosecutors and
judges may still tend to gloss over an illegal search and seizure as long
as the law enforcers show the alleged evidence of the crime regardless of

the methods by which they were obtained. This kind of attitude condones
law-breaking in the name of law enforcement. Ironically, it only fosters
the more rapid breakdown of our system of justice, and the eventual
denigration of society. While this Court appreciates and encourages the
efforts of law enforcers to uphold the law and to preserve the peace and
security of society, we nevertheless admonish them to act with deliberate
care and within the parameters set by the Constitution and the law. Truly,
the end never justifies the means.[42]

WHEREFORE, premises considered, the Court of Appeals Decision dated

May 22, 2008 in CA-G.R. CR-H.C. No. 00425 is REVERSED and SET
ASIDE. Appellant Jack Raquero Racho is ACQUITTED for insufficiency of
evidence.

EN BANC
PEOPLE OF THE PHILIPPINES,
Appellee,

G.R. No. 167670

Present:

- versus -

RODOLFO BIYOC y WENCESLAO,

Appellant.

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.
Promulgated:
September 7, 2007

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

DECISION
CARPIO MORALES, J.:
The February 28, 2005 Decision of the Court of Appeals[1] which affirmed that of
the Regional Trial Court, Branch 76 of San Mateo, Rizal [2] convicting appellant
Rodolfo Biyoc y Wenceslao for qualified rape is on final review before this Court.
The accusatory portion of the Information charging appellant with qualified rape
reads:
That on or about the 5th day of December, 2000, in the
Municipality of San Mateo, Province of Rizal, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, having
moral ascendancy over the complainant, [AAA], [3] the latter being
his daughter by means of force, coercion and intimidation, with lewd
design and with intent to cause, gratify his sexual desire or abuse and
maltreat complainant [AAA], a minor, 11 years old, did then and there
willfully, unlawfully and feloniously have sexual intercourse with said
complainant against her will and without her consent which debases,
degrades or demeans the intrinsic worth and dignity of said child as a
human being.
Contrary to law.[4] (Underscoring supplied)

From the evidence for the prosecution, the following version is culled:
At four in the afternoon of December 5, 2000, private complainant AAA was in a
room on the second floor of the family house at Nawasa Pipeline, Guitnagbayan
I, San Mateo, Rizal taking care of her one-year-old sister. Her father, herein
appellant, entered the room and touched her genitals, after which he told her to lie
down on the floor.
Overcome by fear, AAA did lie down on the floor as told. Appellant at once
pulled her short pants down and touched her genitals again, after which he went on
top of her and tried to insert his penis into her vagina. Appellant was not able to
fully penetrate AAAs vagina, however, as her elder sister BBB went up the second
floor and saw appellant sitting in front of AAA who was lying down, face

up. Appellant immediately warned BBB not to tell their mother about what she just
saw.[5] After BBB left, appellant inserted his penis inside AAAs vagina.
BBB lost no time to report that same day to her mother CCC, live-in partner
of appellant, what she saw.[6] CCC thus immediately confronted AAA who did
confirm that appellant had inserted his penis inside her vagina that afternoon, and
that appellant had been doing the same act to her since she was nine years
old. Incensed, CCC accompanied AAA the following day, December 6, 2000, to
the Department of Social Welfare and Development (DSWD) to report the
incident.[7]
From the DSWD, AAA and her mother, accompanied by a social worker,
proceeded to the police station of San Mateo, Rizal where they lodged a complaint
against appellant. At the police station, AAA and CCC were interviewed by PO1
Florescita S. Javier.
PO1 Javier, together with AAA and CCC thereafter proceeded to the family
home, and on their way, they met appellant. PO1 Javier at once informed him of
his rights, arrested him, and brought him to the police station. [8] AAAs and CCCs
statements were thereupon taken.[9]
On the same day, December 6, 2000, AAA was examined by Dr. Winston Tan, a
medico-legal officer at Camp Crame,Quezon City. The examination revealed the
following findings:
FINDINGS:
GENERAL AND EXTRAGENITAL:
PHYSICAL BUILT: Light built
MENTAL STATUS: Coherent female child
BREAST: Undeveloped
ABDOMEN: Flat and soft
PHYSICAL INJURIES: No external signs of application of any
form of trauma
GENITAL:
PUBLIC HAIR: Lanugo-type growth
LABIA MAJORA: Full, convex and coaptated
LABIA MINORA: Pinkish brown
HYMEN: Presence of deep healed laceration at

7 oclock position
POSTERIOIR FOURCHETTE: Sharp
EXTERNAL VAGINAL ORIFICE:
VAGINAL CANAL:
CERVIX:
PERIURETHRAL AND VAGINAL SMEARS: NEGATIVE for
spermatozoa and for gram-negative
diplococci.
CONCLUSION: Subject is in non-virgin state physically.
There are no external signs [sic] of application of any form of
physical
trauma.[10] (Emphasis
and
underscoring supplied)

Upon the other hand, appellant gave the following version:

In the afternoon of December 5, 2000, appellant slept on the second floor of
their house with his common-law wife CCC, AAA, and two other younger
children. On waking up at four, CCC and one of the younger children were gone,
leaving AAA and a younger sister whom she was taking care of. At five p.m., BBB
arrived. Appellant and BBB had an altercation over her and her husband being
unemployed and their continued stay in the family house, causing financial
difficulties to the family. BBB had thus a grudge against him on account of which
he surmised that she gave a false report to her mother.
Appellant added that CCC and AAA filed the charge against him because he
was jobless, and constantly inebriated and when in that state, he would quarrel with
CCC and scold his children.
Appellant finally proffered that even if he was aware of the gravity of the
offense lodged against him, he made no attempt to escape which is indicative of his
innocence.[11]
By Decision dated June 18, 2002, the trial court found appellant guilty,
disposing as follows:

WHEREFORE, premises considered, judgment is hereby rendered

finding accused Rodolfo Biyoc y Wenceslao GUILTY BEYOND
REASONABLE DOUBT of the crime of Rape (Violation of par. 1 (d),
Art. 266-A in relation to Art. 266-B 6 th par., (1) of the Revised Penal
Code, as amended by R.A. 8353 and further in relation to Sec. 5 (j) of
R.A. 8369) and sentencing him to suffer the penalty of DEATH, and to
indemnify the private complainant [AAA] in the amount ofP75,000.00
and P50,000.00 as moral damages and to pay the costs.
SO ORDERED.[12] (Underscoring supplied)

In his Brief,[13] appellant raised only one assignment of error THE TRIAL
COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT
FOR THE CRIME OF RAPE,[14] in support of which, he argued that:
1. The trial court disregarded the fact that the prosecution failed to
establish the exact age of the victim and herrelationship to the accused.[15]
2. The trial court did not give weight and credence to the accuseds
testimony thereby depriving him of the presumption of innocence. [16]
3. The trial court did not meet the test of moral certainty required
for the conviction of the accused.[17]
4. The trial court failed to consider the fact that the accuseds arrest
was legally objectionable.[18] (Underscoring supplied)

In his Supplemental Brief which was received by the Court on November

10, 2005, appellant raised additional assignments of error which may be
summarized as follows:
1. The trial court erred in appreciating AAAs testimony that she had long
been sexually molested by appellant, it being hearsay and, in any event, no
criminal charges were filed therefor, and
2. The findings in the medico-legal report did not support the claim of the
prosecution that AAA was raped onDecember 5, 2000.[19]

Appellant contends that the prosecution was unable to prove the age of AAA
in accordance with the guidelines laid down by this Court in People v. Pruna, viz:
In order to remove any confusion that may be engendered by the
foregoing cases, we hereby set the followingguidelines in appreciating
age, either as an element of the crime or as a qualifying circumstance.
1. The best evidence to prove the age of the offended party is an
original or certified true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records which show
the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document
is shown to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victim's mother or a member
of the family either by affinity or consanguinity who is qualified to
testify on matters respecting pedigree such as the exact age or date
of birth of the offended party pursuant to Section 40, Rule 130 of the
Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and what is
sought to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is
sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is
sought to be proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document,
or the testimony of the victim's mother or relatives concerning the
victim's age, the complainant's testimony will suffice provided that it is
expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of
the offended party. The failure of the accused to object to the testimonial
evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to

the age of the victim. [20] (Emphasis and underscoring supplied)

From the accusatory portion of the information quoted above, AAA was
alleged to be 11 years old at the time of the alleged rape. The certificate of live
birth or similar authentic documents were not presented. There is no showing that
the prosecution claimed that the said documents had been lost, destroyed or were
otherwise unavailable, hence, CCCs testifying on AAAs age does not suffice to
prove that AAA was below the age of 12.
Since age was not adequately proven, it cannot be used to qualify the offense
of rape in this case.
As for appellants relationship to AAA, contrary to his claim that it was not
proven, he himself admitted in open court that she is his daughter.
ATTY. GARILLO:
Q.
Mr. Biyoc, where did you reside on December 5, 2000?
A.
At Nawasa Pipeline, sir.
Q.
A.

With whom were you residing in that place?

My family sir.

Q. What is the name of your wife?

A. [CCC], sir.
Q. You have sons and daughters?
A. Yes, sir.
Q. How many are they?
A. Nine (9) sir.
Q What is the name of your eldest?
A. BBB and [DDD] because they are twins, sir.
Q. Who is your second?
A. [EEE], [AAA], [FFF], [GGG], [HHH] and [III], sir.

xxxx
Q. And who were with you at the second floor at the time you
slept at 1:30?
A. My wife and my children, sir.
Q. Who among your children?
A. My two (2) youngest children, [AAA] and my wife, sir.
[21]
(Emphasis supplied)

Admission in open court of relationship has been held to be sufficient and

hence conclusive . . . to prove relationship with the victim.[22]
Respecting appellants claim that his testimony was not credited to thereby
deprive him of the presumption of innocence, the same fails.
Appellants attribution of the filing of the case to his having berated AAAs
sister BBB is too shallow to merit credence. Even assuming that BBB nursed a
grudge against him and that CCC was partly responsible in filing the case, it is
contrary to the caring and protective instincts of a daughter and a wife to subject a
younger sister and daughter, respectively, to the rigors of a trial for rape. But even
if the two have the unimaginable capacity to subject AAA to an ordeal as a trial for
rape, it would be difficult to even imagine how AAA, a child of tender years,
would subject herself to the psychological stress and humiliation of pursuing the
case. More so when the case is against her own father, even if he often scolded her
and her siblings. Thus, in a similar case, this Court held:
No woman would openly admit that she was raped and
consequently subject herself to an examination of her private parts,
undergo the trauma and humiliation of a public trial and embarrass
herself with the need to narrate in detail how she was raped unless she
was in fact raped. This is especially true when the accusing words are
directed against a close relative,especially the father, as in this case. A
young unmarried lass does not ordinarily file a rape complaint against
anybody, much less her own father, if it is not true.
xxxx

Parental punishment is not a good reason for a daughter to falsely

accuse her father of rape. Filipino children's reverence and respect for
elders is too deeply ingrained in Filipino children and families. Thus, it
would take depravity for a young daughter to concoct such a story of
defloration against her own father unless she had really been aggrieved.
Similarly, the imputation by CASTRO of ill-motive on the part of
his wife and mother-in-law does not persuade us. It is unnatural for a
parent, more so for a mother, to use her offspring as an engine of malice
especially if it will subject her child to the humiliation, disgrace and
even stigma attendant to a prosecution for rape, if she were not
motivated solely by the desire to incarcerate the person responsible for
her child's defilement.[23] (Underscoring supplied)

As for appellants argument that the trial court disregarded the fact that no
one actually saw appellant abusing [AAA],[24] the same does not persuade. This
Court has consistently pronounced that the lone testimony of the victim in a
prosecution for rape, if credible, suffices to sustain a verdict of conviction,[25]
. . . the rationale being that owing to the nature of the offense, the only
evidence that can oftentimes be adduced to establish the guilt of the
accused is the offended party's testimony (People v. Lor, L-47440-42,
September 12, 1984, 132 SCRA 41). Hence, if the testimony of the
offended party is not improbable, a defendant may be convicted on the
lone testimony of the victim.[26]

On appellants not fleeing after his indictment, he needs only to be reminded

that
. . . non-flight by itself does not necessarily indicate a clear
conscience. It is true that in a good number of cases, flight of the accused
has been taken as an admission of guilt. However, as held in an equally
good number of cases, the non-flight of the accused per se is not proof,
much less a conclusive one, of the accuseds innocence [27]

Respecting the trial courts crediting of AAAs testimony that she had long
been sexually molested by appellant which testimony appellant alleges is hearsay,

the same is mere obiter dictum. It neither augments nor denigrates the trial courts
finding that appellant raped AAA beyond reasonable doubt on December 5, 2000.
On the alleged inconsistency, attention to which appellant draws, between
AAAs claim that appellant had successfully inserted his penis into her vagina and
another claim that he was only able to slightly insert it due to BBBs arrival,
appellant loses sight of the fact that there were two instances on the same occasion
in which he was alleged to have inserted his penis before and after BBBs arrival.
Q: And you were asked this question, and I will quote: and
panghahalay niya sa iyo kahapon petsa 5 ng Disyembre
humigit kumulang alas 4:00 ng hapon, naipasok ba niyang
muli ang kanyang ari sa iyong ari, and your answer is like
this. Opo, naipasok na po niya ng kaunti ang kanyang ari sa
aking ari, hindi lang po ito naituloy dahil bigla pong dumating
ang aking Ate [BBB] kayat bigla na po siyang tumayo,[] is
that your answer to the question?
A: Yes, sir.
Q: So, you are telling me that your father was not able to insert his
private part into yours because of the arrival of your Ate
[BBB]?
A: Yes, sir.
Q: When your Ate [BBB] arrived, was your father still naked or not?
A: No, more sir.
Q: So, you are telling us that your father had dressed up at the time your
Ate [BBB] arrived?
A: He was not naked because he just put out his penis (hindi po
nakahubad dahil inilabas lang niya ang kanyang ari), sir.

Q: But you were naked?

A: Only my shorts were removed (shorts lang po and nakatanggal sa

akin), sir.
Q: Your shorts was totally taken out of your body?
A: It was lowered up to my knees, sir.
Q: So, it is not true that your father was still on top of your (sic) for
quiet some time because as you claimed, naipasok na po niya
ng kaunti and kanyang ari, hindi lang po ito naituloy dahil
bigla pong dumating ang aking Ate [BBB] kayat bigla napo
siyang tumayo?
A: Pagkatapos lumabas ng Ate [BBB] ko, ipinagpatuloy po niya and
kanyang ginagawa, sir.
Q: You did not mention that fact in your statement, Ms. Witness, and not
in any part of your statement which you narrated to the police
officers?
A: Yes, sir, I did not mention it.
Q: Why?
A: It was not asked of me (hindi po itinanong sa akin), sir.
xxxx
Q: And you claimed that after your Ate [BBB] went down and after your
Ate [BBB] had seen you and your father upstairs, your father still
continued raping you?
A: Yes, sir.
Q: And it took your father quite some time before he was finished raping you?
A: Yes, sir.
x x x x[28] (Emphasis and underscoring supplied)

Thus, by AAAs account, appellant at first naipasok . . . po niya kaunti his

penis inside her vagina hindi lang . . . ito naituloy due to the arrival of BBB, but
that after BBB left, he successfully inserted his penis inside her vagina.

Respecting the alleged inconsistency, attention to which appellant likewise

draws, between AAAs testimony that he was able to successfully insert his penis
inside her vagina to thus cause her pain, and the medico-legal experts
testimony, viz:
Q: Aside from that mere touching, are there any other circumstance or
circumstances wherein you cannot determine contusion, abrasion
and hematoma for that matter?
A: Possible that the act was not consummated.,[29] (Underscoring
supplied)

the same does not dent his guilt.

The Medico-legal officers finding that [t]here is no external signs [sic] of
application of any form of physical trauma (underscoring supplied) and his abovequoted testimony about the possibility that the act was not consummated do not
rule out the commission of rape. For mere penetration of the labia by the penis is
enough to consummate rape.[30]
In another vein, appellant claims that his arrest was illegal because a warrantless
arrest was effected even before the statement of the private complainant was taken.
[31]
Objections to the legality of arrests must, however, be made prior to the entry of
plea at arraignment; otherwise, they are considered waived.[32]
We have also ruled that an accused may be estopped from
assailing the illegality of his arrest if he fails to move for the quashing of
the information against him before his arraignment. And since the
legality of an arrest affects only the jurisdiction of the court over
the person of the accused, any defect in his arrest may be deemed cured
when
he
voluntarily
submitted to the jurisdiction of the trial court as what was done by the
appellants in the instant case. Not only did they enter their pleas during
arraignment, but they also actively participated during the trial which
constitutes a waiver of any irregularity in their arrest. [33] (Emphasis and
underscoring supplied)

In the present case, appellant failed to question the illegality of his arrest before
entering his plea, hence, he is deemed to have waived the same.
In fine, appellant is guilty of Simple Rape, aggravated by relationship.[34]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with
MODIFICATION.
Appellant, Rodolfo Biyoc Wenceslao, is GUILTY beyond reasonable doubt
of Simple Rape under par.1 (a), Art. 266-A in relation to par. 1, Art. 266-B of the
Revised Penal Code and is sentenced to suffer the penalty of reclusion perpetua, to
pay private complainant AAA the amounts of P50,000 in civil indemnity, P50,000
in moral damages andP25,000 in exemplary damages, and to pay the costs.
SO ORDERED.

ARSENIO VERGARA VALDEZ, G.R. No. 170180

Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
November 23, 2007
x------------------------------------------------------------------------------------x

DECISION

TINGA, J.:
The sacred right against an arrest, search or seizure without valid warrant is not
only ancient. It is also zealously safeguarded. The Constitution guarantees the right
of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures.[1] Any evidence obtained in violation of said
right shall be inadmissible for any purpose in any proceeding. Indeed, while the
power to search and seize may at times be necessary to the public welfare, still it
must be exercised and the law implemented without contravening the
constitutional rights of the citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government.[2]
On appeal is the Decision[3] of the Court of Appeals dated 28 July 2005, affirming
the Judgment[4] of the Regional Trial Court (RTC), Branch 31, Agoo, La Union
dated 31 March 2004 finding petitioner Arsenio Vergara Valdez guilty beyond
reasonable doubt of violating Section 11 of Republic Act No. 9165 (R.A. No.
9165)[5] and sentencing him to suffer the penalty of imprisonment ranging from
eight (8) years and one (1) day of prision mayor medium as minimum to fifteen
(15) years of reclusion temporal medium as maximum and ordering him to pay a
fine of P350,000.00.[6]
I.
On 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2) of
R.A. No. 9165 in an Information[7]which reads:
That on or about the 17th day of March 2003, in the Municipality
of Aringay, Province of La Union, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously have in his possession, control and
custody dried marijuana leaves wrapped in a cellophane and newspaper
page, weighing more or less twenty-five (25) grams, without first
securing the necessary permit, license or prescription from the proper
government agency.
CONTRARY TO LAW.[8]

On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued
with the prosecution presenting the three (3) barangay tanods of San Benito Norte,
Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas (Aratas) and
Eduardo Ordoo (Ordoo), who arrested petitioner.
Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was
conducting the routine patrol along theNational Highway in Barangay San Benito
Norte, Aringay, La Union together with Aratas and Ordoo when they noticed
petitioner, lugging a bag, alight from a mini-bus. The tanods observed that
petitioner, who appeared suspicious to them, seemed to be looking for something.
They thus approached him but the latter purportedly attempted to run away. They
chased him, put him under arrest and thereafter brought him to the house
of Barangay Captain Orencio Mercado (Mercado) where he, as averred by
Bautista, was ordered by Mercado to open his bag. Petitioners bag allegedly
contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana
leaves wrapped in newspaper and cellophane. It was then that petitioner was taken
to the police station for further investigation.[9]

Aratas and Ordoo corroborated Bautistas testimony on most material points. On

cross-examination, however, Aratas admitted that he himself brought out the
contents of petitioners bag before petitioner was taken to the house of Mercado.
[10]
Nonetheless, he claimed that at Mercados house, it was petitioner himself who
brought out the contents of his bag upon orders from Mercado. For his part, Ordoo
testified that it was he who was ordered by Mercado to open petitioners bag and
that it was then that they saw the purported contents thereof.[11]
The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the
forensic chemist who conducted the examination of the marijuana allegedly
confiscated from petitioner. Laya maintained that the specimen submitted to him
for analysis, a sachet of the substance weighing 23.10 grams and contained in a
plastic bag, tested positive of marijuana. He disclosed on cross-examination,
however, that he had knowledge neither of how the marijuana was taken from
petitioner nor of how the said substance reached the police officers. Moreover, he

could not identify whose marking was on the inside of the cellophane wrapping the
marijuana leaves.[12]

The charges were denied by petitioner. As the defenses sole witness, he

testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from his
place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner
claimed that he went to the house of a friend to drink water and then proceeded to
walk to his brothers house. As he was walking, prosecution witness Ordoo, a
cousin of his brothers wife, allegedly approached him and asked where he was
going. Petitioner replied that he was going to his brothers house. Ordoo then
purportedly requested to see the contents of his bag and appellant acceded. It was
at this point that Bautista and Aratas joined them. After inspecting all the contents
of his bag, petitioner testified that he was restrained by the tanod and taken to the
house of Mercado. It was Aratas who carried the bag until they reached their
destination.[13]
Petitioner maintained that at Mercados house, his bag was opened by
the tanod and Mercado himself. They took out an item wrapped in newspaper,
which later turned out to be marijuana leaves. Petitioner denied ownership thereof.
He claimed to have been threatened with imprisonment by his arrestors if he did
not give the prohibited drugs to someone from the east in order for them to
apprehend such person. As petitioner declined, he was brought to the police station
and charged with the instant offense. Although petitioner divulged that it was he
who opened and took out the contents of his bag at his friends house, he averred
that it was one of the tanod who did so at Mercados house and that it was only
there that they saw the marijuana for the first time.[14]
Finding that the prosecution had proven petitioners guilt beyond reasonable
doubt, the RTC rendered judgment against him and sentenced him to suffer
indeterminate imprisonment ranging from eight (8) years and one (1) day ofprision
mayor medium as minimum to fifteen (15) years of reclusion temporal medium as
maximum and ordered him to pay a fine of P350,000.00.[15]

Aggrieved, petitioner appealed the decision of the RTC to the Court of Appeals.
On 28 July 2005, the appellate court affirmed the challenged decision. The Court
of Appeals, finding no cogent reason to overturn the presumption of regularity in
favor of the barangay tanod in the absence of evidence of ill-motive on their part,
agreed with the trial court that there was probable cause to arrest petitioner. It
observed further:
That the prosecution failed to establish the chain of custody of the seized
marijuana is of no moment. Such circumstance finds prominence only
when the existence of the seized prohibited drugs is denied. In this case,
accused-appellant himself testified that the marijuana wrapped in a
newspaper was taken from his bag. The corpus delicti of the crime, i.e.[,]
the existence of the marijuana and his possession thereof, was amply
proven by accused-appellant Valdezs own testimony.[16]

In this appeal, petitioner prays for his acquittal and asserts that his guilt of
the crime charged had not been proven beyond reasonable doubt. He argues, albeit
for the first time on appeal, that the warrantless arrest effected against him by
the barangay tanod was unlawful and that the warrantless search of his bag that
followed was likewise contrary to law. Consequently, he maintains, the marijuana
leaves purportedly seized from him are inadmissible in evidence for being the fruit
of a poisonous tree.
Well-settled is the rule that the findings of the trial court on the credibility of
witnesses and their testimonies are accorded great respect and weight, in the
absence of any clear showing that some facts and circumstances of weight or
substance which could have affected the result of the case have been overlooked,
misunderstood or misapplied.[17]
After meticulous examination of the records and evidence on hand, however,
the Court finds and so holds that a reversal of the decision a quo under review is in
order.
II.

At the outset, we observe that nowhere in the records can we find any
objection by petitioner to the irregularity of his arrest before his arraignment.
Considering this and his active participation in the trial of the case, jurisprudence
dictates that petitioner is deemed to have submitted to the jurisdiction of the trial
court, thereby curing any defect in his arrest. The legality of an arrest affects only
the jurisdiction of the court over his person. [18] Petitioners warrantless arrest
therefore cannot, in itself, be the basis of his acquittal.
However, to determine the admissibility of the seized drugs in evidence, it is
indispensable to ascertain whether or not the search which yielded the alleged
contraband was lawful. The search, conducted as it was without a warrant, is
justified only if it were incidental to a lawful arrest. [19] Evaluating the evidence on
record in its totality, as earlier intimated, the reasonable conclusion is that the arrest
of petitioner without a warrant is not lawful as well.
Petitioner maintains, in a nutshell, that after he was approached by
the tanod and asked to show the contents of his bag, he was simply herded without
explanation and taken to the house of the barangay captain. On their way there, it
was Aratas who carried his bag. He denies ownership over the contraband
allegedly found in his bag and asserts that he saw it for the first time at
the barangay captains house.
Even casting aside petitioners version and basing the resolution of this case
on the general thrust of the prosecution evidence, the unlawfulness of petitioners
arrest stands out just the same.
Section 5, Rule 113 of the Rules on Criminal Procedure provides the only
occasions on which a person may be arrested without a warrant, to wit:
Section 5. Arrest without warrant; when lawful.A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of

facts or circumstances that the person to be arrested has

committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
xxx

It is obvious that based on the testimonies of the arresting barangay tanod,

not one of these circumstances was obtaining at the time petitioner was arrested.
By their own admission, petitioner was not committing an offense at the time he
alighted from the bus, nor did he appear to be then committing an offense.
[20]
The tanod did not have probable cause either to justify petitioners warrantless
arrest.
For the exception in Section 5(a), Rule 113 to operate, this Court has ruled
that two (2) elements must be present: (1) the person to be arrested must execute an
overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or
within the view of the arresting officer.[21] Here, petitioners act of looking around
after getting off the bus was but natural as he was finding his way to his
destination. That he purportedly attempted to run away as the tanod approached
him is irrelevant and cannot by itself be construed as adequate to charge
the tanod with personal knowledge that petitioner had just engaged in, was actually
engaging in or was attempting to engage in criminal activity. More importantly,
petitioner testified that he did not run away but in fact spoke with
the barangay tanod when they approached him.
Even taking the prosecutions version generally as the truth, in line with our
assumption from the start, the conclusion will not be any different. It is not
unreasonable to expect that petitioner, walking the street at night, after being
closely observed and then later tailed by three unknown persons, would attempt to
flee at their approach. Flightper se is not synonymous with guilt and must not
always be attributed to ones consciousness of guilt.[22] Of persuasion was the
Michigan Supreme Court when it ruled in People v. Shabaz[23] that [f]light alone is

not a reliable indicator of guilt without other circumstances because flight alone is
inherently ambiguous. Alone, and under the circumstances of this case, petitioners
flight lends itself just as easily to an innocent explanation as it does to a nefarious
one.
Moreover, as we pointed out in People v. Tudtud,[24] [t]he phrase in his
presence therein, connot[es] penal knowledge on the part of the arresting officer.
The right of the accused to be secure against any unreasonable searches on and
seizure of his own body and any deprivation of his liberty being a most basic and
fundamental one, the statute or rule that allows exception to the requirement of a
warrant of arrest is strictly construed. Its application cannot be extended beyond
the cases specifically provided by law.[25]
Indeed, the supposed acts of petitioner, even assuming that they appeared
dubious, cannot be viewed as sufficient to incite suspicion of criminal activity
enough to validate his warrantless arrest.[26] If at all, the search most permissible
for the tanod to conduct under the prevailing backdrop of the case was a stop-andfrisk to allay any suspicion they have been harboring based on petitioners behavior.
However, a stop-and-frisk situation, following Terry v. Ohio,[27] must precede a
warrantless arrest, be limited to the persons outer clothing, and should be grounded
upon a genuine reason, in light of the police officers experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed
about him.[28]

Accordingly, petitioners waiver of his right to question his arrest

notwithstanding, the marijuana leaves allegedly taken during the search cannot be
admitted in evidence against him as they were seized during a warrantless search
which was not lawful.[29] As we pronounced in People v. Bacla-an
A waiver of an illegal warrantless arrest does not also mean a
waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest. The following searches and seizures are deemed
permissible by jurisprudence: (1) search of moving vehicles (2) seizure
in plain view (3) customs searches (4) waiver or consent searches (5)

stop and frisk situations (Terry Search) and (6) search incidental to a
lawful arrest. The last includes a valid warrantless search and seizure
pursuant to an equally valid warrantless arrest, for, while as a rule, an
arrest is considered legitimate if effected with a valid warrant of arrest,
the Rules of Court recognize permissible warrantless arrests, to wit: (1)
arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3)
arrests of escaped prisoners.[30]

When petitioner was arrested without a warrant, he was neither caught

in flagrante delicto committing a crime nor was the arrest effected in hot pursuit.
Verily, it cannot therefore be reasonably argued that the warrantless search
conducted on petitioner was incidental to a lawful arrest.
In its Comment, the Office of the Solicitor General posits that apart from the
warrantless search being incidental to his lawful arrest, petitioner had consented to
the search. We are not convinced. As we explained in Caballes v. Court of
Appeals[31]
Doubtless, the constitutional immunity against unreasonable
searches and seizures is a personal right which may be waived. The
consent must be voluntary in order to validate an otherwise illegal
detention and search, i.e., the consent is unequivocal, specific, and
intelligently given, uncontaminated by any duress or coercion. Hence,
consent to a search is not to be lightly inferred, but must be shown by
clear and convincing evidence. The question whether a consent to a
search was in fact voluntary is a question of fact to be determined from
the totality of all the circumstances. Relevant to this determination are
the following characteristics of the person giving consent and the
environment in which consent is given: (1) the age of the defendant;
(2) whether he was in a public or secluded location; (3) whether he
objected to the search or passively looked on; (4) the education and
intelligence of the defendant; (5) the presence of coercive
police procedures; (6) the defendant's belief that no incriminating
evidence will be found; (7) the nature of the police questioning; (8) the
environment in which the questioning took place; and (9) the possibly
vulnerable subjective state of the person consenting. It is the State which
has the burden of proving, by clear and positive testimony, that the
necessary consent was obtained and that it was freely and voluntarily
given.[32]

In the case at bar, following the theory of the prosecution albeit based on
conflicting testimonies on when petitioners bag was actually opened, it is apparent
that petitioner was already under the coercive control of the public officials who
had custody of him when the search of his bag was demanded. Moreover, the
prosecution failed to prove any specific statement as to how the consent was asked
and how it was given, nor the specific words spoken by petitioner indicating his
alleged "consent." Even granting that petitioner admitted to opening his bag when
Ordoo asked to see its contents, his implied acquiescence, if at all, could not have
been more than mere passive conformity given under coercive or intimidating
circumstances and hence, is considered no consent at all within the contemplation
of the constitutional guarantee.[33] As a result, petitioners lack of objection to the
search and seizure is not tantamount to a waiver of his constitutional right or a
voluntary submission to the warrantless search and seizure.[34]
III.
Notably, the inadmissibility in evidence of the seized marijuana leaves for
being the fruit of an unlawful search is not the lone cause that militates against the
case of the prosecution. We likewise find that it has failed to convincingly establish
the identity of the marijuana leaves purportedly taken from petitioners bag.
In all prosecutions for violation of the Dangerous Drugs Act, the following
elements must concur: (1) proof that the transaction took place; and (2)
presentation in court of the corpus delicti or the illicit drug as evidence.[35] The
existence of dangerous drugs is a condition sine qua non for conviction for the
illegal sale of dangerous drugs, it being the very corpus delicti of the crime.[36]
In a line of cases, we have ruled as fatal to the prosecutions case its failure to
prove that the specimen submitted for laboratory examination was the same one
allegedly seized from the accused.[37] There can be no crime of illegal possession of
a prohibited drug when nagging doubts persist on whether the item confiscated was
the same specimen examined and established to be the prohibited drug. [38] As we
discussed in People v. Orteza[39], where we deemed the prosecution to have failed

in establishing all the elements necessary for conviction of appellant for illegal sale
of shabu
First, there appears nothing in the record showing that police
officers complied with the proper procedure in the custody of seized
drugs as specified in People v. Lim, i.e., any apprehending team having
initial control of said drugs and/or paraphernalia should, immediately
after seizure or confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be any, and or his
representative, who shall be required to sign the copies of the inventory
and be given a copy thereof. The failure of the agents to comply with the
requirement raises doubt whether what was submitted for laboratory
examination and presented in court was actually recovered from
appellant. It negates the presumption that official duties have been
regularly performed by the police officers.
In People v. Laxa, where the buy-bust team failed to mark the
confiscated marijuana immediately after the apprehension of the accused,
the Court held that the deviation from the standard procedure in antinarcotics operations produced doubts as to the origins of the marijuana.
Consequently, the Court concluded that the prosecution failed to
establish the identity of the corpus delicti.
The Court made a similar ruling in People v. Kimura, where the
Narcom operatives failed to place markings on the seized marijuana at
the time the accused was arrested and to observe the procedure and take
custody of the drug.
More recently, in Zarraga v. People, the Court held that the
material inconsistencies with regard to when and where the markings on
the shabu were made and the lack of inventory on the seized drugs
created reasonable doubt as to the identity of the corpus delicti. The
Court thus acquitted the accused due to the prosecutions failure to
indubitably show the identity of the shabu.

In the case at bar, after the arrest of petitioner by the barangay tanod, the
records only show that he was taken to the house of the barangay captain and
thereafter to the police station. The Joint Affidavit[40] executed by the tanodmerely
states that they confiscated the marijuana leaves which they brought to the police
station together with petitioner. Likewise, the Receipt [41] issued by the Aringay

Police Station merely acknowledged receipt of the suspected drugs supposedly

confiscated from petitioner.
Not only did the three tanod contradict each other on the matter of when
petitioners bag was opened, they also gave conflicting testimony on who actually
opened the same. The prosecution, despite these material inconsistencies, neglected
to explain the discrepancies. Even more damning to its cause was the admission by
Laya, the forensic chemist, that he did not know how the specimen was taken from
petitioner, how it reached the police authorities or whose marking was on the
cellophane wrapping of the marijuana. The non-presentation, without justifiable
reason, of the police officers who conducted the inquest proceedings and marked
the seized drugs, if such was the case, is fatal to the case. Plainly, the prosecution
neglected to establish the crucial link in the chain of custody of the seized
marijuana leaves from the time they were first allegedly discovered until they were
brought for examination by Laya.
The Court of Appeals found as irrelevant the failure of the prosecution to
establish the chain of custody over the seized marijuana as such [f]inds prominence
only when the existence of the seized prohibited drug is denied. [42] We cannot
agree.
To buttress its ratiocination, the appellate court narrowed on petitioners
testimony that the marijuana was taken from his bag, without taking the statement
in full context.[43] Contrary to the Court of Appeals findings, although petitioner
testified that the marijuana was taken from his bag, he consistently denied
ownership thereof.[44]Furthermore, it defies logic to require a denial of ownership
of the seized drugs before the principle of chain of custody comes into play.
The onus of proving culpability in criminal indictment falls upon the State.
In conjunction with this, law enforcers and public officers alike have the corollary
duty to preserve the chain of custody over the seized drugs. The chain of evidence
is constructed by proper exhibit handling, storage, labeling and recording, and
must exist from the time the evidence is found until the time it is offered in
evidence. Each person who takes possession of the specimen is duty-bound to
detail how it was cared for, safeguarded and preserved while in his or her control to
prevent alteration or replacement while in custody. This guarantee of the integrity

of the evidence to be used against an accused goes to the very heart of his
fundamental rights.
The presumption of regularity in the performance of official duty invoked by
the prosecution and relied upon by the courts a quo cannot by itself overcome the
presumption of innocence nor constitute proof of guilt beyond reasonable doubt.
[45]
Among the constitutional rights enjoyed by an accused, the most primordial yet
often disregarded is the presumption of innocence. This elementary principle
accords every accused the right to be presumed innocent until the contrary is
proven beyond reasonable doubt. Thus, the burden of proving the guilt of the
accused rests upon the prosecution.
Concededly, the evidence of the defense is weak and uncorroborated.
Nevertheless, this [c]annot be used to advance the cause of the prosecution as its
evidence must stand or fall on its own weight and cannot be allowed to draw
strength from the weakness of the defense.[46] Moreover, where the circumstances
are shown to yield two or more inferences, one inconsistent with the presumption
of innocence and the other compatible with the finding of guilt, the court must
acquit the accused for the reason that the evidence does not satisfy the test of moral
certainty and is inadequate to support a judgment of conviction.[47]

Drug addiction has been invariably denounced as an especially vicious

crime, and one of the most pernicious evils that has ever crept into our society,
[49]
for those who become addicted to it not only slide into the ranks of the living
dead, what is worse, they become a grave menace to the safety of law-abiding
members of society,[50] whereas peddlers of drugs are actually agents of destruction.
[51]
Indeed, the havoc created by the ruinous effects of prohibited drugs on the
moral fiber of society cannot be underscored enough. However, in the rightfully
vigorous campaign of the government to eradicate the hazards of drug use and drug
trafficking, it cannot be permitted to run roughshod over an accuseds right to be
presumed innocent until proven to the contrary and neither can it shirk from its
corollary obligation to establish such guilt beyond reasonable doubt.
[48]

In this case, the totality of the evidence presented utterly fails to overcome
the presumption of innocence which petitioner enjoys. The failure of the
prosecution to prove all the elements of the offense beyond reasonable doubt must
perforce result in petitioners exoneration from criminal liability.

IV.
A final word. We find it fitting to take this occasion to remind the courts to
exercise the highest degree of diligence and prudence in deliberating upon the guilt
of accused persons brought before them, especially in light of the fundamental
rights at stake. Here, we note that the courts a quo neglected to give more serious
consideration to certain material issues in the determination of the merits of the
case. We are not oblivious to the fact that in some instances, law enforcers resort to
the practice of planting evidence to extract information or even harass civilians.
Accordingly, courts are duty-bound to be [e]xtra vigilant in trying drug cases lest
an innocent person be made to suffer the unusually severe penalties for drug
offenses.[52] In the same vein, let this serve as an admonition to police officers and
public officials alike to perform their mandated duties with commitment to the
highest degree of diligence, righteousness and respect for the law.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE.
Petitioner Arsenio Vergara Valdez is ACQUITTED on reasonable doubt. The
Director of the Bureau of Corrections is directed to cause the immediate release of
petitioner, unless the latter is being lawfully held for another cause; and to inform
the Court of

the date of his release, or the reasons for his continued confinement, within ten
(10) days from notice. No costs.

SO ORDERED.
THIRD DIVISION

THE
PEOPLE
THEPHILIPPINES,

OF

G.R. No. 176735

Plaintiff-Appellee,
Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
AZCUNA,*

JERRY SANTOS y MACOL

and RAMON CATOC y

CHICO-NAZARIO, and
REYES, JJ.

PICAYO,
Accused-Appellants.

Promulgated:

June 26, 2008

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

DECISION

CHICO-NAZARIO, J.:

Assailed before Us is the Decision[1] of the Court of Appeals

dated 29 November 2006 in CA-G.R. C.R.-HC No. 01291 which
affirmed the Decision[2] of the Regional Trial Court (RTC) of Pasig
City, Branch 70, in Criminal Cases No. 12193-D and No. 12194-D,
finding accused-appellants Jerry Santos y Macol and Ramon Catoc
y Picayo guilty of illegal sale of methamphetamine hydrochloride,
more popularly known as shabu, and finding accused-appellant
Ramon Catoc y Picayo guilty of illegal possession of the said
prohibited drug, respectively.

On 10 March 2003, two Informations were filed against

appellants Jerry Santos y Macol and Ramon Catoc y Picayo before
the RTC of Pasig City, for violating the provisions of Republic Act
No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

In Criminal Case No. 12193-D, appellants Santos and Catoc

allegedly violated Section 5, Article II of Republic Act No. 9165 [3] in
the following manner:

On or about March 8, 2003, in Pasig City and within the

jurisdiction of this Honorable Court, the accused,conspiring and
confederating together and both of them mutually helping and
aiding one another, not being lawfully authorized by law, did then
and there willfully, unlawfully and feloniously sell, deliver and give
away to PO3 Carlo Luna, a police poseur buyer, one (1) heatsealed transparent plastic sachet containing three (3)

centigrams (0.03 gram) of white crystalline substance, which

was found positive to the test for methylamphethamine
hydrochloride, a dangerous drug, in violation of the said law.
[4]

(Emphasis ours).

On the other hand, in Criminal Case No. 12194-D, appellant

Catoc was additionally charged with violation of Section 11,
Article II of the same law,[5] committed as follows:

On or about March 8 2003, in Pasig City and within the

jurisdiction of this Honorable Court, the accused, not being lawfully
authorized to possess any dangerous drug, did then and there
willfully, unlawfully and feloniously have in his possession and
under his custody and control one (1) heat-sealed transparent
plastic sachet containing three (3) centigrams (0.03 gram) of
white crystalline substance, which was found positive to the
test for methylamphethamine hydrochloride, a dangerous drug,
in violation of the said law.[6] (Emphasis ours).

During
their
arraignment
on 19
May
2003,
appellants Santos and Catoc pleaded not guilty to the abovementioned charges.[7]

On 3 June 2003, the Pre-Trial Conference of the cases was

terminated without the prosecution and the defense agreeing to
any stipulation of facts.[8]

On 5 August 2003, the parties, however, agreed to re-open

the Pre-Trial Conference and they entered into a stipulation of
facts as to the testimony to be given by the first prosecution
witness, Forensic Chemist Police Inspector (P/Insp.) Lourdeliza
Cejes.[9] As contained in the Pre-Trial Order dated 5 August 2003,
the parties stipulated on: (1) the due execution and genuineness

of the Request for Laboratory Examination dated 8 March 2003,

and the stamp showing receipt thereof by the Philippine National
Police (PNP) Crime Laboratory; (2) the due execution, genuineness
and truth of the contents of Physical Science Report No. D-40503E issued by Forensic Chemist P/Insp. Lourdeliza Cejes, the
finding or conclusion appearing on the report, and the signature
of the forensic chemist over her typewritten name appearing
therein; and (3) the existence of the plastic sachets, but not their
source or origin, contained in a brown envelope, the contents of
which were the subject of the Request for Laboratory
Examination.[10]

Thereafter, the cases were consolidated and tried jointly. [11]

The prosecution presented two witnesses: (1) Police Officer

(PO)3 Carlo Luna[12] and (2) Senior Police Officer (SPO)3 Leneal
Matias,[13] both members of the Station Drug Enforcement Unit
(SDEU)[14] of the Pasig City Police Station.

The defense, on the other hand, presented (1) appellant

Jerry Santos y Macol[15]; (2) appellant Ramon Catoc y Picayo [16]; (3)
Maria Violeta Catoc,[17] sister of appellant Catoc; and (4) Eric
Santos,[18] brother of appellant Santos.

The Peoples version of the facts shows that on 8 March 2003,

the SDEU operatives of the Pasig City Police conducted a buy-bust
operation in a residential area along Dr. Sixto Antonio Avenue,
Brgy. Rosario, Pasig City, on the basis of reports that a certain
alias Monching Labo was selling illegal drugs in the said locality.
[19]
Accompanied by a confidential informant, the police team
composed of PO3 Carlo Luna, SPO3 Leneal Matias, PO1 Michael
Espares and PO1 Michael Familara, proceeded to the target area
at around 1:15 to 1:20 a.m. on the above-mentioned date. PO3

Carlo Luna was to act as the poseur-buyer, whereas the other

members of the team were to serve as his backup. [20]

Upon reaching the designated place, PO3 Luna and the

informant alighted from their vehicle, while the rest of the team
were left inside.[21] The informant then pointed to two persons
standing along the target area, one of whom was Monching Labo,
later identified as appellant Ramon Catoc y Picayo. [22] After
approaching,
the
informant
introduced
PO3
Luna
as
a shabu customer to one of the persons, later identified as
appellant Jerry Santos y Macol. AppellantSantos then asked PO3
Luna how much worth of shabu he was buying and asked for the
money. PO3 Luna gave appellant Santos the buy-bust money
consisting
of
a
pre-marked P100.00
bill.
[23]
Appellant Santos handed this money to appellant Catoc, who
took out from his pocket a sealed transparent plastic sachet
containing a white crystalline substance, [24] which he handed back
to appellant Santos. When appellant Santos gave the plastic
sachet to PO3 Luna, the latter nabbed the former and introduced
himself as a policeman.[25]

At that point, the other members of the team arrived and

likewise held and arrested appellant Catoc. SPO3 Matias then
ordered appellant Catoc to empty the contents of his
pockets. After having done so, another plastic sachet containing a
similar crystalline substance[26] was recovered from appellant
Catoc, together with the marked P100.00 buy-bust money.
[27]
Immediately thereafter, the policemen marked the two plastic
sachets.[28] The sachet handed by appellant Santos to PO3 Luna
was marked with the latters initials CEL, his signature, and
appellant Santoss initials JMS.[29] On the other hand, the sachet
recovered from appellant Catoc by SPO3 Matias was marked with
the latters initials LTM, his signature and appellant Catocs initials
RPC.[30] The policemen then informed the appellants of their
violations and apprised them of their constitutional rights.
[31]
Afterwards, appellants Santos and Catoc were brought to the

Pasig City Police Station at Pariancillo Park, Pasig City, for proper
investigation.

PO3 Luna submitted the two plastic sachets containing the

white crystalline substance to the PNP Crime Laboratory Service,
Eastern Police District in Mandaluyong City for an examination of
the contents thereof.[32] The laboratory test results as contained in
Chemistry Report No. D-405-03E[33] stated the following:

SPECIMEN SUBMITTED:

Two (2) heat-sealed transparent plastic sachets with markings

CEL/JMS 030803 and RPC/LTM 030803 containing 0.03 gram of white
crystalline substance and marked as A and B respectively.

xxxx

FINDINGS:

Qualitative examination conducted on the above-stated

specimens
gave
[a]
POSITIVE
result
to
the
tests
for
Methylamphetamine hydrochloride, a dangerous drug. x x x

CONCLUSION:

Specimens A and B contains

hydrochloride, a dangerous drug.

(sic)

Methylamphetamine

As expected, the appellants offered a version of the facts

that
was
diametrically
opposed
to
that
of
the

prosecution. According to them, there was no buy-bust operation

to speak of and that prior to their arrests, they were literally
strangers to each other.

Appellant Jerry Santos y Macol testified that on 8 March

2003, at around 12:00 midnight to 1:00 a.m., while he was
watching television at their house at 151 Dr. Sixto Antonio
Avenue, Barangay (Brgy.) Rosario, Pasig City, and was about to
sleep, five male persons in civilian clothing suddenly entered and
handcuffed him.[34] Santos claimed that he voluntarily went with
the men when they tried to arrest him because his ailing mother,
who was then awakened, was already becoming nervous.
[35]
Santos was brought outside and placed in a tricycle, and the
entire group left for the police station. There, Santos was detained
and questioned about the marked money, which he said he knew
nothing about. Santos was then charged with the offense of
selling illegal drugs in violation of Section 5, Article II of Republic
Act No. 9165.[36] It was also at that time in the police station
where he first met appellant Catoc.[37]

For his part, appellant Ramon Catoc y Picayo narrated that

on 8
March
2003,
between
the
hours
of 11:00
p.m. and12:00 midnight, he awoke to a loud sound at the door of
their
house
at 125
Dr.
Sixto
Antonio
Avenue,
[38]
Brgy. Rosario,Pasig City.
When Catoc opened the door, five male
persons with guns entered their house. [39] The men frisked Catoc
and searched his house. After being likewise awakened, Catocs
mother asked the men what his sons fault was.They replied that
they were looking for the drugs that Catoc was selling. [40] When
their search yielded nothing, the men mauled Catoc. Afterwards,
Catoc was placed in a tricycle and the group headed for a
gasoline station along J. E. Manalo Street. There, Catoc was
transferred to a parked van; inside the vehicle was appellant Jerry
Santos y Macol, whom the former saw for the first time. [41] The
men
took
the
appellants
to
the
police
station
in Pariancillo Park where they were again mauled. The policemen
who arrested the appellants produced two plastic sachets

of shabu and aP100.00 bill and alleged that the same were taken
from Catocs possession. The appellants were then charged with
violation of Sections 5 and 11, Article II of Republic Act No. 9165.
[42]

On 4 May 2005, the trial court rendered its decision, the

pertinent portion of which states:

The Court is more inclined to give credence to the testimonies

of the prosecution witnesses given the presumption of regularity in the
performance of official duty accorded to them by law and
jurisprudence vis--vis the self-serving disclaimers of the herein
accused whose version of the incident as narrated above hardly
inspires belief.

It has been clearly established from the evidence adduced by

the State that at around 1:00 in the morning of March 8, 2003,
accused Jerry Santos and Ramon Catoc, in conspiracy with one
another, sold or traded and delivered, to PO3 Carlo Luna, in a buy-bust
operation, one transparent plastic sachet of shabu containing white
crystalline substance (Exh. C-1) in consideration of the amount of PHP
100.00 (Exh. D). x x x

That there was [a] conspiracy between the two accused as

alleged in the information in Criminal Case No. 12193-D, is
evident. The transaction was successfully consummated between the
poseur buyer PO3 Luna, on the one hand, and the accused Ramon
Catoc, together with his co-accused, Jerry Santos, on the other, with
accused Santos receiving the marked money from the poseur buyer
and thereafter handing the same to his co-accused Catoc who,
thereafter, took out from his right pocket a plastic sachet of shabu
which he gave to Santos, and which the latter in turn handed to PO3
Luna. There can be no other conclusion that can be drawn from the
above concerted actions of both accused, but that they were bound by
a common purpose and community of interest, indicative of
conspiracy, in committing the offense charged against them.

On the same occasion of the buy-bust operation, the police

officers were also able to recover from the possession of accused
Ramon Catoc another sachet of shabu weighing 0.03 grams (Exh. C-2)
which is in violation of Section 11 (Possession of Dangerous Drugs),
Article II of the same law, subject of Criminal Case No. 12194-D, which
penalizes the mere possession of dangerous drugs w/o (sic) being
authorized by law.

xxxx

WHEREFORE,
rendered, as follows:

premises

considered,

judgment

is

hereby

In Criminal Case No. 12193-D, both accused, JERRY

SANTOS y MACOL and RAMON CATOC y PICAYOare hereby
found GUILTY beyond reasonable doubt of the offense of Violation of
Section 5, Article II, Republic Act [No.] 9165 (illegal sale of shabu) and
are hereby sentenced to LIFE IMPRISONMENT and to solidarily pay
a Fine of Five Hundred Thousand Pesos (PHP500,000.00).

In Criminal Case No. 12194-D, accused RAMON CATOC y

PICAYO is hereby found GUILTY beyond reasonable doubt of the
offense of Violation of Section 11, Article II, Republic Act [No.] 9165
(illegal possession of shabu) and is hereby sentenced to Twelve (12)
Years and One (1) Day to Twenty (20) Years and to pay
a Fine of Three Hundred Thousand Pesos (PHP 300,000.00).

Considering the penalty imposed by the Court, [t]he immediate

commitment of accused Jerry Santos and Ramon Catoc to the National
Penitentiary, New Bilibid Prisons, Muntinlupa City is hereby ordered.

Pursuant to Section 20 of Republic Act [No.] 9165, the amount

of PHP 100.00 recovered from accused Ramon Catoc representing the
proceeds from the illegal sale of the transparent plastic sachet of
shabu is hereby ordered forfeited in favor of the government.

Again, pursuant to Section 21 of the same law, representatives

from the Philippine Drug Enforcement Agency (PDEA) is (sic) hereby
ordered to take charge and have custody over the sachets of shabu
subject of these cases, for proper disposition. [43]

In an Order dated 21 June 2005, the trial court elevated the

entire records of the case to the Court of Appeals for automatic
review in accordance with our ruling in People v. Mateo.[44]

On 29 November 2006, the Court of Appeals rendered its

decision, the dispositive portion of which reads:

WHEREFORE,
hereby AFFIRMED.

the

Decision

appealed

from

is

In sustaining the trial court, the Court of Appeals ruled that

the buy-bust operation conducted by the SDEU operatives was
legitimate and regular.[45] Furthermore, the testimonies of the
appellants and their witnesses were said to have contained
irreconcilable inconsistencies and that no ill motive for the alleged
frame-up was put forth by the appellants. [46]

Appellants Santos and Catoc filed a Notice of Appeal

assailing the appellate courts decision before the Supreme Court.
[47]

In a Resolution[48] dated 4 June 2007, the Court required the

parties to file their respective supplemental briefs, if they so

desired, within 30 days from notice. The parties manifested their

intention not to file their supplemental briefs anymore, as their
respective Briefs already encapsulated all the matters and
arguments that support their positions. [49]

In pleading for their innocence, appellants assign the

following errors:

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANTS OF VIOLATION OF SECTIONS 5 AND 11, ARTICLE II, OF
THE REPUBLIC ACT NO. 9165, WHEN THE LATTERS GUILT WERE NOT
PROVEN BEYOND REASONABLE DOUBT.

II.

THE TRIAL COURT GRAVELY ERRED IN FINDING [THAT] THE ACCUSEDAPPELLANTS CONSPIRED IN COMMITTING ILLEGAL SELLING AND
ILLEGAL POSSESSION OF DANGEROUS DRUGS.

Appellants contend that the trial court erred in convicting

them, as their guilt was not proven beyond reasonable doubt,
considering that the prosecution failed to prove that a buy-bust
operation took place and that their arrests without warrant were
not legally effected. Appellants also maintain that there was no
basis for the trial courts conclusion that a conspiracy existed
between them.

The arguments put forth by the appellants fail to persuade.

Fundamental is the principle that findings of the trial courts

which are factual in nature and which involve the credibility of
witnesses are accorded respect when no glaring errors; gross
misapprehension of facts; and speculative, arbitrary and
unsupported conclusions can be gathered from such findings. The
reason for this is that the trial court is in a better position to
decide the credibility of witnesses, having heard their testimonies
and observed their deportment and manner of testifying during
the trial. The rule finds an even more stringent application where
said findings are sustained by the Court of Appeals. [50]

After a careful evaluation of the entire records of the instant

case, we find no error in the trial and the appellate courts factual
findings and conclusions.

For the successful prosecution of offenses involving the

illegal sale of drugs under Section 5, Article II of Republic Act No.
9165, the following elements must be proven: (1) the identity of
the buyer and seller, object, and consideration; and (2) the
delivery of the thing sold and the payment therefor. [51] What is
material to the prosecution for illegal sale of dangerous drugs is
the proof that the transaction or sale actually took place, coupled
with the presentation in court of evidence of corpus delicti.[52]

In the present case, all the elements of the crime have been
sufficiently established. The prosecution witnesses PO3 Luna and
SPO3 Matias consistently testified that a buy-bust operation did
indeed take place, and the shabu subject of the sale was
presented and duly identified in open court. PO3 Luna, being the
poseur-buyer, positively identified appellants Santos and Catoc as
the persons who sold the sachet containing a white crystalline

substance,[53] which was later confirmed by a chemical analysis

thereof to be shabu.[54]

The relevant portions of PO3 Lunas testimony that detailed

the events leading to the arrests of appellants are as follows:
Q: Do you remember having been assigned as a poseur buyer on
said date, March 8, 2003?
A: Yes, sir.
Q: Against whom was supposed to be the task that you are going
to perform as a poseur buyer?
A: Against Monching Labo, sir.
xxxx

Q: What was the basis of this planned operation against

Monching Labo?
A: Because we have been receiving reports that this certain
Monching Labo has been selling illegal drugs along Dr. Sixto
Avenue in Pasig, sir.
Q: Are you trying to say that March 8 was not the first time that
you received information regarding Monching Labo?
A: Yes, sir.
Q: But it was only March 8 that you decided to conduct a buybust operation against Monching Labo?
A: Yes, sir.
Q: Were there preparations made by your office or by you
regarding this plan, buy-bust operation, to be conducted against
Monching Labo?
A: Yes, sir, we contacted an informant to confirm where
Monching Labo sells illegal drugs.
xxxx

Q: What are you going to use in buying?

A: Marked money, sir.
Q: Did you prepare for that also?
A: Yes, sir.
Q: Were there other police personnel that were assigned, aside
from you, to conduct this buy-bust operation against Monching
Labo?
A: Yes, sir, SPO3 Leneal Matias, PO1 Michael Espares and
PO1 Michael Familara.
xxxx

Q: What were supposed to be the role of these other police

officers that were going to accompany you particularly, Matias,
Espares and Familara?

A: They will act as back-up, sir.

Q: You said you prepared for a buy-money, how much was this?

A: One Hundred (PHP 100.00) Peso bill, sir.

xxxx

Q: Did you proceed, as plan, to the target area?

A: Yes, sir.

Q: And where was this, mr. (sic) witness?

A: Along Dr. Sixto Antonio, Brgy. Rosario, Pasig City, sir.

Q: What time did you reach that place?

A: About 1:15 to 1:20, sir.

Q: Of?

A: In the early morning of 1:15 to 1:20 a.m., sir.

Q: What else happened after you reached the place?

A: When we were ten (10) meters away from the designated area,
the informant pointed to us to two persons who were standing
along Dr. Sixto Antonio Avenue, Rosario, Pasig City, sir.

xxxx

Q: Who are these two persons, if you know?

A: According to the informant, he is Monching Labo, sir.

Q: Meaning, one of them is Monching Labo?

A: Yes, sir.

Q: After one of them has been identified by your informant, what

else did you do if any, mr. (sic) witness?

A: The informant and I approached them, and I was introduced by

the informant, sir.

Q: How were you introduced?

A: That I was a customer for shabu, and that I wanted to buy, sir.

Q: To whom did he tell from these two persons that you were interested
to buy?

A: I was introduced to Jerry Santos, sir.

Q: In other words, the other person is a certain Jerry Santos?

A: Yes, sir.

xxxx

Q: After you were introduced as [an] interested buyer to said

Jerry Santos, what else happened after that?

A: He asked me how much would I buy, and he asked me for

the money. And then, I told him just PHP100.00, sir.

Q: And when Jerry Santos asked you for the money, did you give
him the money?

A: Yes, sir.

Q: And after you gave him the money, what happened next?

A: I saw Jerry handed the money to the other person, sir.

Q: When you say other person, this is Monching Labo?

A: Yes, sir.

Q: And after Jerry Santos handed the One Hundred (PHP100.00)

Peso bill to Monching Labo, what else happened, if any?
A: Monching Labo took the PHP100.00 bill. After that, he put it inside
his pocket, and then, he got something from his pocket and handed it
to Jerry, sir.

Q: And after this something was handed to Jerry Santos, what

else happened?

A: Jerry Santos gave to me what was given to him by Monching, sir.

Q: And to your personal knowledge, what is that something that

was given by Monching to Jerry Santos who, Jerry Santos in
turn handed to you?

A: That was the shabu I was buying which was contained in a

plastic sachet, sir.

Q: When you say contained in a plastic sachet, you mean there is

only one (1)?

A: Yes, sir.

Q: After you received this one alleged plastic sachet of shabu

from Jerry Santos, what else did you do, if any?

A: I held Jerry Santos and introduced myself as a police officer, sir.

Q: After that, what happened next, if any?

A: My companions arrived and then, they also held Monching Labo sir.

Q: What else happened after that, mr. (sic) witness?

A: Police Officer Matias ordered Monching Labo to empty the contents

of his pocket, sir.

Q: And did Monching Labo comply?

A: Yes, sir.

Q: Would you know what Matias discovered

Labo complied with his order to empty his pocket?

after

Monching

A: Yes, sir, because he also recovered another plastic sachet, sir.

Q: Who recovered?

A: SPO3 Matias, sir.

Q: Which came from the pocket of Monching Labo?

A: Yes, sir.
Q: After this, what did you do or, your team do to the two persons?

A: We brought them to
proper investigation, sir.

our

office

at

the

Headquarters

for

Q: How about the two plastic sachets, the first one that was sold
and the other one that was recovered by SPO3 Matias, what was
your disposition about it?

A: Right there and then at the place, we already placed the

markings on the sachets, sir.

Q: After that, what else did you do with these two sachets?

A: We submitted the same to the laboratory for examination, sir.

Q: Do you remember who delivered it personally?

A: Yes, sir.

Q: Who?

A: I did, sir.

Q: Did you come to know later the true identity of Jerry Santos
and Monching Labo to whom you have transaction?

A: Yes, sir.

Q: Would Jerry Santos [be] the true name of this Jerry Santos
you mentioned earlier?

A: Yes, sir.

Q: How about this Monching Labo, did you come to know what is his
true name?

A: Yes, sir. After we have brought him to the police station, thats when
we discovered his real name, sir.

Q: And what is his real name?

A: Ramon Catoc, sir.[55]

The testimony of SPO3 Matias on the conduct of the buy-bust

operation corroborated the above testimony of PO3 Luna on all
material points and was equally clear and categorical.

Also proven from the testimonies of both PO3 Luna and SPO3
Matias is the charge against appellant Catoc in Criminal Case No.
12194-D for violation of Section 11, Article II, Republic Act No.
9165 (illegal possession of dangerous drugs).It was shown that
appellant knowingly carried with him the plastic sachet
of shabu without legal authority at the time he was caught during
the buy-bust operation.
On the other hand, the appellants contention that no buy-bust
operation took place was plainly anchored on the testimonies of
both appellants, who both gave different versions of what
transpired during the time and date in question; of Maria Violeta
Catoc, sister of appellant Ramon Catoc; and of Eric Santos, the
brother of appellant Jerry Santos. Both appellants chorused a
single line alibi. They strongly insisted that they were in their
respective houses during the alleged operations.

The singular reliance of the appellants on their alibis to argue

their cases was misplaced. As observed by the trial court, the selfserving disclaimers of the appellants inspired less belief than the
testimonies of the prosecution witnesses, who had in their favor a

presumption of regularity accorded to them by law. [56] The

respective alibis of appellants and their witnesses also contained
irreconcilable inconsistencies that only weakened their worth.

We uphold the presumption of regularity in the performance of

official duties. This presumption in favor of PO3 Luna and SPO3
Matias was not overcome. As testified to by the appellants, they
did not know any of the policemen who arrested them, and it was
only during the trial in open court that they came to know of the
identities of the above-mentioned policemen. [57] Thus, there was
no indication that the police were impelled by any improper
motive in making the arrests.

In appellant Jerry Santoss testimony on the events leading to his

arrest, he repeatedly changed his answer upon being asked why
he voluntarily went with the five men who entered his house on
the
night
in
question. In
his
direct
testimony,
appellant Santos testified that he went with the men so that his
mothers nervousness would not be further aggravated. [58] During
his cross-examination, he then stated that he voluntarily went
with the men so as not to awaken his sleeping mother. [59] Upon
being confronted with these statements, Santos then changed his
answer again and stated that his mother was already awake at
the time he went with the policemen.[60]

More glaring than the above-mentioned inconsistencies,

however, are the discrepancies in the testimonies of appellants
Jerry Santos and Ramon Catoc on the manner in which they were
taken to the police station and the circumstances of their first
meeting. The very premise of their defense is that they were total
strangers to each other; thus, they could not have been together
at the time when they were arrested, much less were they in
conspiracy with each other in the alleged commission of the
crimes charged.

Appellant Jerry Santos testified that after he was brought out of

his house, he was placed in a tricycle and was then taken straight
to the police station in Pariancillo Park, Pasig City.[61] While in
detention, he allegedly met Ramon Catoc for the first time. [62]

Appellant Ramon Catoc, on the other hand, gave an entirely

contradictory account of the said events. Catoc narrated in his
direct testimony that after the men took him and placed him in a
tricycle, he was taken to a gasoline station along J. E. Manalo
Street and was transferred to a parked van. Aboard the vehicle,
he said, was appellant Santos, whom he claimed he saw and
came to know for the first time.[63]

Even the testimony of defense witness Eric Santos, the brother of

appellant Jerry Santos, contained some noticeable incongruity
with the appellants narration of events. As remarked upon by the

Court of Appeals,[64] Eric Santos testified that the arrest of his

brother was made at 8:00 p.m. on 8 March 2003.[65] The timeline
of both the prosecution and the defense, however, puts the
occurrence of the events in question between the hours of 11:00
p.m. and 1:00 a.m.[66]

The testimonies of Maria Violeta Catoc, sister of appellant Catoc,

and Eric Santos, brother of appellant Santos, are also
suspect. Without clear and convincing evidence, no credence can
be accorded them.

In all of the above instances, no satisfactory explanation was

offered by appellants to resolve the conflicting accounts.No other
evidence was likewise offered to buttress these testimonies,
thereby weakening appellants alibis, as against the candid and
straightforward testimonies of the prosecution witnesses.

As consistently enunciated by this Court, the established

doctrine is that, for the defense of alibi to prosper, the accused
must prove not only that he was at some other place at the time
of the commission of the crime, but also that it was physically
impossible for him to be at the locus criminis or within its
immediate vicinity. The defense of alibi must be established by
positive, clear and satisfactory evidence, the reason being that it
is easily manufactured and usually so unreliable that it can rarely
be given credence. This is especially true in case of positive
identification of the culprit by reliable witnesses, which renders
their alibis worthless. Positive identification prevails over denials
and alibis.[67]

What is quite important to note at this point is the fact that the
defense failed to point out any single mistake or inconsistency in
the testimonies of either policeman. Consequently, the respective
rulings of the trial court and the Court of Appeals upholding the
regularity and the legitimacy of the conduct of the buy-bust
operation in this case are hereby affirmed.

The claim of appellants that their warrantless arrests were illegal

also lacks merit. The Court notes that nowhere in the records did
we find any objection by appellants to the irregularity of their
arrests prior to their arraignment. We have held in a number of
cases that the illegal arrest of an accused is not a sufficient cause
for setting aside a valid judgment rendered upon a sufficient
complaint after a trial free from error; such arrest does not negate
the validity of the conviction of the accused. It is much too late in
the day to complain about the warrantless arrest after a valid
information has been filed, the accused arraigned, trial
commenced and completed, and a judgment of conviction
rendered against him.[68]

Nevertheless, our ruling in People v. Cabugatan

[69]

provides that:

The rule is settled that an arrest made after an entrapment does not
require a warrant inasmuch as it is considered a valid warrantless
arrest pursuant to Rule 113, Section 5(a) of the Rules of Court, which
states:

SEC. 5. Arrest without warrant; when lawful. A peace

officer or a private person may, without a warrant, arrest
a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense.

As we have already declared the legality of the buy-bust

operation that was conducted by the police, it follows that the
subsequent
warrantless
arrests
were
likewise
legally
effected. Furthermore, any search resulting from the lawful
warrantless arrests was also valid, because the appellants
committed a crime in flagrante delicto; that is, the persons
arrested committed a crime in the presence of the arresting
officers.[70]

As for appellants contention that the trial court erred in finding

the existence of a conspiracy, the same should also fail.Contrary
to appellants assertions,[71] the findings of the trial court that they
conspired with each other is limited only to the crime of illegal
sale of dangerous drugs in Criminal Case No. 12193-D, and does
not pertain to the crime of illegal possession of dangerous drugs
in Criminal Case No. 12194-D.

There is conspiracy when two or more persons come to an

agreement concerning the commission of a felony and decide to

commit it. The same degree of proof necessary to prove the crime
is required to support a finding of criminal conspiracy. Direct
proof, however, is not essential to show conspiracy. [72] It need not
be shown that the parties actually came together and agreed in
express terms to enter into and pursue a common design. Proof of
concerted action before, during and after the crime, which
demonstrates their unity of design and objective is sufficient.
[73]
As correctly held by the trial court, the act of
appellant Santos in receiving the marked money from PO3 Luna
and handing the same to appellant Catoc, who in turn gave a
sachet
containing shabu to
appellant Santos to
give
the
policeman, unmistakably revealed a common purpose and a
community of interest indicative of a conspiracy between the
appellants.[74]
In light of the foregoing, we rule that the guilt of
appellants Santos and Catoc has been established beyond
reasonable doubt. A determination of the appropriate penalties to
be imposed upon them is now in order.

Under the law, the illegal sale of shabu carries with it the penalty
of life imprisonment to death and a fine ranging from five hundred
thousand
pesos
(P500,000.00)
to
ten
million
pesos
(P10,000,000.00), regardless of the quantity and purity of the
substance involved or shall act as a broker in any such
transaction.[75] On the other hand, the illegal possession of less
than five (5) grams of said dangerous drug is penalized with
imprisonment of twelve (12) years and one (1) day to twenty (20)

years and a fine ranging from three hundred thousand pesos

(P300,000.00) to four hundred thousand pesos (P400,000.00).[76]
In accordance with Section 98, Article XIII of Republic Act No.
9165, the provisions of the Revised Penal Code find limited
applicability with respect to the provisions of the said Act. Section
98 reads:

Sec.
98. Limited
Applicability
of
the Revised
Penal
Code. Notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code (Act No. 3815), as amended,
shall not apply to the provisions of this Act, except in the case of
minor offenders. Where the offender is a minor, the penalty for acts
punishable by life imprisonment to death provided herein shall
be reclusion perpetua to death.

Thus, in determining the imposable penalty, Article 63(2) of the

Revised Penal Code shall not be applied. Under this article, in all
cases in which the law prescribes a penalty composed of two
indivisible penalties, the lesser penalty shall be applied when
there are neither mitigating nor aggravating circumstances.
[77]
Since Section 98 of the Drugs Law contains the word shall, the
non-applicability of the Revised Penal Code provisions is
mandatory, subject to exception only in case the offender is a
minor.[78]

In the imposition of the proper penalty, the courts, taking into

account the circumstances attendant in the commission of the
offense, are given the discretion to impose either life
imprisonment or death, and the fine as provided for by law. In
light, however, of the effectivity of Republic Act No. 9346 entitled,
An Act Prohibiting the Imposition of Death Penalty in
the Philippines, the imposition of the supreme penalty of death
has been prohibited. Consequently, the penalty to be meted out
to appellant shall only be life imprisonment and fine. [79] Hence,
the penalty of life imprisonment and a fine of P500,000.00 were
properly imposed on appellants Jerry Santos y Macol and Ramon
Catoc y Picayo in Criminal Case No. 12193-D for illegal sale
of shabu.

Likewise, the conviction of appellant Ramon Catoc y Picayo

and the imposition of the penalty of twelve (12) years and one (1)
day to fifteen (15) years imprisonment and the fine
of P300,000.00 meted out by the trial court with respect to
Criminal Case No. 12194-D for illegal possession of shabu, are
affirmed.

WHEREFORE, premises considered, the Decision dated 29

November 2006 of the Court of Appeals in CA-G.R. CR-H.C. No.
01291, affirming in toto the Decision of the Regional Trial Court of
Pasig City, Branch 70, in Criminal Case No. 12193-D and Criminal
Case No. 12194-D, is hereby AFFIRMED. No costs.

G.R. No. 127685 July 23, 1998

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.

PUNO, J.:
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.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
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;
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;
WHEREAS, a concerted and collaborative effort among the various basic services
and social security providing agencies and other government intrumentalities 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:
Sec. 1. Establishment of a National Compoterized 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.
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.
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.
(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:
A. THE ESTABLISNMENT 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.
C. 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
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
We now resolve.
I

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.
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 all-encompassing 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 Presidents. 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.
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 structure 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 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 guideline 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.D. No. 308 is not a law because it confers no
right, imposes no duty, affords no proctection, 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: ". . . Many regulations however, bear directly on the public. It is here that administrative
legislation must he restricted in its scope and application. Regulations are not supposed to be a
substitute for the general policy-making 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
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 . . . 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 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."
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 xxx xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offence 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.
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."
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 protectad 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.
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
"[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. 40Invasion
of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits
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 provides 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 applicatin of statistical methods to biological facts; a
mathematical analysis of biological data." 45 The term "biometrics" has 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 idenfication systems use a card or personal identificatin 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
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 banquest 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 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 undarplayed 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 formidable informatin 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 infomation 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 he 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 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 date 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 Natioal 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 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. gives the IACC virtually
infettered discretion to determine the metes and bounds of the ID System.
Nor do your present laws prvide 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. 74These 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 cocludes
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 hod 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 Constitutions.
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 Substance Act of 1972 required
physicians to identify parties 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 disclosuer of personal matter 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 recommmendation 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 informatin. It ebumerated 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 agains the
use of computers to accumulate, store, process, retvieve and transmit data to improve our
bureaucracy. Computers work wonders to achieve the efficiency which both government and private
industry seek. Many information system in different countries make use of the computer to facilitate
important social objective, 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 well-defined 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:

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 disctinctions 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 th
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 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 Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" declared null and void for being
unconstitutional.
SO ORDERED.
G.R. No. 174340

October 17, 2006

IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS OF

CAMILO L. SABIO,petitioner,
J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,
vs.
HONORABLE SENATOR RICHARD GORDON, in his capacity as Chairman, and the
HONORABLE MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND
PUBLIC ENTERPRISES and THE COMMITTEE ON PUBLIC SERVICES of the Senate,

HONORABLE SENATOR JUAN PONCE-ENRILE, in his official capacity as Member,

HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANT-AT-ARMS, and the
SENATE OF THE PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174318

October 17, 2006

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and CAMILO L. SABIO,

Chairman, NARCISO S. NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and NICASIO A.
CONTI, Commissioners, MANUEL ANDAL and JULIO JALANDONI, PCGG nominees to
Philcomsat Holdings Corporation,petitioners,
vs.
RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF THE COMMITTEE ON
GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF THE
COMMITTEE ON PUBLIC SERVICES, SENATOR JUAN PONCE-ENRILE, in his capacity as
member of both said Committees, MANUEL VILLAR, Senate President, THE SENATE
SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174177

October 17, 2006

PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS K. LOKIN, JR.,

ROBERTO V. SAN JOSE, DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA ALOBBA,
and JOHNNY TAN, petitioners,
vs.
SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and PUBLIC ENTERPRISES, its
MEMBERS and CHAIRMAN, the HONORABLE SENATOR RICHARD GORDON and SENATE
COMMITTEE ON PUBLIC SERVICES, its Members and Chairman, the HONORABLE SENATOR
JOKER P. ARROYO, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:
Two decades ago, on February 28, 1986, former President Corazon C. Aquino installed her regime
by issuing Executive Order (E.O.) No. 1,1 creating the Presidential Commission on Good
Government (PCGG). She entrusted upon this Commission the herculean task of recovering the illgotten wealth accumulated by the deposed President Ferdinand E. Marcos, his family, relatives,
subordinates and close associates.2 Section 4 (b) of E.O. No. 1 provides that: "No member or staff
of the Commission shall be required to testify or produce evidence in any judicial, legislative
or administrative proceeding concerning matters within its official cognizance." Apparently,
the purpose is to ensure PCGG's unhampered performance of its task. 3

Today, the constitutionality of Section 4(b) is being questioned on the ground that it tramples upon
the Senate's power to conduct legislative inquiry under Article VI, Section 21 of the 1987
Constitution, which reads:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
The facts are undisputed.
On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution
No. 455 (Senate Res. No. 455),4 "directing an inquiry in aid of legislation on the anomalous losses
incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation
(PHC) due to the alleged improprieties in their operations by their respective Board of Directors."
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the representation and entertainment expense of the
PHC skyrocketed to P4.3 million, as compared to the previous year's mere P106 thousand;
WHEREAS, some board members established wholly owned PHC subsidiary called
Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18
months, over P73 million had been allegedly advanced to TCI without any accountability
report given to PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive
committee of Philcomsat has precipitately released P265 million and granted P125 million
loan to a relative of an executive committee member; to date there have been no payments
given, subjecting the company to an estimated interest income loss of P11.25 million in 2004;
WHEREAS, there is an urgent need to protect the interest of the Republic of the Philippines
in the PHC, PHILCOMSAT, and POTC from any anomalous transaction, and to conserve or
salvage any remaining value of the government's equity position in these corporations from
any abuses of power done by their respective board of directors;
WHEREFORE, be it resolved that the proper Senate Committee shall conduct an
inquiry in aid of legislation, on the anomalous losses incurred by the Philippine
Overseas Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC)
due to the alleged improprieties in the operations by their respective board of
directors.
Adopted.
(Sgd) MIRIAM DEFENSOR SANTIAGO
On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and
referred to theCommittee on Accountability of Public Officers and Investigations and Committee on

Public Services. However, on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was
transferred to the Committee on Government Corporations and Public Enterprises.5
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon,
wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of
the resource persons in the public meeting jointly conducted by the Committee on Government
Corporations and Public Enterprises and Committee on Public Services. The purpose of the public
meeting was to deliberate on Senate Res. No. 455.6
On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment. 7 At the same
time, he invoked Section 4(b) of E.O. No. 1 earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,8 approved by Senate
President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo
Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing
scheduled on August 23, 2006 and testify on what they know relative to the matters specified in
Senate Res. No. 455. Similar subpoenae were issued against the directors and officers of
Philcomsat Holdings Corporation, namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin,
Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin
P. Angcao, Alma Kristina Alloba and Johnny Tan.9
Again, Chairman Sabio refused to appear. In his letter to Senator Gordon dated August 18, 2006, he
reiterated his earlier position, invoking Section 4(b) of E.O. No. 1. On the other hand, the directors
and officers of Philcomsat Holdings Corporation relied on the position paper they previously filed,
which raised issues on the propriety of legislative inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator Gordon, sent
another notice10 to Chairman Sabio requiring him to appear and testify on the same subject matter
set on September 6, 2006. The notice was issued "under the same authority of the Subpoena Ad
Testificandum previously served upon (him) last 16 August 2006."
Once more, Chairman Sabio did not comply with the notice. He sent a letter 11 dated September 4,
2006 to Senator Gordon reiterating his reason for declining to appear in the public hearing.
This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring Chairman
Sabio and Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be
cited in contempt of the Senate. On September 11, 2006, they submitted to the Senate their
Compliance and Explanation,12 which partly reads:
Doubtless, there are laudable intentions of the subject inquiry in aid of legislation. But
the rule of law requires that even the best intentions must be carried out within the
parameters of the Constitution and the law. Verily, laudable purposes must be carried out by
legal methods. (Brillantes, Jr., et al. v. Commission on Elections, En Banc [G.R. No. 163193,
June 15, 2004])
On this score, Section 4(b) of E.O. No. 1 should not be ignored as it explicitly provides:
No member or staff of the Commission shall be required to testify or produce
evidence in any judicial legislative or administrative proceeding concerning
matters within its official cognizance.

With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of
legislative inquiry, and a recognition by the State of the need to provide protection to the
PCGG in order to ensure the unhampered performance of its duties under its charter. E.O.
No. 1 is a law, Section 4(b) of which had not been amended, repealed or revised in any way.
To say the least, it would require both Houses of Congress and Presidential fiat to amend or
repeal the provision in controversy. Until then, it stands to be respected as part of the legal
system in this jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88, October
12, 1995: Obedience to the rule of law forms the bedrock of our system of justice. If judges,
under the guise of religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, judges are
guided by the Rule of Law, and ought to 'protect and enforce it without fear or favor,' 4 [Act of
Athens (1955)] resist encroachments by governments, political parties, or even the
interference of their own personal beliefs.)
xxxxxx
Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006 pointed out that
the anomalous transactions referred to in the P.S. Resolution No. 455 are subject of pending
cases before the regular courts, the Sandiganbayan and the Supreme Court (Pending cases
include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No. 89102; b. Philippine
Communications Satellite Corporation v. Manuel Nieto, et al.; c. Philippine Communications
Satellite Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC, Branch 61, Makati
City; d. Philippine Communications Satellite Corporation v. PHILCOMSAT Holdings
Corporation, et al., Civil Case No. 04-1049) for which reason they may not be able to testify
thereon under the principle of sub judice. The laudable objectives of the PCGG's functions,
recognized in several cases decided by the Supreme Court, of the PCGG will be put to
naught if its recovery efforts will be unduly impeded by a legislative investigation of cases
that are already pending before the Sandiganbayan and trial courts.
In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the Honorable
Supreme Court held:
"[T]he issues sought to be investigated by the respondent Committee is one over
which jurisdiction had been acquired by the Sandiganbayan. In short, the issue has
been pre-empted by that court. To allow the respondent Committee to conduct its
own investigation of an issue already before the Sandigabayan would not only pose
the possibility of conflicting judgments between a legislative committee and a judicial
tribunal, but if the Committee's judgment were to be reached before that of the
Sandiganbayan, the possibility of its influence being made to bear on the ultimate
judgment of the Sandiganbayan can not be discounted.
xxxxxx
IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission decided not
to attend the Senate inquiry to testify and produce evidence thereat.
Unconvinced with the above Compliance and Explanation, the Committee on Government
Corporations and Public Enterprises and the Committee on Public Services issued an
Order13 directing Major General Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman

Sabio and his Commissioners under arrest for contempt of the Senate. The Order bears the
approval of Senate President Villar and the majority of the Committees' members.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in
his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises
where he was detained.
Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the
Senate Committee on Government Corporations and Public Enterprises and Committee on Public
Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members. The case
was docketed as G.R. No. 174340.
Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the PCGG's nominees to
Philcomsat Holdings Corporation, Manuel Andal and Julio Jalandoni, likewise filed a petition for
certiorari and prohibition against the same respondents, and also against Senate President Manuel
Villar, Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the entire Senate. The case was
docketed as G.R. No. 174318.
Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely: Philip G. Brodett,
Luis K. Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and
Johnny Tan filed a petition for certiorari and prohibition against the Senate Committees on
Government Corporations and Public Enterprises and Public Services, their Chairmen, Senators
Gordon and Arroyo, and Members. The case was docketed as G.R. No. 174177.
In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and prohibition)
Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier; and the PCGG's nominees Andal
and Jalandoni alleged: first, respondent Senate Committees disregarded Section 4(b) of E.O. No. 1
without any justifiable reason; second, the inquiries conducted by respondent Senate Committees
are not in aid of legislation; third, the inquiries were conducted in the absence of duly
published Senate Rules of Procedure Governing Inquiries in Aid of Legislation; and fourth,
respondent Senate Committees are not vested with the power of contempt.
In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers
alleged: first, respondent Senate Committees have no jurisdiction over the subject matter stated in
Senate Res. No. 455;second, the same inquiry is not in accordance with the Senate's Rules of
Procedure Governing Inquiries in Aid of Legislation; third, the subpoenae against the individual
petitioners are void for having been issued without authority; fourth, the conduct of legislative inquiry
pursuant to Senate Res. No. 455 constitutes undue encroachment by respondents into justiciable
controversies over which several courts and tribunals have already acquired jurisdiction; and fifth,
the subpoenae violated petitioners' rights to privacy and against self-incrimination.
In their Consolidated Comment, the above-named respondents countered: first, the issues raised in
the petitions involve political questions over which this Court has no jurisdiction; second, Section
4(b) has been repealed by the Constitution; third, respondent Senate Committees are vested with
contempt power; fourth, Senate's Rules of Procedure Governing Inquiries in Aid of Legislation have
been duly published; fifth, respondents have not violated any civil right of the individual petitioners,
such as their (a) right to privacy; and (b) right against self-incrimination; and sixth, the inquiry does
not constitute undue encroachment into justiciable controversies.
During the oral arguments held on September 21, 2006, the parties were directed to submit
simultaneously their respective memoranda within a non-extendible period of fifteen (15) days from
date. In the meantime, per agreement of the parties, petitioner Chairman Sabio was allowed to go

home. Thus, his petition for habeas corpus has become moot. The parties also agreed that the
service of the arrest warrants issued against all petitioners and the proceedings before the
respondent Senate Committees are suspended during the pendency of the instant cases. 14
Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of
E.O. No. 1 is repealed by the 1987 Constitution. On this lone issue hinges the merit of the
contention of Chairman Sabio and his Commissioners that their refusal to appear before respondent
Senate Committees is justified. With the resolution of this issue, all the other issues raised by the
parties have become inconsequential.
Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987 Constitution granting
respondent Senate Committees the power of legislative inquiry. It reads:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by
exempting all PCGG members or staff from testifying in any judicial, legislative or administrative
proceeding, thus:
No member or staff of the Commission shall be required to testify or produce
evidence in any judicial, legislative or administrative proceeding concerning matters
within its official cognizance.
To determine whether there exists a clear and unequivocal repugnancy between the two quoted
provisions that warrants a declaration that Section 4(b) has been repealed by the 1987 Constitution,
a brief consideration of the Congress' power of inquiry is imperative.
The Congress' power of inquiry has been recognized in foreign jurisdictions long before it reached
our shores through McGrain v. Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier days,
American courts considered the power of inquiry as inherent in the power to legislate. The 1864
case of Briggs v. MacKellar17explains the breath and basis of the power, thus:
Where no constitutional limitation or restriction exists, it is competent for either of the two
bodies composing the legislature to do, in their separate capacity, whatever may be essential
to enable them to legislate.It is well-established principle of this parliamentary law,
that either house may institute any investigationhaving reference to its own organization,
the conduct or qualification of its members, its proceedings, rights, or privileges or any
matter affecting the public interest upon which it may be important that it should have
exact information, and in respect to which it would be competent for it to legislate.
The right to pass laws, necessarily implies the right to obtain information upon any
matter which may become the subject of a law. It is essential to the full and intelligent
exercise of the legislative function.In American legislatures the investigation of
public matters before committees, preliminary to legislation, or with the view of
advising the house appointing the committee is, as a parliamentary usage, well
established as it is in England, and the right of either house to compel witnesses to appear
and testify before its committee, and to punish for disobedience has been frequently
enforced.The right of inquiry, I think, extends to other matters, in respect to which it may be
necessary, or may be deemed advisable to apply for legislative aid.

Remarkably, in Arnault, this Court adhered to a similar theory. Citing McGrain, it recognized that the
power of inquiry is "an essential and appropriate auxiliary to the legislative function," thus:
Although there is no provision in the "Constitution expressly investing either House of
Congress with power to make investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such power is so far incidental to
the legislative function as to be implied. In other words,the power of inquiry with process
to enforce it is an essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and
where the legislation body does not itself possess the requisite information which is
not infrequently true recourse must be had to others who possess it."
Dispelling any doubt as to the Philippine Congress' power of inquiry, provisions on such power made
their maiden appearance in Article VIII, Section 12 of the 1973 Constitution. 18 Then came the 1987
Constitution incorporating the present Article VI, Section 12. What was therefore implicit under the
1935 Constitution, as influenced by American jurisprudence, became explicit under the 1973 and
1987 Constitutions.19
Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also
of "any of its committee." This is significant because it constitutes a direct conferral of investigatory
power upon the committees and it means that the mechanisms which the Houses can take in order
to effectively perform its investigative function are also available to the committees. 20
It can be said that the Congress' power of inquiry has gained more solid existence and expansive
construal. The Court's high regard to such power is rendered more evident in Senate v.
Ermita,21 where it categorically ruled that"the power of inquiry is broad enough to cover officials
of the executive branch." Verily, the Court reinforced the doctrine in Arnault that "the operation of
government, being a legitimate subject for legislation, is a proper subject for
investigation" and that "the power of inquiry is co-extensive with the power to legislate."
Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI,
Section 21. Section 4(b) exempts the PCGG members and staff from the Congress' power of
inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such
exemption. The Congress' power of inquiry, being broad, encompasses everything that concerns the
administration of existing laws as well as proposed or possibly needed statutes. 22 It even extends "to
government agencies created by Congress and officers whose positions are within the power
of Congress to regulate or even abolish."23 PCGG belongs to this class.
Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the
absence of any constitutional basis.
Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating
that: "Public office is a public trust. Public officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism
and justice, and lead modest lives."
The provision presupposes that since an incumbent of a public office is invested with certain powers
and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are
held in trust for the people and are to be exercised in behalf of the government or of all
citizens who may need the intervention of the officers. Such trust extends to all matters

within the range of duties pertaining to the office. In other words, public officers are but the
servants of the people, and not their rulers.24
Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public
accountability. It places the PCGG members and staff beyond the reach of courts, Congress and
other administrative bodies. Instead of encouraging public accountability, the same provision only
institutionalizes irresponsibility and non-accountability. In Presidential Commission on Good
Government v. Pea,25 Justice Florentino P. Feliciano characterized as "obiter" the portion of the
majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages
filed against the PCGG and its Commissioners. He eloquently opined:
The above underscored portions are, it is respectfully submitted, clearly obiter. It is
important to make clear that the Court is not here interpreting, much less upholding
as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order
No.1. If Section 4 (a) were given its literal import as immunizing the PCGG or any member
thereof from civil liability "for anything done or omitted in the discharge of the task
contemplated by this Order," the constitutionality of Section 4 (a) would, in my submission,
be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the
irresponsibility and non-accountability of members and staff of the PCGG, a notion that is
clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed
by any other official of the Republic under the 1987 Constitution. x x x.
xxxxxx
It would seem constitutionally offensive to suppose that a member or staff member of
the PCGG could not be required to testify before the Sandiganbayan or that such
members were exempted from complying with orders of this Court.
Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section 4(b) has been frowned upon
by this Court even before the filing of the present petitions.
Corollarily, Section 4(b) also runs counter to the following constitutional provisions ensuring the
people's access to information:
Article II, Section 28
Subject to reasonable conditions prescribed by law, the State adopts and implements
a policy of full public disclosure of all its transactions involving public interest.
Article III, Section 7
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
These twin provisions of the Constitution seek to promote transparency in policy-making and in the
operations of the government, as well as provide the people sufficient information to enable them to
exercise effectively their constitutional rights. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government policies and their effective

implementation. In Valmonte v. Belmonte, Jr.27 the Court explained that an informed citizenry is
essential to the existence and proper functioning of any democracy, thus:
An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit Congress
but also the citizenry. The people are equally concerned with this proceeding and have the right to
participate therein in order to protect their interests. The extent of their participation will largely
depend on the information gathered and made known to them. In other words, the right to
information really goes hand-in-hand with the constitutional policies of full public disclosure and
honesty in the public service. It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in the government. 28 The cases
ofTaada v. Tuvera29 and Legaspi v. Civil Service Commission30 have recognized a citizen's interest
and personality to enforce a public duty and to bring an action to compel public officials and
employees to perform that duty.
Section 4(b) limits or obstructs the power of Congress to secure from PCGG members and staff
information and other data in aid of its power to legislate. Again, this must not be countenanced.
In Senate v. Ermita,31 this Court stressed:
To the extent that investigations in aid of legislation are generally conducted in
public, however, any executive issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of public
concern. The citizens are thereby denied access to information which they can use in
formulating their own opinions on the matter before Congress opinions which they can then
communicate to their representatives and other government officials through the various
legal means allowed by their freedom of expression.
A statute may be declared unconstitutional because it is not within the legislative power to enact;
or it creates or establishes methods or forms that infringe constitutional principles; or its purpose
or effect violates the Constitution or its basic principles.32 As shown in the above discussion,
Section 4(b) is inconsistent withArticle VI, Section 21 (Congress' power of inquiry), Article XI,
Section 1 (principle of public accountability),Article II, Section 28 (policy of full disclosure)
and Article III, Section 7 (right to public information).
Significantly, Article XVIII, Section 3 of the Constitution provides:
All existing laws, decrees, executive orders, proclamations, letters of instructions, and other
executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
The clear import of this provision is that all existing laws, executive orders, proclamations, letters of
instructions and other executive issuances inconsistent or repugnant to the Constitution are
repealed.

Jurisprudence is replete with decisions invalidating laws, decrees, executive orders, proclamations,
letters of instructions and other executive issuances inconsistent with the Constitution. In Pelaez v.
Auditor General,33 the Court considered repealed Section 68 of the Revised Administrative Code of
1917 authorizing the Executive to change the seat of the government of any subdivision of local
governments, upon the approval of the 1935 Constitution. Section 68 was adjudged incompatible
and inconsistent with the Constitutional grant of limited executive supervision over local
governments. In Islamic Da'wah Council of the Philippines, Inc., v. Office of the Executive
Secretary,34 the Court declared Executive Order No. 46, entitled "Authorizing the Office on Muslim
Affairs to Undertake Philippine Halal Certification," void for encroaching on the religious freedom of
Muslims. InThe Province of Batangas v. Romulo,35 the Court declared some provisions of the
General Appropriations Acts of 1999, 2000 and 2001 unconstitutional for violating the Constitutional
precept on local autonomy. And in Ople v. Torres,36 the Court likewise declared unconstitutional
Administrative Order No. 308, entitled "Adoption of a National Computerized Identification Reference
System," for being violative of the right to privacy protected by the Constitution.
These Decisions, and many others, highlight that the Constitution is the highest law of the land. It is
"the basic and paramount law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer. No act shall be valid, however noble its
intentions, if it conflicts with the Constitution."37 Consequently, this Court has no recourse but to
declare Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution.
Significantly, during the oral arguments on September 21, 2006, Chairman Sabio admitted that
should this Court rule that Section 4(b) is unconstitutional or that it does not apply to the Senate, he
will answer the questions of the Senators, thus:
CHIEF JUSTICE PANGANIBAN:
Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it
does not apply to the Senate, will you answer the questions of the Senators?
CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a judge. I was here in the Supreme
Court as Chief of Staff of Justice Feria. I would definitely honor the Supreme Court
and the rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if we say that?
CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I am concerned.
With his admission, Chairman Sabio is not fully convinced that he and his Commissioners are
shielded from testifying before respondent Senate Committees by Section 4(b) of E.O. No. 1. In
effect, his argument that the said provision exempts him and his co-respondent Commissioners from
testifying before respondent Senate Committees concerning Senate Res. No. 455 utterly lacks merit.
Incidentally, an argument repeated by Chairman Sabio is that respondent Senate Committees have
no power to punish him and his Commissioners for contempt of the Senate.

The argument is misleading.

Article VI, Section 21 provides:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
It must be stressed that the Order of Arrest for "contempt of Senate Committees and the Philippine
Senate" wasapproved by Senate President Villar and signed by fifteen (15) Senators. From this,
it can be concluded that the Order is under the authority, not only of the respondent Senate
Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and the House
of Representatives, but also to any of their respective committees. Clearly, there is a direct
conferral of powerto the committees. Father Bernas, in his Commentary on the 1987 Constitution,
correctly pointed out its significance:
It should also be noted that the Constitution explicitly recognizes the power of investigation
not just of Congress but also of "any of its committees." This is significant because it
constitutes a direct conferral of investigatory power upon the committees and it
means that the means which the Houses can take in order to effectively perform its
investigative function are also available to the Committees.38
This is a reasonable conclusion. The conferral of the legislative power of inquiry upon any committee
of Congress must carry with it all powers necessary and proper for its effective discharge. Otherwise,
Article VI, Section 21 will be meaningless. The indispensability and usefulness of the power of
contempt in a legislative inquiry is underscored in a catena of cases, foreign and local.
In the 1821 case of Anderson v. Dunn,39 the function of the Houses of Congress with respect to the
contempt power was likened to that of a court, thus:
But the court in its reasoning goes beyond this, and though the grounds of the decision are
not very clearly stated, we take them to be: that there is in some cases a power in each
House of Congress to punish for contempt; that this power is analogous to that
exercised by courts of justice, and that it being the well established doctrine that
when it appears that a prisoner is held under the order of a court of general
jurisdiction for a contempt of its authority, no other court will discharge the prisoner
or make further inquiry into the cause of his commitment. That this is the general rule
as regards the relation of one court to another must be conceded.
In McGrain,40 the U.S. Supreme Court held: "Experience has shown that mere requests for such
information are often unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to obtain what is needed."
The Court, in Arnault v. Nazareno,41sustained the Congress' power of contempt on the basis of this
observation.
In Arnault v. Balagtas,42 the Court further explained that the contempt power of Congress is founded
upon reason and policy and that the power of inquiry will not be complete if for every contumacious
act, Congress has to resort to judicial interference, thus:

The principle that Congress or any of its bodies has the power to punish recalcitrant
witnesses is founded upon reason and policy. Said power must be considered implied or
incidental to the exercise of legislative power. How could a legislative body obtain the
knowledge and information on which to base intended legislation if it cannot require
and compel the disclosure of such knowledge and information if it is impotent to
punish a defiance of its power and authority? When the framers of the Constitution
adopted the principle of separation of powers, making each branch supreme within
the realm of its respective authority, it must have intended each department's
authority to be full and complete, independently of the other's authority or power. And
how could the authority and power become complete if for every act of refusal, every
act of defiance, every act of contumacy against it, the legislative body must resort to
the judicial department for the appropriate remedy, because it is impotent by itself to
punish or deal therewith, with the affronts committed against its authority or dignity.43
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete,44 the
Court characterized contempt power as a matter of self-preservation, thus:
The exercise by the legislature of the contempt power is a matter of self-preservation as
that branch of the government vested with the legislative power, independently of the judicial
branch, asserts its authority and punishes contempts thereof. The contempt power of the
legislature is, therefore, sui generis x x x.
Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings Corporation and its
directors and officers, this Court holds that the respondent Senate Committees' inquiry does not
violate their right to privacy and right against self-incrimination.
One important limitation on the Congress' power of inquiry is that "the rights of persons appearing
in or affected by such inquiries shall be respected." This is just another way of saying that the
power of inquiry must be "subject to the limitations placed by the Constitution on government action."
As held in Barenblatt v. United States,45 "the Congress, in common with all the other branches of
the Government, must exercise its powers subject to the limitations placed by the
Constitution on governmental action, more particularly in the context of this case, the
relevant limitations of the Bill of Rights."
First is the right to privacy.
Zones of privacy are recognized and protected in our laws. 46 Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal process.
The meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized men,"47 but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."48
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that
explicitly create zones of privacy. It highlights a person's "right to be let alone" or the "right to
determine what, how much, to whom and when information about himself shall be
disclosed."49 Section 2 guarantees "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." Section 3 renders inviolable the "privacy of communication and
correspondence" and further cautions that "any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any proceeding."

In evaluating a claim for violation of the right to privacy, a court must determine whether a person
has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion.50 Applying this determination to these cases, the
important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation
exhibit a reasonable expectation of privacy?; andsecond, did the government violate such
expectation?
The answers are in the negative. Petitioners were invited in the Senate's public hearing to deliberate
on Senate Res. No. 455, particularly "on the anomalous losses incurred by the Philippine
Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite
Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged
improprieties in the operations by their respective board of directors." Obviously, the inquiry
focus on petitioners' acts committed in the discharge of their duties as officers and directors of the
said corporations, particularly Philcomsat Holdings Corporation. Consequently, they have no
reasonable expectation of privacy over matters involving their offices in a corporation where
the government has interest. Certainly, such matters are of public concern and over which
the people have the right to information.
This goes to show that the right to privacy is not absolute where there is an overriding compelling
state interest. In Morfe v. Mutuc,51 the Court, in line with Whalen v. Roe,52 employed the rational
basis relationship test when it held that there was no infringement of the individual's right to privacy
as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the
opportunities for official corruption, maintain a standard of honesty in public service, and promote
morality in public administration.53 In Valmonte v. Belmonte,54 the Court remarked that as public
figures, the Members of the former Batasang Pambansa enjoy a more limited right to privacy as
compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into
consideration, the Court ruled that the right of the people to access information on matters of public
concern prevails over the right to privacy of financial transactions.
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC,
ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials
are compelling reasons for the Senate to exact vital information from the directors and officers of
Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it
in crafting the necessary legislation to prevent corruption and formulate remedial measures and
policy determination regarding PCGG's efficacy. There being no reasonable expectation of privacy
on the part of those directors and officers over the subject covered by Senate Res. No. 455, it
follows that their right to privacy has not been violated by respondent Senate Committees.
Anent the right against self-incrimination, it must be emphasized that this right maybe invoked by the
said directors and officers of Philcomsat Holdings Corporation only when the incriminating
question is being asked, since they have no way of knowing in advance the nature or effect
of the questions to be asked of them."55 That this right may possibly be violated or abused is no
ground for denying respondent Senate Committees their power of inquiry. The consolation is that
when this power is abused, such issue may be presented before the courts. At this juncture, what is
important is that respondent Senate Committees have sufficient Rules to guide them when the right
against self-incrimination is invoked. Sec. 19 reads:
Sec. 19. Privilege Against Self-Incrimination
A witness can invoke his right against self-incrimination only when a question tends to elicit
an answer that will incriminate him is propounded to him. However, he may offer to answer
any question in an executive session.

No person can refuse to testify or be placed under oath or affirmation or answer questions
before an incriminatory question is asked. His invocation of such right does not by itself
excuse him from his duty to give testimony.
In such a case, the Committee, by a majority vote of the members present there being a
quorum, shall determine whether the right has been properly invoked. If the Committee
decides otherwise, it shall resume its investigation and the question or questions previously
refused to be answered shall be repeated to the witness. If the latter continues to refuse to
answer the question, the Committee may punish him for contempt for contumacious conduct.
The same directors and officers contend that the Senate is barred from inquiring into the same
issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or
pendency of any prosecution of criminal or administrative action should not stop or abate any inquiry
to carry out a legislative purpose.
Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman
Sabio and his Commissioners, will be respected by respondent Senate Committees, it their duty to
cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The
unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the
Congress and its Committees, and to testify fully with respect to matters within the realm of proper
investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio
Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat
Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad
Testificandum issued by respondent Senate Committees directing them to appear and testify in
public hearings relative to Senate Resolution No. 455.
WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for being moot.
The petitions in G.R Nos. 174318 and 174177 are likewise DISMISSED.
Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. Respondent Senate
Committees' power of inquiry relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo
L. Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso Javier; and
Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well
as its directors and officers, petitioners in G.R. No. 174177, are ordered to comply with
the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to
appear and testify in public hearings relative to Senate Resolution No. 455.
SO ORDERED.