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EN BANC

CARLOS SUPERDRUG CORP., G.R. No. 166494


doing business under the name
and style Carlos Superdrug, Present:
ELSIE M. CANO, doing business
under the name and style Advance PUNO, C.J.,
Drug, Dr. SIMPLICIO L. YAP, JR., QUISUMBING,*
doing business under the name and YNARES-SANTIAGO,
style City Pharmacy, MELVIN S. SANDOVAL-GUTIERREZ,**
DELA SERNA, doing business under CARPIO,
the name and style Botica dela Serna, AUSTRIA-MARTINEZ,
and LEYTE SERV-WELL CORP., CORONA,
doing business under the name and CARPIO MORALES,
style Leyte Serv-Well Drugstore, AZCUNA,
Petitioners, TINGA,
CHICO-NAZARIO,
- versus - GARCIA,
VELASCO, JR., and
DEPARTMENT OF SOCIAL NACHURA, JJ.
WELFARE and DEVELOPMENT
(DSWD), DEPARTMENT OF Promulgated:
HEALTH (DOH), DEPARTMENT
OF FINANCE (DOF), DEPARTMENT June 29, 2007
OF JUSTICE (DOJ), and
DEPARTMENT OF INTERIOR and
LOCAL GOVERNMENT (DILG),
Respondents.
x ---------------------------------------------------------------------------------------- x

DECISION

AZCUNA, J.:
This is a petition[1] for Prohibition with Prayer for Preliminary Injunction assailing the constitutionality of Section 4(a) of
Republic Act (R.A.) No. 9257,[2] otherwise known as the Expanded Senior Citizens Act of 2003.

Petitioners are domestic corporations and proprietors operating drugstores in the Philippines.

Public respondents, on the other hand, include the Department of Social Welfare and Development (DSWD), the Department of
Health (DOH), the Department of Finance (DOF), the Department of Justice (DOJ), and the Department of Interior and Local
Government (DILG) which have been specifically tasked to monitor the drugstores compliance with the law; promulgate the
implementing rules and regulations for the effective implementation of the law; and prosecute and revoke the licenses of erring
drugstore establishments.

The antecedents are as follows:

On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432,[3] was signed into law by President Gloria Macapagal-
Arroyo and it became effective on March 21, 2004. Section 4(a) of the Act states:

SEC. 4. Privileges for the Senior Citizens. The senior citizens shall be entitled to the following:

(a) the grant of twenty percent (20%) discount from all establishments relative to the utilization of
services in hotels and similar lodging establishments, restaurants and recreation centers, and purchase of
medicines in all establishments for the exclusive use or enjoyment of senior citizens, including funeral and
burial services for the death of senior citizens;
...

The establishment may claim the discounts granted under (a), (f), (g) and (h) as tax
deduction based on the net cost of the goods sold or services rendered: Provided, That the cost of the
discount shall be allowed as deduction from gross income for the same taxable year that the discount is
granted. Provided, further, That the total amount of the claimed tax deduction net of value added tax if
applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue Code, as amended.[4]

On May 28, 2004, the DSWD approved and adopted the Implementing Rules and Regulations of R.A. No. 9257, Rule
VI, Article 8 of which states:

Article 8. Tax Deduction of Establishments. The establishment may claim the discounts granted
under Rule V, Section 4 Discounts for Establishments;[5] Section 9, Medical and Dental Services in Private
Facilities[,][6] and Sections 10[7] and 11[8] Air, Sea and Land Transportation as tax deduction based on the net
cost of the goods sold or services rendered. Provided, That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year that the discount is granted; Provided, further, That
the total amount of the claimed tax deduction net of value added tax if applicable, shall be included in their
gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of
the National Internal Revenue Code, as amended; Provided, finally, that the implementation of the tax
deduction shall be subject to the Revenue Regulations to be issued by the Bureau of Internal Revenue (BIR)
and approved by the Department of Finance (DOF).[9]
On July 10, 2004, in reference to the query of the Drug Stores Association of the Philippines (DSAP) concerning the
meaning of a tax deduction under the Expanded Senior Citizens Act, the DOF, through Director IV Ma. Lourdes B. Recente,
clarified as follows:

1) The difference between the Tax Credit (under the Old Senior Citizens Act) and Tax Deduction
(under the Expanded Senior Citizens Act).

1.1. The provision of Section 4 of R.A. No. 7432 (the old Senior Citizens Act) grants twenty
percent (20%) discount from all establishments relative to the utilization of transportation services,
hotels and similar lodging establishment, restaurants and recreation centers and purchase of
medicines anywhere in the country, the costs of which may be claimed by the private establishments
concerned as tax credit.

Effectively, a tax credit is a peso-for-peso deduction from a taxpayers tax liability due to
the government of the amount of discounts such establishment has granted to a senior citizen. The
establishment recovers the full amount of discount given to a senior citizen and hence, the
government shoulders 100% of the discounts granted.

It must be noted, however, that conceptually, a tax credit scheme under the Philippine tax
system, necessitates that prior payments of taxes have been made and the taxpayer is attempting to
recover this tax payment from his/her income tax due. The tax credit scheme under R.A. No. 7432
is, therefore, inapplicable since no tax payments have previously occurred.

1.2. The provision under R.A. No. 9257, on the other hand, provides that the
establishment concerned may claim the discounts under Section 4(a), (f), (g) and (h) as tax
deduction from gross income, based on the net cost of goods sold or services rendered.

Under this scheme, the establishment concerned is allowed to deduct from gross income,
in computing for its tax liability, the amount of discounts granted to senior citizens. Effectively, the
government loses in terms of foregone revenues an amount equivalent to the marginal tax rate the
said establishment is liable to pay the government. This will be an amount equivalent to 32% of the
twenty percent (20%) discounts so granted. The establishment shoulders the remaining portion of
the granted discounts.
It may be necessary to note that while the burden on [the] government is slightly diminished
in terms of its percentage share on the discounts granted to senior citizens, the number of potential
establishments that may claim tax deductions, have however, been broadened. Aside from the
establishments that may claim tax credits under the old law, more establishments were added
under the new law such as: establishments providing medical and dental services, diagnostic and
laboratory services, including professional fees of attending doctors in all private hospitals and
medical facilities, operators of domestic air and sea transport services, public railways and skyways
and bus transport services.

A simple illustration might help amplify the points discussed above, as follows:

Tax Deduction Tax Credit

Gross Sales x x x x x x x x x x x x
Less : Cost of goods sold x x x x x x x x x x
Net Sales x x x x x x x x x x x x
Less: Operating Expenses:
Tax Deduction on Discounts x x x x --
Other deductions: x x x x x x x x
Net Taxable Income x x x x x x x x x x
Tax Due x x x x x x
Less: Tax Credit -- ______x x
Net Tax Due -- x x
As shown above, under a tax deduction scheme, the tax deduction on discounts was subtracted
from Net Sales together with other deductions which are considered as operating expenses before the Tax
Due was computed based on the Net Taxable Income. On the other hand, under a tax credit scheme, the
amount of discounts which is the tax credit item, was deducted directly from the tax due amount.[10]

Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or the Policies and Guidelines to Implement the
Relevant Provisions of Republic Act 9257, otherwise known as the Expanded Senior Citizens Act of 2003 [11] was issued by the
DOH, providing the grant of twenty percent (20%) discount in the purchase of unbranded generic medicines from all
establishments dispensing medicines for the exclusive use of the senior citizens.
On November 12, 2004, the DOH issued Administrative Order No 177[12] amending A.O. No. 171. Under A.O. No. 177, the
twenty percent discount shall not be limited to the purchase of unbranded generic medicines only, but shall extend to both
prescription and non-prescription medicines whether branded or generic. Thus, it stated that [t]he grant of twenty percent (20%)
discount shall be provided in the purchase of medicines from all establishments dispensing medicines for the exclusive use of
the senior citizens.

Petitioners assail the constitutionality of Section 4(a) of the Expanded Senior Citizens Act based on the following grounds:[13]

1) The law is confiscatory because it infringes Art. III, Sec. 9 of the Constitution which provides that
private property shall not be taken for public use without just compensation;

2) It violates the equal protection clause (Art. III, Sec. 1) enshrined in our Constitution which states
that no person shall be deprived of life, liberty or property without due process of law, nor shall any
person be denied of the equal protection of the laws; and

3) The 20% discount on medicines violates the constitutional guarantee in Article XIII, Section 11
that makes essential goods, health and other social services available to all people at affordable
cost.[14]

Petitioners assert that Section 4(a) of the law is unconstitutional because it constitutes deprivation of private property.
Compelling drugstore owners and establishments to grant the discount will result in a loss of profit
and capital because 1) drugstores impose a mark-up of only 5% to 10% on branded medicines; and 2) the law failed to provide
a scheme whereby drugstores will be justly compensated for the discount.

Examining petitioners arguments, it is apparent that what petitioners are ultimately questioning is the validity of the tax
deduction scheme as a reimbursement mechanism for the twenty percent (20%) discount that they extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully reimburse petitioners for the
discount privilege accorded to senior citizens. This is because the discount is treated as a deduction, a tax-deductible expense
that is subtracted from the gross income and results in a lower taxable income. Stated otherwise, it is an amount that is allowed
by law[15] to reduce the income prior to the application of the tax rate to compute the amount of tax which is due. [16] Being a tax
deduction, the discount does not reduce taxes owed on a peso for peso basis but merely offers a fractional reduction in taxes
owed.

Theoretically, the treatment of the discount as a deduction reduces the net income of the private establishments
concerned. The discounts given would have entered the coffers and formed part of the gross sales of the private
establishments, were it not for R.A. No. 9257.

The permanent reduction in their total revenues is a forced subsidy corresponding to the taking of private property for
public use or benefit.[17] This constitutes compensable taking for which petitioners would ordinarily become entitled to a just
compensation.

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator.
The measure is not the takers gain but the owners loss. The word just is used to intensify the meaning of the
word compensation, and to convey the idea that the equivalent to be rendered for the property to be taken shall be real,
substantial, full and ample.[18]

A tax deduction does not offer full reimbursement of the senior citizen discount. As such, it would not meet the
definition of just compensation.[19]

Having said that, this raises the question of whether the State, in promoting the health and welfare of a special group
of citizens, can impose upon private establishments the burden of partly subsidizing a government program.

The Court believes so.

The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building, and to
grant benefits and privileges to them for their improvement and well-being as the State considers them an integral part of our
society.[20]

The priority given to senior citizens finds its basis in the Constitution as set forth in the law itself. Thus, the Act
provides:

SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:

SECTION 1. Declaration of Policies and Objectives. Pursuant to Article XV, Section 4 of the
Constitution, it is the duty of the family to take care of its elderly members while the State may design
programs of social security for them. In addition to this, Section 10 in the Declaration of Principles and State
Policies provides: The State shall provide social justice in all phases of national development. Further, Article
XIII, Section 11, provides: The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social services available to all
the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly,
disabled, women and children. Consonant with these constitutional principles the following are the declared
policies of this Act:

...

(f) To recognize the important role of the private sector in the improvement of the welfare of
senior citizens and to actively seek their partnership.[21]
To implement the above policy, the law grants a twenty percent discount to senior citizens for medical and dental services, and
diagnostic and laboratory fees; admission fees charged by theaters, concert halls, circuses, carnivals, and other similar places
of culture, leisure and amusement; fares for domestic land, air and sea travel; utilization of services in hotels and similar lodging
establishments, restaurants and recreation centers; and purchases of medicines for the exclusive use or enjoyment of senior
citizens. As a form of reimbursement, the law provides that business establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.

The law is a legitimate exercise of police power which, similar to the power of eminent domain, has general welfare for its
object. Police power is not capable of an exact definition, but has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response to conditions and
circumstances, thus assuring the greatest benefits. [22] Accordingly, it has been described as the most essential, insistent and
the least limitable of powers, extending as it does to all the great public needs. [23] It is [t]he power vested in the legislature by the
constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth,
and of the subjects of the same.[24]

For this reason, when the conditions so demand as determined by the legislature, property rights must bow to the
primacy of police power because property rights, though sheltered by due process, must yield to general welfare.[25]

Police power as an attribute to promote the common good would be diluted considerably if on the mere plea of
petitioners that they will suffer loss of earnings and capital, the questioned provision is invalidated. Moreover, in the absence of
evidence demonstrating the alleged confiscatory effect of the provision in question, there is no basis for its nullification in view
of the presumption of validity which every law has in its favor.[26]

Given these, it is incorrect for petitioners to insist that the grant of the senior citizen discount is unduly oppressive to
their business, because petitioners have not taken time to calculate correctly and come up with a financial report, so that they
have not been able to show properly whether or not the tax deduction scheme really works greatly to their disadvantage.[27]

In treating the discount as a tax deduction, petitioners insist that they will incur losses because, referring to the DOF
Opinion, for every P1.00 senior citizen discount that petitioners would give, P0.68 will be shouldered by them as only P0.32 will
be refunded by the government by way of a tax deduction.

To illustrate this point, petitioner Carlos Super Drug cited the anti-hypertensive maintenance drug Norvasc as an
example. According to the latter, it acquires Norvasc from the distributors at P37.57 per tablet, and retails it at P39.60 (or at a
margin of 5%). If it grants a 20% discount to senior citizens or an amount equivalent to P7.92, then it would have to
sell Norvasc at P31.68 which translates to a loss from capital of P5.89 per tablet. Even if the government will allow a tax
deduction, only P2.53 per tablet will be refunded and not the full amount of the discount which is P7.92. In short, only 32% of
the 20% discount will be reimbursed to the drugstores.[28]

Petitioners computation is flawed. For purposes of reimbursement, the law states that the cost of the discount shall be
deducted from gross income,[29] the amount of income derived from all sources before deducting allowable expenses, which will
result in net income. Here, petitioners tried to show a loss on a per transaction basis, which should not be the case. An income
statement, showing an accounting of petitioners sales, expenses, and net profit (or loss) for a given period could have
accurately reflected the effect of the discount on their income. Absent any financial statement, petitioners cannot substantiate
their claim that they will be operating at a loss should they give the discount. In addition, the computation was erroneously
based on the assumption that their customers consisted wholly of senior citizens. Lastly, the 32% tax rate is to be imposed on
income, not on the amount of the discount.

Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the prices of their medicines given
the cutthroat nature of the players in the industry. It is a business decision on the part of petitioners to peg the mark-up at 5%.
Selling the medicines below acquisition cost, as alleged by petitioners, is merely a result of this decision. Inasmuch as pricing is
a property right, petitioners cannot reproach the law for being oppressive, simply because they cannot afford to raise their
prices for fear of losing their customers to competition.
The Court is not oblivious of the retail side of the pharmaceutical industry and the competitive pricing component of the
business. While the Constitution protects property rights, petitioners must accept the realities of business and the State, in the
exercise of police power, can intervene in the operations of a business which may result in an impairment of property rights in
the process.

Moreover, the right to property has a social dimension. While Article XIII of the Constitution provides the precept for the
protection of property, various laws and jurisprudence, particularly on agrarian reform and the regulation of contracts and public
utilities, continuously serve as a reminder that the right to property can be relinquished upon the command of the State for the
promotion of public good.[30]

Undeniably, the success of the senior citizens program rests largely on the support imparted by petitioners and the
other private establishments concerned. This being the case, the means employed in invoking the active participation of the
private sector, in order to achieve the purpose or objective of the law, is reasonably and directly related. Without sufficient proof
that Section 4(a) of R.A. No. 9257 is arbitrary, and that the continued implementation of the same would be unconscionably
detrimental to petitioners, the Court will refrain from quashing a legislative act.[31]
WHEREFORE, the petition is DISMISSED for lack of merit.

No costs.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 161107 March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina City, JOSEPHINE C. EVANGELIST A, in
her capacity as Chief, Permit Division, Office of the City Engineer, and ALFONSO ESPIRITU, in his capacity as City
Engineer of Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-MARIKINA, INC., Respondents.

DECISION

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court, which seeks to set aside the
December 1, 2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 75691.

The Facts

Respondents St. Scholasticas College (SSC) and St. Scholasticas Academy-Marikina, Inc. (SSA-Marikina) are educational
institutions organized under the laws of the Republic of the Philippines, with principal offices and business addresses at Leon
Guinto Street, Malate, Manila, and at West Drive, Marikina Heights, Marikina City, respectively. 2

Respondent SSC is the owner of four (4) parcels of land measuring a total of 56,306.80 square meters, located in Marikina
Heights and covered by Transfer Certificate Title (TCT) No. 91537. Located within the property are SSA-Marikina, the residence
of the sisters of the Benedictine Order, the formation house of the novices, and the retirement house for the elderly sisters. The
property is enclosed by a tall concrete perimeter fence built some thirty (30) years ago. Abutting the fence along the West Drive
are buildings, facilities, and other improvements.3

The petitioners are the officials of the City Government of Marikina. On September 30, 1994, the Sangguniang Panlungsod of
Marikina City enacted Ordinance No. 192,4 entitled "Regulating the Construction of Fences and Walls in the Municipality of
Marikina." In 1995 and 1998, Ordinance Nos. 2175 and 2006 were enacted to amend Sections 7 and 5, respectively. Ordinance
No. 192, as amended, is reproduced hereunder, as follows:

ORDINANCE No. 192


Series of 1994

ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN THE MUNICIPALITY OF MARIKINA

WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the Local Government Code of 1991 empowers
the Sangguniang Bayan as the local legislative body of the municipality to "x x x Prescribe reasonable limits and restraints on
the use of property within the jurisdiction of the municipality, x x x";

WHEREAS the effort of the municipality to accelerate its economic and physical development, coupled with urbanization and
modernization, makes imperative the adoption of an ordinance which shall embody up-to-date and modern technical design in
the construction of fences of residential, commercial and industrial buildings;

WHEREAS, Presidential Decree No. 1096, otherwise known as the National Building Code of the Philippines, does not
adequately provide technical guidelines for the construction of fences, in terms of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide more efficient and effective enforcement of laws on public
safety and security;

WHEREAS, it has occurred in not just a few occasions that high fences or walls did not actually discourage but, in fact, even
protected burglars, robbers, and other lawless elements from the view of outsiders once they have gained ingress into these
walls, hence, fences not necessarily providing security, but becomes itself a "security problem";

WHEREAS, to discourage, suppress or prevent the concealment of prohibited or unlawful acts earlier enumerated, and as
guardian of the people of Marikina, the municipal government seeks to enact and implement rules and ordinances to protect
and promote the health, safety and morals of its constituents;

WHEREAS, consistent too, with the "Clean and Green Program" of the government, lowering of fences and walls shall
encourage people to plant more trees and ornamental plants in their yards, and when visible, such trees and ornamental plants
are expected to create an aura of a clean, green and beautiful environment for Marikeos;

WHEREAS, high fences are unsightly that, in the past, people planted on sidewalks to "beautify" the faade of their residences
but, however, become hazards and obstructions to pedestrians;

WHEREAS, high and solid walls as fences are considered "un-neighborly" preventing community members to easily
communicate and socialize and deemed to create "boxed-in" mentality among the populace;

WHEREAS, to gather as wide-range of opinions and comments on this proposal, and as a requirement of the Local
Government Code of 1991 (R.A. 7160), the Sangguniang Bayan of Marikina invited presidents or officers of homeowners
associations, and commercial and industrial establishments in Marikina to two public hearings held on July 28, 1994 and August
25, 1994;

WHEREAS, the rationale and mechanics of the proposed ordinance were fully presented to the attendees and no vehement
objection was presented to the municipal government;

NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN OF MARIKINA IN SESSION DULY ASSEMBLED:

Section 1. Coverage: This Ordinance regulates the construction of all fences, walls and gates on lots classified or used for
residential, commercial, industrial, or special purposes.

Section 2. Definition of Terms:

a. Front Yard refers to the area of the lot fronting a street, alley or public thoroughfare.

b. Back Yard the part of the lot at the rear of the structure constructed therein.

c. Open fence type of fence which allows a view of "thru-see" of the inner yard and the improvements therein.
(Examples: wrought iron, wooden lattice, cyclone wire)

d. Front gate refers to the gate which serves as a passage of persons or vehicles fronting a street, alley, or public
thoroughfare.

Section 3. The standard height of fences or walls allowed under this ordinance are as follows:

(1) Fences on the front yard shall be no more than one (1) meter in height. Fences in excess of one (1) meter shall
be of an open fence type, at least eighty percent (80%) see-thru; and

(2) Fences on the side and back yard shall be in accordance with the provisions of P.D. 1096 otherwise known as
the National Building Code.
Section 4. No fence of any kind shall be allowed in areas specifically reserved or classified as parks.

Section 5. In no case shall walls and fences be built within the five (5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial establishments and educational and religious institutions.7

Section 6. Exemption.

(1) The Ordinance does not cover perimeter walls of residential subdivisions.

(2) When public safety or public welfare requires, the Sangguniang Bayan may allow the construction and/or
maintenance of walls higher than as prescribed herein and shall issue a special permit or exemption.

Section 7. Transitory Provision. Real property owners whose existing fences and walls do not conform to the specifications
herein are allowed adequate period of time from the passage of this Ordinance within which to conform, as follows:

(1) Residential houses eight (8) years

(2) Commercial establishments five (5) years

(3) Industrial establishments three (3) years

(4) Educational institutions five (5) years8 (public and privately owned)

Section 8. Penalty. Walls found not conforming to the provisions of this Ordinance shall be demolished by the municipal
government at the expense of the owner of the lot or structure.

Section 9. The Municipal Engineering Office is tasked to strictly implement this ordinance, including the issuance of the
necessary implementing guidelines, issuance of building and fencing permits, and demolition of non-conforming walls at the
lapse of the grace period herein provided.

Section 10. Repealing Clause. All existing Ordinances and Resolutions, Rules and Regulations inconsistent with the foregoing
provisions are hereby repealed, amended or modified.

Section 11. Separability Clause. If for any reason or reasons, local executive orders, rules and regulations or parts thereof in
conflict with this Ordinance are hereby repealed and/or modified accordingly.

Section 12. Effectivity. This ordinance takes effect after publication.

APPROVED: September 30, 1994

(Emphases supplied)

On April 2, 2000, the City Government of Marikina sent a letter to the respondents ordering them to demolish and replace the
fence of their Marikina property to make it 80% see-thru, and, at the same time, to move it back about six (6) meters to provide
parking space for vehicles to park.9 On April 26, 2000, the respondents requested for an extension of time to comply with the
directive.10 In response, the petitioners, through then City Mayor Bayani F. Fernando, insisted on the enforcement of the subject
ordinance.

Not in conformity, the respondents filed a petition for prohibition with an application for a writ of preliminary injunction and
temporary restraining order before the Regional Trial Court, Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-381-
MK.11

The respondents argued that the petitioners were acting in excess of jurisdiction in enforcing Ordinance No. 192, asserting that
such contravenes Section 1, Article III of the 1987 Constitution. That demolishing their fence and constructing it six (6) meters
back would result in the loss of at least 1,808.34 square meters, worth about 9,041,700.00, along West Drive, and at least
1,954.02 square meters, worth roughly 9,770,100.00, along East Drive. It would also result in the destruction of the garbage
house, covered walk, electric house, storage house, comfort rooms, guards room, guards post, waiting area for visitors, waiting
area for students, Blessed Virgin Shrine, P.E. area, and the multi-purpose hall, resulting in the permanent loss of their beneficial
use. The respondents, thus, asserted that the implementation of the ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that the petitioners could only appropriate a portion of their property
through eminent domain. They also pointed out that the goal of the provisions to deter lawless elements and criminality did not
exist as the solid concrete walls of the school had served as sufficient protection for many years.12

The petitioners, on the other hand, countered that the ordinance was a valid exercise of police power, by virtue of which, they
could restrain property rights for the protection of public safety, health, morals, or the promotion of public convenience and
general prosperity.13

On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining the petitioners from implementing the demolition of
the fence at SSCs Marikina property.14

Ruling of the RTC

On the merits, the RTC rendered a Decision,15 dated October 2, 2002, granting the petition and ordering the issuance of a writ
of prohibition commanding the petitioners to permanently desist from enforcing or implementing Ordinance No. 192 on the
respondents property.

The RTC agreed with the respondents that the order of the petitioners to demolish the fence at the SSC property in Marikina
and to move it back six (6) meters would amount to an appropriation of property which could only be done through the exercise
of eminent domain. It held that the petitioners could not take the respondents property under the guise of police power to evade
the payment of just compensation.

It did not give weight to the petitioners contention that the parking space was for the benefit of the students and patrons of
SSA-Marikina, considering that the respondents were already providing for sufficient parking in compliance with the standards
under Rule XIX of the National Building Code.

It further found that the 80% see-thru fence requirement could run counter to the respondents right to privacy, considering that
the property also served as a residence of the Benedictine sisters, who were entitled to some sense of privacy in their affairs. It
also found that the respondents were able to prove that the danger to security had no basis in their case. Moreover, it held that
the purpose of beautification could not be used to justify the exercise of police power.

It also observed that Section 7 of Ordinance No. 192, as amended, provided for retroactive application. It held, however, that
such retroactive effect should not impair the respondents vested substantive rights over the perimeter walls, the six-meter
strips of land along the walls, and the building, structures, facilities, and improvements, which would be destroyed by the
demolition of the walls and the seizure of the strips of land.

The RTC also found untenable the petitioners argument that Ordinance No. 192 was a remedial or curative statute intended to
correct the defects of buildings and structures, which were brought about by the absence or insufficiency of laws. It ruled that
the assailed ordinance was neither remedial nor curative in nature, considering that at the time the respondents perimeter wall
was built, the same was valid and legal, and the ordinance did not refer to any previous legislation that it sought to correct.

The RTC noted that the petitioners could still take action to expropriate the subject property through eminent domain.

The RTC, thus, disposed:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued commanding the respondents to permanently
desist from enforcing or implementing Ordinance No. 192, Series of 1994, as amended, on petitioners property in question
located at Marikina Heights, Marikina, Metro Manila.

No pronouncement as to costs.
SO ORDERED.16

Ruling of the CA

In its December 1, 2003 Decision, the CA dismissed the petitioners appeal and affirmed the RTC decision.

The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify the exercise of police power, as it did not
only seek to regulate, but also involved the taking of the respondents property without due process of law. The respondents
were bound to lose an unquantifiable sense of security, the beneficial use of their structures, and a total of 3,762.36 square
meters of property. It, thus, ruled that the assailed ordinance could not be upheld as valid as it clearly invaded the personal and
property rights of the respondents and "[f]or being unreasonable, and undue restraint of trade."17

It noted that although the petitioners complied with procedural due process in enacting Ordinance No. 192, they failed to
comply with substantive due process. Hence, the failure of the respondents to attend the public hearings in order to raise
objections did not amount to a waiver of their right to question the validity of the ordinance.

The CA also shot down the argument that the five-meter setback provision for parking was a legal easement, the use and
ownership of which would remain with, and inure to, the benefit of the respondents for whom the easement was primarily
intended. It found that the real intent of the setback provision was to make the parking space free for use by the public,
considering that such would cease to be for the exclusive use of the school and its students as it would be situated outside
school premises and beyond the school administrations control.

In affirming the RTC ruling that the ordinance was not a curative statute, the CA found that the petitioner failed to point out any
irregularity or invalidity in the provisions of the National Building Code that required correction or cure. It noted that any
correction in the Code should be properly undertaken by the Congress and not by the City Council of Marikina through an
ordinance.

The CA, thus, disposed:

WHEREFORE, all foregoing premises considered, the instant appeal is DENIED.1wphi1 The October 2, 2002 Decision and
the January 13, 2003 Order of the Regional Trial Court (RTC) of Marikina City, Branch 273, granting petitioners-appellees
petition for Prohibition in SCA Case No. 2000-381-MK are hereby AFFIRMED.

SO ORDERED.18

Aggrieved by the decision of the CA, the petitioners are now before this Court presenting the following

ASSIGNMENT OF ERRORS

1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT CITY ORDINANCE
NO. 192, SERIES OF 1994 IS NOT A VALID EXERCISE OF POLICE POWER;

2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE
AFOREMENTIONED ORDINANCE IS AN EXERCISE OF THE CITY OF THE POWER OF EMINENT DOMAIN;

3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE CITY
VIOLATED THE DUE PROCESS CLAUSE IN IMPLEMENTING ORDINANCE NO. 192, SERIES OF 1994; AND

4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE ABOVE-
MENTIONED ORDINANCE CANNOT BE GIVEN RETROACTIVE APPLICATION. 19

In this case, the petitioners admit that Section 5 of the assailed ordinance, pertaining to the five-meter setback requirement is,
as held by the lower courts, invalid.20 Nonetheless, the petitioners argue that such invalidity was subsequently cured by Zoning
Ordinance No. 303, series of 2000. They also contend that Section 3, relating to the 80% see-thru fence requirement, must be
complied with, as it remains to be valid.
Ruling of the Court

The ultimate question before the Court is whether Sections 3.1 and 5 of Ordinance No. 192 are valid exercises of police power
by the City Government of Marikina.

"Police power is the plenary power vested in the legislature to make statutes and ordinances to promote the health, morals,
peace, education, good order or safety and general welfare of the people."21 The State, through the legislature, has delegated
the exercise of police power to local government units, as agencies of the State. This delegation of police power is embodied in
Section 1622 of the Local Government Code of 1991 (R.A. No. 7160), known as the General Welfare Clause,23 which has two
branches. "The first, known as the general legislative power, authorizes the municipal council to enact ordinances and make
regulations not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon
the municipal council by law. The second, known as the police power proper, authorizes the municipality to enact ordinances as
may be necessary and proper for the health and safety, prosperity, morals, peace, good order, comfort, and convenience of the
municipality and its inhabitants, and for the protection of their property."24

White Light Corporation v. City of Manila,25 discusses the test of a valid ordinance:

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance
to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the

Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit
but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.26

Ordinance No. 192 was passed by the City Council of Marikina in the apparent exercise of its police power. To successfully
invoke the exercise of police power as the rationale for the enactment of an ordinance and to free it from the imputation of
constitutional infirmity, two tests have been used by the Court the rational relationship test and the strict scrutiny test:

We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. Using the rational
basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Under
intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is
considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.27

Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series of 1994 must be struck down for not
being reasonably necessary to accomplish the Citys purpose. More importantly, it is oppressive of private rights.

Under the rational relationship test, an ordinance must pass the following requisites as discussed in Social Justice Society
(SJS) v. Atienza, Jr.:28

As with the State, local governments may be considered as having properly exercised their police power only if the following
requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise
and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful subject and lawful method.29

Lacking a concurrence of these two requisites, the police power measure shall be struck down as an arbitrary intrusion into
private rights and a violation of the due process clause.30

Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:

Section 3. The standard height of fences of walls allowed under this ordinance are as follows:

(1) Fences on the front yard shall be no more than one (1) meter in height. Fences in excess of one (1) meter shall be an
open fence type, at least eighty percent (80%) see-thru;
xxx xxx xxx

Section 5. In no case shall walls and fences be built within the five (5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial establishments and educational and religious institutions.

The respondents, thus, sought to prohibit the petitioners from requiring them to (1) demolish their existing concrete wall, (2)
build a fence (in excess of one meter) which must be 80% see-thru, and (3) build the said fence six meters back in order to
provide a parking area.

Setback Requirement

The Court first turns its attention to Section 5 which requires the five-meter setback of the fence to provide for a parking area.
The petitioners initially argued that the ownership of the parking area to be created would remain with the respondents as it
would primarily be for the use of its students and faculty, and that its use by the public on non-school days would only be
incidental. In their Reply, however, the petitioners admitted that Section 5 was, in fact, invalid for being repugnant to the
Constitution.31

The Court agrees with the latter position.

The Court joins the CA in finding that the real intent of the setback requirement was to make the parking space free for use by
the public, considering that it would no longer be for the exclusive use of the respondents as it would also be available for use
by the general public. Section 9 of Article III of the 1987 Constitution, a provision on eminent domain, provides that private
property shall not be taken for public use without just compensation.

The petitioners cannot justify the setback by arguing that the ownership of the property will continue to remain with the
respondents. It is a settled rule that neither the acquisition of title nor the total destruction of value is essential to taking. In fact,
it is usually in cases where the title remains with the private owner that inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to a compensable taking.32 The Court is of the view that the
implementation of the setback requirement would be tantamount to a taking of a total of 3,762.36 square meters of the
respondents private property for public use without just compensation, in contravention to the Constitution.

Anent the objectives of prevention of concealment of unlawful acts and "un-neighborliness," it is obvious that providing for a
parking area has no logical connection to, and is not reasonably necessary for, the accomplishment of these goals.

Regarding the beautification purpose of the setback requirement, it has long been settled that the State may not, under the
guise of police power, permanently divest owners of the beneficial use of their property solely to preserve or enhance the
aesthetic appearance of the community.33 The Court, thus, finds Section 5 to be unreasonable and oppressive as it will
substantially divest the respondents of the beneficial use of their property solely for aesthetic purposes. Accordingly, Section 5
of Ordinance No. 192 is invalid.

The petitioners, however, argue that the invalidity of Section 5 was properly cured by Zoning Ordinance No. 303,34Series of
2000, which classified the respondents property to be within an institutional zone, under which a five-meter setback has been
required.

The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to the case at hand.

The Court notes with displeasure that this argument was only raised for the first time on appeal in this Court in the petitioners
Reply. Considering that Ordinance No. 303 was enacted on December 20, 2000, the petitioners could very well have raised it in
their defense before the RTC in 2002. The settled rule in this jurisdiction is that a party cannot change the legal theory of this
case under which the controversy was heard and decided in the trial court. It should be the same theory under which the review
on appeal is conducted. Points of law, theories, issues, and arguments not adequately brought to the attention of the lower
court will not be ordinarily considered by a reviewing court, inasmuch as they cannot be raised for the first time on appeal. This
will be offensive to the basic rules of fair play, justice, and due process.35
Furthermore, the two ordinances have completely different purposes and subjects. Ordinance No. 192 aims to regulate the
construction of fences, while Ordinance No. 303 is a zoning ordinance which classifies the city into specific land uses. In fact,
the five-meter setback required by Ordinance No. 303 does not even appear to be for the purpose of providing a parking area.

By no stretch of the imagination, therefore, can Ordinance No. 303, "cure" Section 5 of Ordinance No. 192.

In any case, the clear subject of the petition for prohibition filed by the respondents is Ordinance No. 192 and, as such, the
precise issue to be determined is whether the petitioners can be prohibited from enforcing the said ordinance, and no other,
against the respondents.

80% See-Thru Fence Requirement

The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid, Section 3.1 limiting the height of fences to one
meter and requiring fences in excess of one meter to be at least 80% see-thru, should remain valid and enforceable against the
respondents.

The Court cannot accommodate the petitioner.

For Section 3.1 to pass the rational relationship test, the petitioners must show the reasonable relation between the purpose of
the police power measure and the means employed for its accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.36

The principal purpose of Section 3.1 is "to discourage, suppress or prevent the concealment of prohibited or unlawful acts." The
ultimate goal of this objective is clearly the prevention of crime to ensure public safety and security. The means employed by
the petitioners, however, is not reasonably necessary for the accomplishment of this purpose and is unduly oppressive to
private rights. The petitioners have not adequately shown, and it does not appear obvious to this Court, that an 80% see-thru
fence would provide better protection and a higher level of security, or serve as a more satisfactory criminal deterrent, than a tall
solid concrete wall. It may even be argued that such exposed premises could entice and tempt would-be criminals to the
property, and that a see-thru fence would be easier to bypass and breach. It also appears that the respondents concrete wall
has served as more than sufficient protection over the last 40 years. `

As to the beautification purpose of the assailed ordinance, as previously discussed, the State may not, under the guise of police
power, infringe on private rights solely for the sake of the aesthetic appearance of the community. Similarly, the Court cannot
perceive how a see-thru fence will foster "neighborliness" between members of a community.

Compelling the respondents to construct their fence in accordance with the assailed ordinance is, thus, a clear encroachment
on their right to property, which necessarily includes their right to decide how best to protect their property.

It also appears that requiring the exposure of their property via a see-thru fence is violative of their right to privacy, considering
that the residence of the Benedictine nuns is also located within the property. The right to privacy has long been considered a
fundamental right guaranteed by the Constitution that must be protected from intrusion or constraint. The right to privacy is
essentially the right to be let alone,37 as governmental powers should stop short of certain intrusions into the personal life of its
citizens.38 It is inherent in the concept of liberty, enshrined in the Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17,
Article III of the 1987 Constitution.39

The enforcement of Section 3.1 would, therefore, result in an undue interference with the respondents rights to property and
privacy. Section 3.1 of Ordinance No. 192 is, thus, also invalid and cannot be enforced against the respondents.

No Retroactivity

Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including the regulation of educational institutions which was
unintentionally omitted, and giving said educational institutions five (5) years from the passage of Ordinance No. 192 (and not
Ordinance No. 217) to conform to its provisions.40 The petitioners argued that the amendment could be retroactively applied
because the assailed ordinance is a curative statute which is retroactive in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be enforced against the respondents, it is no longer
necessary to rule on the issue of retroactivity. The Court shall, nevertheless, pass upon the issue for the sake of clarity.

"Curative statutes are enacted to cure defects in a prior law or to validate legal proceedings which would otherwise be void for
want of conformity with certain legal requirements. They are intended to supply defects, abridge superfluities and curb certain
evils. They are intended to enable persons to carry into effect that which they have designed or intended, but has failed of
expected legal consequence by reason of some statutory disability or irregularity in their own action. They make valid that
which, before the enactment of the statute was invalid. Their purpose is to give validity to acts done that would have been
invalid under existing laws, as if existing laws have been complied with. Curative statutes, therefore, by their very essence, are
retroactive."41

The petitioners argue that Ordinance No. 192 is a curative statute as it aims to correct or cure a defect in the National Building
Code, namely, its failure to provide for adequate guidelines for the construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the petitioners attempt to add lacking provisions to the National
Building Code. This is not what is contemplated by curative statutes, which intend to correct irregularities or invalidity in the law.
The petitioners fail to point out any irregular or invalid provision. As such, the assailed ordinance cannot qualify as curative and
retroactive in nature.

At any rate, there appears to be no insufficiency in the National Building Code with respect to parking provisions in relation to
the issue of the respondents. Paragraph 1.16.1, Rule XIX of the Rules and Regulations of the said code requires an
educational institution to provide one parking slot for every ten classrooms. As found by the lower courts, the respondents
provide a total of 76 parking slots for their 80 classrooms and, thus, had more than sufficiently complied with the law.

Ordinance No. 192, as amended, is, therefore, not a curative statute which may be applied retroactively.

Separability

Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and cannot be enforced against the respondents.
Nonetheless, "the general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid,
the valid portion, if susceptible to being separated from the invalid, may stand and be enforced."42 Thus, the other sections of
the assailed ordinance remain valid and enforceable.

Conclusion

Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners were acting in excess of their jurisdiction in
enforcing Ordinance No. 192 against the respondents. The CA was correct in affirming the decision of the RTC in issuing the
writ of prohibition. The petitioners must permanently desist from enforcing Sections 3.1 and 5 of the assailed ordinance on the
respondents' property in Marikina City.

WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the Regional Trial Court in SCA Case No. 2000-381-
MK is AFFIRMED but MODIFIED to read as follows:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued commanding the respondents to permanently
desist from enforcing or implementing Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as amended, on the
petitioners' property in question located in Marikina Heights, Marikina, Metro Manila.

No pronouncement as to costs.

SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice
SECOND DIVISION

G.R. No. 184203, November 26, 2014

CITY OF LAPU-LAPU, Petitioner, v. PHILIPPINE ECONOMIC ZONE AUTHORITY, Respondent.

G.R. NO. 187583

PROVINCE OF BATAAN, REPRESENTED BY GOVERNOR ENRIQUE T. GARCIA, JR., AND EMERLINDA S. TALENTO, IN
HER CAPACITY AS PROVINCIAL TREASURER OF BATAAN, Petitioners, v. PHILIPPINE ECONOMIC ZONE
AUTHORITY, Respondent.

DECISION

LEONEN, J.:

The Philippine Economic Zone Authority is exempt from payment of real property taxes.

These are consolidated1 petitions for review on certiorari the City of Lapu-Lapu and the Province of Bataan separately filed
against the Philippine Economic Zone Authority (PEZA).

In G.R. No. 184203, the City of Lapu-Lapu (the City) assails the Court of Appeals decision2 dated January 11, 2008 and
resolution3 dated August 6, 2008, dismissing the Citys appeal for being the wrong mode of appeal. The City appealed the
Regional Trial Court, Branch 111, Pasay Citys decision finding the PEZA exempt from payment of real property taxes.

In G.R. No. 187583, the Province of Bataan (the Province) assails the Court of Appeals decision4 dated August 27, 2008 and
resolution5 dated April 16, 2009, granting the PEZAs petition for certiorari. The Court of Appeals ruled that the Regional Trial
Court, Branch 115, Pasay City gravely abused its discretion in finding the PEZA liable for real property taxes to the Province of
Bataan.

Facts common to the consolidated petitions

In the exercise of his legislative powers,6 President Ferdinand E. Marcos issued Presidential Decree No. 66 in 1972, declaring
as government policy the establishment of export processing zones in strategic locations in the Philippines. Presidential
Decree No. 66 aimed to encourage and promote foreign commerce as a means of making the Philippines a center of
international trade, of strengthening our export trade and foreign exchange position, of hastening industrialization, of reducing
domestic unemployment, and of accelerating the development of the country.7chanRoblesvirtualLawlibrary

To carry out this policy, the Export Processing Zone Authority (EPZA) was created to operate, administer, and manage the
export processing zones established in the Port of Mariveles, Bataan8 and such other export processing zones that may be
created by virtue of the decree.9chanRoblesvirtualLawlibrary

The decree declared the EPZA non-profit in character10 with all its revenues devoted to its development, improvement, and
maintenance.11 To maintain this non-profit character, the EPZA was declared exempt from all taxes that may be due to the
Republic of the Philippines, its provinces, cities, municipalities, and other government agencies and instrumentalities.12
Specifically, Section 21 of Presidential Decree No. 66 declared the EPZA exempt from payment of real property
taxes:chanroblesvirtuallawlibrary

Section 21. Non-profit Character of the Authority; Exemption from Taxes. The Authority shall be non-profit and shall devote and
use all its returns from its capital investment, as well as excess revenues from its operations, for the development, improvement
and maintenance and other related expenditures of the Authority to pay its indebtedness and obligations and in furtherance and
effective implementation of the policy enunciated in Section 1 of this Decree. In consonance therewith, the Authority is hereby
declared exempt:ChanRoblesVirtualawlibrary
....
(b) From all income taxes, franchise taxes, realty taxes and all other kinds of taxes and licenses to be paid to the National
Government, its provinces, cities, municipalities and other government agencies and instrumentalities[.]

In 1979, President Marcos issued Proclamation No. 1811, establishing the Mactan Export Processing Zone. Certain parcels of
land of the public domain located in the City of Lapu-Lapu in Mactan, Cebu were reserved to serve as site of the Mactan Export
Processing Zone.

In 1995, the PEZA was created by virtue of Republic Act No. 7916 or the Special Economic Zone Act of 199513 to operate,
administer, manage, and develop economic zones in the country.14 The PEZA was granted the power to register, regulate, and
supervise the enterprises located in the economic zones.15 By virtue of the law, the export processing zone in Mariveles,
Bataan became the Bataan Economic Zone16 and the Mactan Export Processing Zone the Mactan Economic
Zone.17chanRoblesvirtualLawlibrary

As for the EPZA, the law required it to evolve into the PEZA in accordance with the guidelines and regulations set forth in an
executive order issued for [the] purpose.18chanRoblesvirtualLawlibrary

On October 30, 1995, President Fidel V. Ramos issued Executive Order No. 282, directing the PEZA to assume and exercise
all of the EPZAs powers, functions, and responsibilities as provided in Presidential Decree No. 66, as amended, insofar as
they are not inconsistent with the powers, functions, and responsibilities of the PEZA, as mandated under [the Special
Economic Zone Act of 1995].19 All of EPZAs properties, equipment, and assets, among others, were ordered transferred to the
PEZA.20chanRoblesvirtualLawlibrary

Facts of G.R. No. 184203

In the letter21 dated March 25, 1998, the City of Lapu-Lapu, through the Office of the Treasurer, demanded from the PEZA ?
32,912,350.08 in real property taxes for the period from 1992 to 1998 on the PEZAs properties located in the Mactan Economic
Zone.

The City reiterated its demand in the letter22 dated May 21, 1998. It cited Sections 193 and 234 of the Local Government Code
of 1991 that withdrew the real property tax exemptions previously granted to or presently enjoyed by all persons. The City
pointed out that no provision in the Special Economic Zone Act of 1995 specifically exempted the PEZA from payment of real
property taxes, unlike Section 21 of Presidential Decree No. 66 that explicitly provided for EPZAs exemption. Since no legal
provision explicitly exempted the PEZA from payment of real property taxes, the City argued that it can tax the PEZA.

The City made subsequent demands23 on the PEZA. In its last reminder24 dated May 13, 2002, the City assessed the PEZA ?
86,843,503.48 as real property taxes for the period from 1992 to 2002.

On September 11, 2002, the PEZA filed a petition for declaratory relief25 with the Regional Trial Court of Pasay City, praying that
the trial court declare it exempt from payment of real property taxes. The case was raffled to Branch 111.

The City answered26 the petition, maintaining that the PEZA is liable for real property taxes. To support its argument, the City
cited a legal opinion dated September 6, 1999 issued by the Department of Justice,27 which stated that the PEZA is not exempt
from payment of real property taxes. The Department of Justice based its opinion on Sections 193 and 234 of the Local
Government Code that withdrew the tax exemptions, including real property tax exemptions, previously granted to all persons.

A reply28 was filed by the PEZA to which the City filed a rejoinder.29chanRoblesvirtualLawlibrary

Pursuant to Rule 63, Section 3 of Rules of Court,30 the Office of the Solicitor General filed a comment31on the PEZAs petition
for declaratory relief. It agreed that the PEZA is exempt from payment of real property taxes, citing Sections 24 and 51 of the
Special Economic Zone Act of 1995.

The trial court agreed with the Solicitor General. Section 24 of the Special Economic Zone Act of 1995
provides:chanroblesvirtuallawlibrary

SEC. 24. Exemption from National and Local Taxes. Except for real property taxes on land owned by developers, no taxes,
local and national, shall be imposed on business establishments operating within the ECOZONE. In lieu thereof, five percent
(5%) of the gross income earned by all business enterprises within the ECOZONE shall be paid and remitted as follows:
a. Three percent (3%) to the National Government;

b. Two percent (2%) which shall be directly remitted by the business establishments to the treasurers office of the municipality
or city where the enterprise is located.

Section 51 of the law, on the other hand, provides:chanroblesvirtuallawlibrary

SEC. 51. Ipso-Facto Clause. All privileges, benefits, advantages or exemptions granted to special economic zones under
Republic Act No. 7227, shall ipso-facto be accorded to special economic zones already created or to be created under this Act.
The free port status shall not be vested upon new special economic zones.

Based on Section 51, the trial court held that all privileges, benefits, advantages, or exemptions granted to special economic
zones created under the Bases Conversion and Development Act of 1992 apply to special economic zones created under the
Special Economic Zone Act of 1995. Since these benefits include exemption from payment of national or local taxes, these
benefits apply to special economic zones owned by the PEZA.

According to the trial court, the PEZA remained tax-exempt regardless of Section 24 of the Special Economic Zone Act of
1995. It ruled that Section 24, which taxes real property owned by developers of economic zones, only applies to private
developers of economic zones, not to public developers like the PEZA. The PEZA, therefore, is not liable for real property
taxes on the land it owns.

Characterizing the PEZA as an agency of the National Government, the trial court ruled that the City had no authority to tax the
PEZA under Sections 133(o) and 234(a) of the Local Government Code of 1991.

In the resolution32 dated June 14, 2006, the trial court granted the PEZAs petition for declaratory relief and declared it exempt
from payment of real property taxes.

The City filed a motion for reconsideration,33 which the trial court denied in its resolution34 dated September 26, 2006.

The City then appealed35 to the Court of Appeals.

The Court of Appeals noted the following issues the City raised in its appellants brief: (1) whether the trial court had jurisdiction
over the PEZAs petition for declaratory relief; (2) whether the PEZA is a government agency performing governmental
functions; and (3) whether the PEZA is exempt from payment of real property taxes.

The issues presented by the City, according to the Court of Appeals, are pure questions of law which should have been raised
in a petition for review on certiorari directly filed before this court. Since the City availed itself of the wrong mode of appeal, the
Court of Appeals dismissed the Citys appeal in the decision36 dated January 11, 2008.

The City filed a motion for extension of time to file a motion for reconsideration,37 which the Court of Appeals denied in the
resolution38 dated April 11, 2008.

Despite the denial of its motion for extension, the City filed a motion for reconsideration.39 In the resolution40 dated August 6,
2008, the Court of Appeals denied that motion.

In its petition for review on certiorari with this court,41 the City argues that the Court of Appeals hid under the skirts of technical
rules42 in resolving its appeal. The City maintains that its appeal involved mixed questions of fact and law. According to the
City, whether the PEZA performed governmental functions cannot completely be addressed by law but [by] the factual and
actual activities [the PEZA is] carrying out.43chanRoblesvirtualLawlibrary

Even assuming that the petition involves pure questions of law, the City contends that the subject matter of the case is of
extreme importance with [far-reaching] consequence that [its magnitude] would surely shape and determine the course of our
nations future.44 The Court of Appeals, the City argues, should have resolved the case on the merits.

The City insists that the trial court had no jurisdiction to hear the PEZAs petition for declaratory relief. According to the City, the
case involves real property located in the City of Lapu-Lapu. The petition for declaratory relief should have been filed before
the Regional Trial Court of the City of Lapu-Lapu.45chanRoblesvirtualLawlibrary

Moreover, the Province of Bataan, the City of Baguio, and the Province of Cavite allegedly demanded real property taxes from
the PEZA. The City argues that the PEZA should have likewise impleaded these local government units as respondents in its
petition for declaratory relief. For its failure to do so, the PEZA violated Rule 63, Section 2 of the Rules of Court, and the trial
court should have dismissed the petition.46chanRoblesvirtualLawlibrary

This court ordered the PEZA to comment on the Citys petition for review on certiorari.47chanRoblesvirtualLawlibrary

At the outset of its comment, the PEZA argues that the Court of Appeals decision dated January 11, 2008 had become final
and executory. After the Court of Appeals had denied the Citys appeal, the City filed a motion for extension of time to file a
motion for reconsideration. Arguing that the time to file a motion for reconsideration is not extendible, the PEZA filed its motion
for reconsideration out of time. The City has no more right to appeal to this court.48chanRoblesvirtualLawlibrary

The PEZA maintains that the City availed itself of the wrong mode of appeal before the Court of Appeals. Since the City raised
pure questions of law in its appeal, the PEZA argues that the proper remedy is a petition for review on certiorari with this court,
not an ordinary appeal before the appellate court. The Court of Appeals, therefore, correctly dismissed outright the Citys
appeal under Rule 50, Section 2 of the Rules of Court.49chanRoblesvirtualLawlibrary

On the merits, the PEZA argues that it is an agency and instrumentality of the National Government. It is therefore exempt from
payment of real property taxes under Sections 133(o) and 234(a) of the Local Government Code.50 It adds that the tax
privileges under Sections 24 and 51 of the Special Economic Zone Act of 1995 applied to it.51chanRoblesvirtualLawlibrary

Considering that the site of the Mactan Economic Zone is a reserved land under Proclamation No. 1811, the PEZA claims that
the properties sought to be taxed are lands of public dominion exempt from real property taxes.52chanRoblesvirtualLawlibrary

As to the jurisdiction issue, the PEZA counters that the Regional Trial Court of Pasay had jurisdiction to hear its petition for
declaratory relief under Rule 63, Section 1 of the Rules of Court.53 It also argued that it need not implead the Province of
Bataan, the City of Baguio, and the Province of Cavite as respondents considering that their demands came after the PEZA had
already filed the petition in court.54chanRoblesvirtualLawlibrary

Facts of G.R. No. 187583

After the City of Lapu-Lapu had demanded payment of real property taxes from the PEZA, the Province of Bataan followed
suit. In its letter55 dated May 29, 2003, the Province, through the Office of the Provincial Treasurer, informed the PEZA that it
would be sending a real property tax billing to the PEZA. Arguing that the PEZA is a developer of economic zones, the
Province claimed that the PEZA is liable for real property taxes under Section 24 of the Special Economic Zone Act of 1995.

In its reply letter56 dated June 18, 2003, the PEZA requested the Province to suspend the service of the real property tax billing.
It cited its petition for declaratory relief against the City of Lapu-Lapu pending before the Regional Trial Court, Branch 111,
Pasay City as basis.

The Province argued that serving a real property tax billing on the PEZA would not in any way affect [its] petition for declaratory
relief before [the Regional Trial Court] of Pasay City.57 Thus, in its letter58dated June 27, 2003, the Province notified the PEZA
of its real property tax liabilities for June 1, 1995 to December 31, 2002 totalling ?110,549,032.55.

After having been served a tax billing, the PEZA again requested the Province to suspend collecting its alleged real property tax
liabilities until the Regional Trial Court of Pasay City resolves its petition for declaratory relief.59chanRoblesvirtualLawlibrary

The Province ignored the PEZAs request. On January 20, 2004, the Province served on the PEZA a statement of unpaid real
property tax for the period from June 1995 to December 2004.60chanRoblesvirtualLawlibrary

The PEZA again requested the Province to suspend collecting its alleged real property taxes.61 The Province denied the
request in its letter62 dated January 29, 2004, then served on the PEZA a warrant of levy63 covering the PEZAs real properties
located in Mariveles, Bataan.

The PEZAs subsequent requests64 for suspension of collection were all denied by the Province.65 The Province then served on
the PEZA a notice of delinquency in the payment of real property taxes66 and a notice of sale of real property for unpaid real
property tax.67 The Province finally sent the PEZA a notice of public auction of the latters properties in Mariveles,
Bataan.68chanRoblesvirtualLawlibrary

On June 14, 2004, the PEZA filed a petition for injunction69 with prayer for issuance of a temporary restraining order and/or writ
of preliminary injunction before the Regional Trial Court of Pasay City, arguing that it is exempt from payment of real property
taxes. It added that the notice of sale issued by the Province was void because it was not published in a newspaper of general
circulation as required by Section 260 of the Local Government Code.70chanRoblesvirtualLawlibrary

The case was raffled to Branch 115.

In its order71 dated June 18, 2004, the trial court issued a temporary restraining order against the Province. After the PEZA had
filed a P100,000.00 bond,72 the trial court issued a writ of preliminary injunction,73 enjoining the Province from selling the PEZAs
real properties at public auction.

On March 3, 2006, the PEZA and Province both manifested that each would file a memorandum after which the case would be
deemed submitted for decision. The parties then filed their respective memoranda.74chanRoblesvirtualLawlibrary

In the order75 dated January 31, 2007, the trial court denied the PEZAs petition for injunction. The trial court ruled that the PEZA
is not exempt from payment of real property taxes. According to the trial court, Sections 193 and 234 of the Local Government
Code had withdrawn the real property tax exemptions previously granted to all persons, whether natural or juridical.76 As to the
tax exemptions under Section 51 of the Special Economic Zone Act of 1995, the trial court ruled that the provision only applies
to businesses operating within the economic zones, not to the PEZA.77chanRoblesvirtualLawlibrary

The PEZA filed before the Court of Appeals a petition for certiorari78 with prayer for issuance of a temporary restraining order.

The Court of Appeals issued a temporary restraining order, enjoining the Province and its Provincial Treasurer from selling
PEZA's properties at public auction scheduled on October 17, 2007.79 It also ordered the Province to comment on the PEZAs
petition.

In its comment,80 the Province alleged that it received a copy of the temporary restraining order only on October 18, 2007 when
it had already sold the PEZAs properties at public auction. Arguing that the act sought to be enjoined was already fait
accompli, the Province prayed for the dismissal of the petition for certiorari.

The PEZA then filed a supplemental petition for certiorari, prohibition, and mandamus81 against the Province, arguing that the
Provincial Treasurer of Bataan acted with grave abuse of discretion in issuing the notice of delinquency and notice of sale. It
maintained that it is exempt from payment of real property taxes because it is a government instrumentality. It added that its
lands are property of public dominion which cannot be sold at public auction.

The PEZA also filed a motion82 for issuance of an order affirming the temporary restraining order and a writ of preliminary
injunction to enjoin the Province from consolidating title over the PEZAs properties.

In its resolution83 dated January 16, 2008, the Court of Appeals admitted the supplemental petition for certiorari, prohibition, and
mandamus. It required the Province to comment on the supplemental petition and to file a memorandum on the PEZAs prayer
for issuance of temporary restraining order.

The Province commented84 on the PEZAs supplemental petition, to which the PEZA replied.85chanRoblesvirtualLawlibrary

The Province then filed a motion86 for leave to admit attached rejoinder with motion to dismiss. In the rejoinder with motion to
dismiss,87 the Province argued for the first time that the Court of Appeals had no jurisdiction over the subject matter of the
action.

According to the Province, the PEZA erred in filing a petition for certiorari. Arguing that the PEZA sought to reverse a Regional
Trial Court decision in a local tax case, the Province claimed that the court with appellate jurisdiction over the action is the Court
of Tax Appeals. The PEZA then prayed that the Court of Appeals dismiss the petition for certiorari for lack of jurisdiction over
the subject matter of the action.
The Court of Appeals held that the issue before it was whether the trial court judge gravely abused his discretion in dismissing
the PEZAs petition for prohibition. This issue, according to the Court of Appeals, is properly addressed in a petition for
certiorari over which it has jurisdiction to resolve. It, therefore, maintained jurisdiction to resolve the PEZAs petition for
certiorari.88chanRoblesvirtualLawlibrary

Although it admitted that appeal, not certiorari, was the PEZAs proper remedy to reverse the trial courts decision,89 the Court of
Appeals proceeded to decide the petition for certiorari in the broader interest of justice.90chanRoblesvirtualLawlibrary

The Court of Appeals ruled that the trial court judge gravely abused his discretion in dismissing the PEZAs petition for
prohibition. It held that Section 21 of Presidential Decree No. 66 and Section 51 of the Special Economic Zone Act of 1995
granted the PEZA exemption from payment of real property taxes.91 Based on the criteria set in Manila International Airport
Authority v. Court of Appeals,92 the Court of Appeals found that the PEZA is an instrumentality of the national government. No
taxes, therefore, could be levied on it by local government units.93chanRoblesvirtualLawlibrary

In the decision94 dated August 27, 2008, the Court of Appeals granted the PEZAs petition for certiorari. It set aside the trial
courts decision and nullified all the Provinces proceedings with respect to the collection of real property taxes from the PEZA.

The Province filed a motion for reconsideration,95 which the Court of Appeals denied in the resolution96dated April 16, 2009 for
lack of merit.

In its petition for review on certiorari with this court,97 the Province of Bataan insists that the Court of Appeals had no jurisdiction
to take cognizance of the PEZAs petition for certiorari. The Province maintains that the Court of Tax Appeals had jurisdiction to
hear the PEZAs petition since it involved a local tax case decided by a Regional Trial Court.98chanRoblesvirtualLawlibrary

The Province reiterates that the PEZA is not exempt from payment of real property taxes. The Province points out that the
EPZA, the PEZAs predecessor, had to be categorically exempted from payment of real property taxes. The EPZA, therefore,
was not inherently exempt from payment of real property taxes and so is the PEZA. Since Congress omitted from the Special
Economic Zone Act of 1995 a provision specifically exempting the PEZA from payment of real property taxes, the Province
argues that the PEZA is a taxable entity. It cited the rule in statutory construction that provisions omitted in revised statutes are
deemed repealed.99chanRoblesvirtualLawlibrary

With respect to Sections 24 and 51 of the Special Economic Zone Act of 1995 granting tax exemptions and benefits, the
Province argues that these provisions only apply to business establishments operating within special economic zones,100 not to
the PEZA.

This court ordered the PEZA to comment on the Provinces petition for review on certiorari.101chanRoblesvirtualLawlibrary

In its comment,102 the PEZA argues that the Court of Appeals had jurisdiction to hear its petition for certiorari since the issue
was whether the trial court committed grave abuse of discretion in denying its petition for injunction. The PEZA maintains that it
is exempt from payment of real property taxes under Section 21 of Presidential Decree No. 66 and Section 51 of the Special
Economic Zone Act of 1995.

The Province filed its reply,103 reiterating its arguments in its petition for review on certiorari.

On the PEZAs motion,104 this court consolidated the petitions filed by the City of Lapu-Lapu and the Province of
Bataan.105chanRoblesvirtualLawlibrary

The issues for our resolution are the following:

I. Whether the Court of Appeals erred in dismissing the City of Lapu-Lapus appeal for raising pure questions of law;

II. Whether the Regional Trial Court, Branch 111, Pasay City had jurisdiction to hear, try, and decide the City of Lapu-Lapus
petition for declaratory relief;

III. Whether the petition for injunction filed before the Regional Trial Court, Branch 115, Pasay City, is a local tax case
appealable to the Court of Tax Appeals; and
IV. Whether the PEZA is exempt from payment of real property taxes.

We deny the consolidated petitions.

I.

The Court of Appeals did not err in


dismissing the City of Lapu-Lapus
appeal for raising pure questions of law

Under the Rules of Court, there are three modes of appeal from Regional Trial Court decisions. The first mode is through an
ordinary appeal before the Court of Appeals where the decision assailed was rendered in the exercise of the Regional Trial
Courts original jurisdiction. Ordinary appeals are governed by Rule 41, Sections 3 to 13 of the Rules of Court. In ordinary
appeals, questions of fact or mixed questions of fact and law may be raised.106chanRoblesvirtualLawlibrary

The second mode is through a petition for review before the Court of Appeals where the decision assailed was rendered by the
Regional Trial Court in the exercise of its appellate jurisdiction. Rule 42 of the Rules of Court governs petitions for review
before the Court of Appeals. In petitions for review under Rule 42, questions of fact, of law, or mixed questions of fact and law
may be raised.107chanRoblesvirtualLawlibrary

The third mode is through an appeal by certiorari before this court under Rule 45 where only questions of law shall be
raised.108chanRoblesvirtualLawlibrary

A question of fact exists when there is doubt as to the truth or falsity of the alleged facts.109 On the other hand, there is a
question of law if the appeal raises doubt as to the applicable law on a certain set of facts.110chanRoblesvirtualLawlibrary

Under Rule 50, Section 2, an improper appeal before the Court of Appeals is dismissed outright and shall not be referred to the
proper court:chanroblesvirtuallawlibrary

SEC. 2. Dismissal of improper appeal to the Court of Appeals. An appeal under Rule 41 taken from the Regional Trial Court to
the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court.
Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court
shall be dismissed.

An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed
outright.

Rule 50, Section 2 repealed Rule 50, Section 3 of the 1964 Rules of Court, which provided that improper appeals to the Court
of Appeals shall not be dismissed but shall be certified to the proper court for resolution:chanroblesvirtuallawlibrary

Sec. 3. Where appealed case erroneously, brought. Where the appealed case has been erroneously brought to the Court of
Appeals, it shall not dismiss the appeal, but shall certify the case to the proper court, with a specific and clear statement of the
grounds therefor.

With respect to appeals by certiorari directly filed before this court but which raise questions of fact, paragraph 4(b) of Circular
No. 2-90 dated March 9, 1990 states that this court retains the option, in the exercise of its sound discretion and considering
the attendant circumstances, either itself to take cognizance of and decide such issues or to refer them to the Court of Appeals
for determination.

In Indoyon, Jr. v. Court of Appeals,111 we said that this court cannot tolerate ignorance of the law on appeals.112 It is not this
courts task to determine for litigants their proper remedies under the Rules.113chanRoblesvirtualLawlibrary

We agree that the City availed itself of the wrong mode of appeal before the Court of Appeals. The City raised pure questions of
law in its appeal. The issue of whether the Regional Trial Court of Pasay had jurisdiction over the PEZAs petition for
declaratory relief is a question of law, jurisdiction being a matter of law.114 The issue of whether the PEZA is a government
instrumentality exempt from payment of real property taxes is likewise a question of law since this question is resolved by
examining the provisions of the PEZAs charter as well as other laws relating to the PEZA.115chanRoblesvirtualLawlibrary

The Court of Appeals, therefore, did not err in dismissing the Citys appeal pursuant to Rule 50, Section 2 of the Rules of Court.

Nevertheless, considering the important questions involved in this case, we take cognizance of the Citys petition for review on
certiorari in the interest of justice.

In Municipality of Pateros v. The Honorable Court of Appeals,116 the Municipality of Pateros filed an appeal under Rule 42 before
the Court of Appeals, which the Court of Appeals denied outright for raising pure questions of law. This court agreed that the
Municipality of Pateros committed a procedural infraction117 and should have directly filed a petition for review on certiorari
before this court. Nevertheless, in the interest of justice and in order to write finis to [the] controversy,118 this court opt[ed] to
relax the rules119 and proceeded to decide the case. This court said:chanroblesvirtuallawlibrary

While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, and while the swift
unclogging of the dockets of the courts is a laudable objective, it nevertheless must not be met at the expense of substantial
justice.

The Court has allowed some meritorious cases to proceed despite inherent procedural defects and lapses. This is in keeping
with the principle that rules of procedure are mere tools designed to facilitate the attainment of justice, and that strict and rigid
application of rules which should result in technicalities that tend to frustrate rather than promote substantial justice must always
be avoided. It is a far better and more prudent cause of action for the court to excuse a technical lapse and afford the parties a
review of the case to attain the ends of justice, rather than dispose of the case on technicality and cause grave injustice to the
parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of
justice.120

Similar to Municipality of Pateros, we opt to relax the rules in this case. The PEZA operates or otherwise administers special
economic zones all over the country. Resolving the substantive issue of whether the PEZA is taxable for real property taxes will
clarify the taxing powers of all local government units where special economic zones are operated. This case, therefore, should
be decided on the merits.

II.

The Regional Trial Court of Pasay had


no jurisdiction to hear, try, and decide
the PEZAs petition for declaratory relief
against the City of Lapu-Lapu

Rule 63 of the Rules of Court governs actions for declaratory relief. Section 1 of Rule 63 provides:chanroblesvirtuallawlibrary

SECTION 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before
breach or violation, thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder.

An action for reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership
under Article 1607 of the Civil Code, may be brought under this Rule.

The court with jurisdiction over petitions for declaratory relief is the Regional Trial Court, the subject matter of litigation in an
action for declaratory relief being incapable of pecuniary estimation.121 Section 19 of the Judiciary Reorganization Act of 1980
provides:chanroblesvirtuallawlibrary

SEC. 19. Jurisdiction in Civil Cases. Regional Trial Courts shall exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of litigation is incapable of pecuniary estimation[.]

Consistent with the law, the Rules state that a petition for declaratory relief is filed in the appropriate Regional Trial Court.122
A special civil action for declaratory relief is filed for a judicial determination of any question of construction or validity arising
from, and for a declaration of rights and duties, under any of the following subject matters: a deed, will, contract or other written
instrument, statute, executive order or regulation, ordinance, or any other governmental regulation.123 However, a declaratory
judgment may issue only if there has been no breach of the documents in question.124 If the contract or statute subject matter
of the action has already been breached, the appropriate ordinary civil action must be filed.125 If adequate relief is available
through another form of action or proceeding, the other action must be preferred over an action for declaratory
relief.126chanRoblesvirtualLawlibrary

In Ollada v. Central Bank of the Philippines,127 the Central Bank issued CB-IED Form No. 5 requiring certified public
accountants to submit an accreditation under oath before they were allowed to certify financial statements submitted to the
bank. Among those financial statements the Central Bank disallowed were those certified by accountant Felipe B.
Ollada. 128chanRoblesvirtualLawlibrary

Claiming that the requirement restrained the legitimate pursuit of ones trade,129 Ollada filed a petition for declaratory relief
against the Central Bank.

This court ordered the dismissal of Olladas petition without prejudice to [his] seeking relief in another appropriate action.130
According to this court, Olladas right had already been violated when the Central Bank refused to accept the financial
statements he prepared. Since there was already a breach, a petition for declaratory relief was not proper. Ollada must pursue
the appropriate ordinary civil action or proceeding.131 This court explained:chanroblesvirtuallawlibrary

Petitioner commenced this action as, and clearly intended it to be one for Declaratory Relief under the provisions of Rule 66 of
the Rules of Court. On the question of when a special civil action of this nature would prosper, we have already held that the
complaint for declaratory relief will not prosper if filed after a contract, statute or right has been breached or violated. In the
present case such is precisely the situation arising from the facts alleged in the petition for declaratory relief. As vigorously
claimed by petitioner himself, respondent had already invaded or violated his right and caused him injury all these giving him
a complete cause of action enforceable in an appropriate ordinary civil action or proceeding. The dismissal of the action was,
therefore, proper in the light of our ruling in De Borja vs. Villadolid, 47 O.G. (5) p. 2315, and Samson vs. Andal, G.R. No. L-
3439, July 31, 1951, where we held that an action for declaratory relief should be filed before there has been a breach of a
contract, statutes or right, and that it is sufficient to bar such action, that there had been a breach which would constitute
actionable violation. The rule is that an action for Declaratory Relief is proper only if adequate relief is not available through the
means of other existing forms of action or proceeding (1 C.J.S. 1027-1028). 132

It is also required that the parties to the action for declaratory relief be those whose rights or interests are affected by the
contract or statute in question.133 There must be an actual justiciable controversy or the ripening seeds of one134 between the
parties. The issue between the parties must be ripe for judicial determination.135 An action for declaratory relief based on
theoretical or hypothetical questions cannot be filed for our courts are not advisory courts.136chanRoblesvirtualLawlibrary

In Republic v. Roque,137 this court dismissed respondents petition for declaratory relief for lack of justiciable controversy.
According to this court, [the respondents] fear of prospective prosecution [under the Human Security Act] was solely based on
remarks of certain government officials which were addressed to the general public.138chanRoblesvirtualLawlibrary

In Velarde v. Social Justice Society,139 this court refused to resolve the issue of whether or not [a religious leaders
endorsement] of a candidate for elective office or in urging or requiring the members of his flock to vote for a specific candidate
is violative [of the separation clause].140 According to the court, there was no justiciable controversy and ordered the dismissal
of the Social Justice Societys petition for declaratory relief. This court explained:chanroblesvirtuallawlibrary

Indeed, SJS merely speculated or anticipated without factual moorings that, as religious leaders, the petitioner and his co-
respondents below had endorsed or threatened to endorse a candidate or candidates for elective offices; and that such actual
or threatened endorsement "will enable [them] to elect men to public office who [would] in turn be forever beholden to their
leaders, enabling them to control the government"[;] and "pos[ing] a clear and present danger of serious erosion of the peoples
faith in the electoral process[;] and reinforc[ing] their belief that religious leaders determine the ultimate result of elections,"
which would then be violative of the separation clause.

Such premise is highly speculative and merely theoretical, to say the least. Clearly, it does not suffice to constitute a justiciable
controversy. The Petition does not even allege any indication or manifest intent on the part of any of the respondents below to
champion an electoral candidate, or to urge their so-called flock to vote for, or not to vote for, a particular candidate. It is a time-
honored rule that sheer speculation does not give rise to an actionable right.

Obviously, there is no factual allegation that SJS rights are being subjected to any threatened, imminent and inevitable violation
that should be prevented by the declaratory relief sought. The judicial power and duty of the courts to settle actual controversies
involving rights that are legally demandable and enforceable cannot be exercised when there is no actual or threatened
violation of a legal right.

All that the 5-page SJS Petition prayed for was "that the question raised in paragraph 9 hereof be resolved." In other words, it
merely sought an opinion of the trial court on whether the speculated acts of religious leaders endorsing elective candidates for
political offices violated the constitutional principle on the separation of church and state. SJS did not ask for a declaration of its
rights and duties; neither did it pray for the stoppage of any threatened violation of its declared rights. Courts, however, are
proscribed from rendering an advisory opinion.141

In sum, a petition for declaratory relief must satisfy six requisites:chanroblesvirtuallawlibrary

[F]irst, the subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order
or regulation, or ordinance; second, the terms of said documents and the validity thereof are doubtful and require judicial
construction; third, there must have been no breach of the documents in question; fourth, there must be an actual justiciable
controversy or the "ripening seeds" of one between persons whose interests are adverse; fifth, the issue must be ripe for
judicial determination; and sixth, adequate relief is not available through other means or other forms of action or
proceeding.142 (Emphases omitted)

We rule that the PEZA erred in availing itself of a petition for declaratory relief against the City. The City had already issued
demand letters and real property tax assessment against the PEZA, in violation of the PEZAs alleged tax-exempt status under
its charter. The Special Economic Zone Act of 1995, the subject matter of PEZAs petition for declaratory relief, had already
been breached. The trial court, therefore, had no jurisdiction over the petition for declaratory relief.

There are several aspects of jurisdiction.143 Jurisdiction over the subject matter is the power to hear and determine cases of
the general class to which the proceedings in question belong.144 It is conferred by law, which may either be the Constitution or
a statute.145 Jurisdiction over the subject matter means the nature of the cause of action and the relief sought.146 Thus, the
cause of action and character of the relief sought as alleged in the complaint are examined to determine whether a court had
jurisdiction over the subject matter.147 Any decision rendered by a court without jurisdiction over the subject matter of the action
is void.148chanRoblesvirtualLawlibrary

Another aspect of jurisdiction is jurisdiction over the person. It is the power of [a] court to render a personal judgment or to
subject the parties in a particular action to the judgment and other rulings rendered in the action.149 A court automatically
acquires jurisdiction over the person of the plaintiff upon the filing of the initiatory pleading.150 With respect to the defendant,
voluntary appearance in court or a valid service of summons vests the court with jurisdiction over the defendants person.151
Jurisdiction over the person of the defendant is indispensable in actions in personam or those actions based on a partys
personal liability.152 The proceedings in an action in personam are void if the court had no jurisdiction over the person of the
defendant.153chanRoblesvirtualLawlibrary

Jurisdiction over the res or the thing under litigation is acquired either by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or as a result of the institution of legal proceedings, in which the power of
the court is recognized and made effective.154 Jurisdiction over the res is necessary in actions in rem or those actions directed
against the thing or property or status of a person and seek judgments with respect thereto as against the whole world.155 The
proceedings in an action in rem are void if the court had no jurisdiction over the thing under
litigation.156chanRoblesvirtualLawlibrary

In the present case, the Regional Trial Court had no jurisdiction over the subject matter of the action, specifically, over the
remedy sought. As this court explained in Malana v. Tappa:157chanRoblesvirtualLawlibrary

. . . an action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of rights
arising thereunder. Since the purpose of an action for declaratory relief is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, or contract for their guidance in the enforcement thereof, or compliance
therewith, and not to settle issues arising from an alleged breach thereof, it may be entertained only before the breach or
violation of the statute, deed, or contract to which it refers. A petition for declaratory relief gives a practical remedy for ending
controversies that have not reached the state where another relief is immediately available; and supplies the need for a form of
action that will set controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission
of wrongs.

Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the courts can no
longer assume jurisdiction over the action. In other words, a court has no more jurisdiction over an action for declaratory relief
if its subject has already been infringed or transgressed before the institution of the action.158(Emphasis supplied)

The trial court should have dismissed the PEZAs petition for declaratory relief for lack of jurisdiction.

Once an assessment has already been issued by the assessor, the proper remedy of a taxpayer depends on whether the
assessment was erroneous or illegal.

An erroneous assessment presupposes that the taxpayer is subject to the tax but is disputing the correctness of the amount
assessed.159 With an erroneous assessment, the taxpayer claims that the local assessor erred in determining any of the items
for computing the real property tax, i.e., the value of the real property or the portion thereof subject to tax and the proper
assessment levels. In case of an erroneous assessment, the taxpayer must exhaust the administrative remedies provided
under the Local Government Code before resorting to judicial action.

The taxpayer must first pay the real property tax under protest. Section 252 of the Local Government Code
provides:chanroblesvirtuallawlibrary

SECTION 252. Payment Under Protest. -(a) No protest shall be entertained unless the taxpayer first pays the tax. There shall
be annotated on the tax receipts the words "paid under protest". The protest in writing must be filed within thirty (30) days from
payment of the tax to the provincial, city treasurer or municipal treasurer, in the case of a municipality within Metropolitan Manila
Area, who shall decide the protest within sixty (60) days from receipt.

(b) The tax or a portion thereof paid under protest, shall be held in trust by the treasurer concerned.

(c) In the event that the protest is finally decided in favor of the taxpayer, the amount or portion of the tax protested shall be
refunded to the protestant, or applied as tax credit against his existing or future tax liability.

(d) In the event that the protest is denied or upon the lapse of the sixty day period prescribed in subparagraph (a), the taxpayer
may avail of the remedies as provided for in Chapter 3, Title II, Book II of this Code.

Should the taxpayer find the action on the protest unsatisfactory, the taxpayer may appeal with the Local Board of Assessment
Appeals within 60 days from receipt of the decision on the protest:chanroblesvirtuallawlibrary

SECTION 226. Local Board of Assessment Appeals. - Any owner or person having legal interest in the property who is not
satisfied with the action of the provincial, city or municipal assessor in the assessment of his property may, within sixty (60)
days from the date of receipt of the written notice of assessment, appeal to the Board of Assessment Appeals of the provincial
or city by filing a petition under oath in the form prescribed for the purpose, together with copies of the tax declarations and
such affidavits or documents submitted in support of the appeal.

Payment under protest and appeal to the Local Board of Assessment Appeals are successive administrative remedies to a
taxpayer who questions the correctness of an assessment.160 The Local Board Assessment Appeals shall not entertain an
appeal without the action of the local assessor161 on the protest.

If the taxpayer is still unsatisfied after appealing with the Local Board of Assessment Appeals, the taxpayer may appeal with the
Central Board of Assessment Appeals within 30 days from receipt of the Local Boards decision:chanroblesvirtuallawlibrary

SECTION 229. Action by the Local Board of Assessment Appeals. - (a) The Board shall decide the appeal within one hundred
twenty (120) days from the date of receipt of such appeal. The Board, after hearing, shall render its decision based on
substantial evidence or such relevant evidence on record as a reasonable mind might accept as adequate to support the
conclusion.
(b) In the exercise of its appellate jurisdiction, the Board shall have the power to summon witnesses, administer oaths, conduct
ocular inspection, take depositions, and issue subpoena and subpoena duces tecum. The proceedings of the Board shall be
conducted solely for the purpose of ascertaining the facts without necessarily adhering to technical rules applicable in judicial
proceedings.

(c) The secretary of the Board shall furnish the owner of the property or the person having legal interest therein and the
provincial or city assessor with a copy of the decision of the Board. In case the provincial or city assessor concurs in the
revision or the assessment, it shall be his duty to notify the owner of the property or the person having legal interest therein of
such fact using the form prescribed for the purpose. The owner of the property or the person having legal interest therein or the
assessor who is not satisfied with the decision of the Board, may, within thirty (30) days after receipt of the decision of said
Board, appeal to the Central Board of Assessment Appeals, as herein provided. The decision of the Central Board shall be final
and executory. (Emphasis supplied)

On the other hand, an assessment is illegal if it was made without authority under the law.162 In case of an illegal assessment,
the taxpayer may directly resort to judicial action without paying under protest the assessed tax and filing an appeal with the
Local and Central Board of Assessment Appeals.

In Ty v. Trampe,163 the Municipal Assessor of Pasig sent Alejandro B. Ty a notice of assessment with respect to Tys real
properties in Pasig. Without resorting to the administrative remedies under the Local Government Code, Ty filed before the
Regional Trial Court a petition, praying that the trial court nullify the notice of assessment. In assessing the real property taxes
due, the Municipal Assessor used a schedule of market values solely prepared by him. This, Ty argued, was void for being
contrary to the Local Government Code requiring that the schedule of market values be jointly prepared by the provincial, city,
and municipal assessors of the municipalities within the Metropolitan Manila Area.

This court ruled that the assessment was illegal for having been issued without authority of the Municipal Assessor.
Reconciling provisions of the Real Property Tax Code and the Local Government Code, this court held that the schedule of
market values must be jointly prepared by the provincial, city, and municipal assessors of the municipalities within the
Metropolitan Manila Area.

As to the issue of exhaustion of administrative remedies, this court held that Ty did not err in directly resorting to judicial action.
According to this court, payment under protest is required only where there is a question as to the reasonableness of the
amount assessed.164 As to appeals before the Local and Central Board of Assessment Appeals, they are fruitful only where
questions of fact are involved.165chanRoblesvirtualLawlibrary

Ty raised the issue of the legality of the notice of assessment, an issue that did not go into the reasonableness of the amount
assessed. Neither did the issue involve a question of fact. Ty raised a question of law and, therefore, need not resort to the
administrative remedies provided under the Local Government Code.

In the present case, the PEZA did not avail itself of any of the remedies against a notice of assessment. A petition for
declaratory relief is not the proper remedy once a notice of assessment was already issued.

Instead of a petition for declaratory relief, the PEZA should have directly resorted to a judicial action. The PEZA should have
filed a complaint for injunction, the appropriate ordinary civil action166 to enjoin the City from enforcing its demand and
collecting the assessed taxes from the PEZA. After all, a declaratory judgment as to the PEZAs tax-exempt status is useless
unless the City is enjoined from enforcing its demand.

Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a certain act.167 It
may be the main action or merely a provisional remedy for and as incident in the main action.168 The essential requisites of a
writ of injunction are: (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which
the injunction is directed to constitute a violation of such right.169chanRoblesvirtualLawlibrary

We note, however, that the City confused the concepts of jurisdiction and venue in contending that the Regional Trial Court of
Pasay had no jurisdiction because the real properties involved in this case are located in the City of Lapu-Lapu.

On the one hand, jurisdiction is the power to hear and determine cases of the general class to which the proceedings in
question belong.170 Jurisdiction is a matter of substantive law.171 Thus, an action may be filed only with the court or tribunal
where the Constitution or a statute says it can be brought.172 Objections to jurisdiction cannot be waived and may be brought at
any stage of the proceedings, even on appeal.173 When a case is filed with a court which has no jurisdiction over the action, the
court shall motu proprio dismiss the case.174chanRoblesvirtualLawlibrary

On the other hand, venue is the place of trial or geographical location in which an action or proceeding should be brought.175
In civil cases, venue is a matter of procedural law.176 A partys objections to venue must be brought at the earliest opportunity
either in a motion to dismiss or in the answer; otherwise the objection shall be deemed waived.177 When the venue of a civil
action is improperly laid, the court cannot motu proprio dismiss the case.178chanRoblesvirtualLawlibrary

The venue of an action depends on whether the action is a real or personal action. Should the action affect title to or
possession of real property, or interest therein, it is a real action. The action should be filed in the proper court which has
jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.179 If the action is a personal action,
the action shall be filed with the proper court where the plaintiff or any of the principal plaintiffs resides, or where the defendant
or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of
the plaintiff.180chanRoblesvirtualLawlibrary

The City was objecting to the venue of the action, not to the jurisdiction of the Regional Trial Court of Pasay. In essence, the
City was contending that the PEZAs petition is a real action as it affects title to or possession of real property, and, therefore,
the PEZA should have filed the petition with the Regional Trial Court of Lapu-Lapu City where the real properties are located.

However, whatever objections the City has against the venue of the PEZAs action for declaratory relief are already deemed
waived. Objections to venue must be raised at the earliest possible opportunity.181 The City did not file a motion to dismiss the
petition on the ground that the venue was improperly laid. Neither did the City raise this objection in its answer.

In any event, the law sought to be judicially interpreted in this case had already been breached. The Regional Trial Court of
Pasay, therefore, had no jurisdiction over the PEZAs petition for declaratory relief against the City.

III.

The Court of Appeals had no jurisdiction


over the PEZAs petition for certiorari
against the Province of Bataan

Appeal is the remedy to obtain a reversal or modification of a judgment on the merits.182 A judgment on the merits is one
which determines the rights and liabilities of the parties based on the disclosed facts, irrespective of the formal, technical or
dilatory objections.183 It is not even necessary that the case proceeded to trial.184 So long as the judgment is general185 and
the parties had a full legal opportunity to be heard on their respective claims and contentions, 186 the judgment is on the merits.

On the other hand, certiorari is a special civil action filed to annul or modify a proceeding of a tribunal, board, or officer
exercising judicial or quasi-judicial functions.187 Certiorari, which in Latin means to be more fully informed,188 was originally a
remedy in the common law. This court discussed the history of the remedy of certiorari in Spouses Delos Santos v.
Metropolitan Bank and Trust Company:189chanRoblesvirtualLawlibrary

In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued out of Chancery, or the Kings
Bench, commanding agents or officers of the inferior courts to return the record of a cause pending before them, so as to give
the party more sure and speedy justice, for the writ would enable the superior court to determine from an inspection of the
record whether the inferior courts judgment was rendered without authority. The errors were of such a nature that, if allowed to
stand, they would result in a substantial injury to the petitioner to whom no other remedy was available. If the inferior court
acted without authority, the record was then revised and corrected in matters of law. The writ of certiorari was limited to cases in
which the inferior court was said to be exceeding its jurisdiction or was not proceeding according to essential requirements of
law and would lie only to review judicial or quasi-judicial acts.190

In our jurisdiction, the term certiorari is used in two ways. An appeal before this court raising pure questions of law is
commenced by filing a petition for review on certiorari under Rule 45 of the Rules of Court. An appeal by certiorari, which
continues the proceedings commenced before the lower courts,191is filed to reverse or modify judgments or final orders.192
Under the Rules, an appeal by certiorari must be filed within 15 days from notice of the judgment or final order, or of the denial
of the appellants motion for new trial or reconsideration.193chanRoblesvirtualLawlibrary
A petition for certiorari under Rule 65, on the other hand, is an independent and original action filed to set aside proceedings
conducted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.194
Under the Rules, a petition for certiorari may only be filed if there is no appeal or any plain, speedy, or adequate remedy in the
ordinary course of law.195 The petition must be filed within 60 days from notice of the judgment, order, or
resolution.196chanRoblesvirtualLawlibrary

Because of the longer period to file a petition for certiorari, some litigants attempt to file petitions for certiorari as substitutes for
lost appeals by certiorari. However, Rule 65 is clear that a petition for certiorari will not prosper if appeal is available. Appeal is
the proper remedy even if the error, or one of the errors, raised is grave abuse of discretion on the part of the court rendering
judgment.197 If appeal is available, a petition for certiorari cannot be filed.

In this case, the trial courts decision dated January 31, 2007 is a judgment on the merits. Based on the facts disclosed by the
parties, the trial court declared the PEZA liable to the Province of Bataan for real property taxes. The PEZAs proper remedy
against the trial courts decision, therefore, is appeal.

Since the PEZA filed a petition for certiorari against the trial courts decision, it availed itself of the wrong remedy. As the
Province of Bataan contended, the trial courts decision dated January 31, 2007 is only an error of judgment appealable to the
higher level court and may not be corrected by filing a petition for certiorari.198 That the trial court judge allegedly committed
grave abuse of discretion does not make the petition for certiorari the correct remedy. The PEZA should have raised this
ground in an appeal filed within 15 days from notice of the assailed resolution.

This court, in the liberal spirit pervading the Rules of Court and in the interest of substantial justice,199has treated petitions
for certiorari as an appeal: (1) if the petition for certiorari was filed within the reglementary period within which to file a petition
for review on certiorari; (2) when errors of judgment are averred; and (3) when there is sufficient reason to justify the relaxation
of the rules.200 Considering that the nature of an action is determined by the allegations of the complaint or the petition and
the character of the relief sought,201 a petition which actually avers errors of judgment rather than errors than that of
jurisdiction202 may be considered a petition for review.

However, suspending the application of the Rules has its disadvantages. Relaxing procedural rules may reduce the effective
enforcement of substantive rights,203 leading to arbitrariness, caprice, despotism, or whimsicality in the settlement of
disputes.204 Therefore, for this court to suspend the application of the Rules, the accomplishment of substantial justice must
outweigh the importance of predictability of court procedures.

The PEZAs petition for certiorari may be treated as an appeal. First, the petition for certiorari was filed within the 15-day
reglementary period for filing an appeal. The PEZA filed its petition for certiorari before the Court of Appeals on October 15,
2007,205 which was 12 days from October 3, 2007206 when the PEZA had notice of the trial courts order denying the motion for
reconsideration.

Second, the petition for certiorari raised errors of judgment. The PEZA argued that the trial court erred in ruling that it is not
exempt from payment of real property taxes given Section 21 of Presidential Decree No. 66 and Sections 11 and 51 of the
Special Economic Zone Act of 1995.207chanRoblesvirtualLawlibrary

Third, there is sufficient reason to relax the rules given the importance of the substantive issue presented in this case.

However, the PEZAs petition for certiorari was filed before the wrong court. The PEZA should have filed its petition before the
Court of Tax Appeals.

The Court of Tax Appeals has the exclusive appellate jurisdiction over local tax cases decided by Regional Trial Courts. Section
7, paragraph (a)(3) of Republic Act No. 1125, as amended by Republic Act No. 9282, provides:chanroblesvirtuallawlibrary

Sec. 7. Jurisdiction. The [Court of Tax Appeals] shall exercise:

a. Exclusive appellate jurisdiction to review by appeal, as herein provided:

....
3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases originally decided or resolved by them in the
exercise of their original or appellate jurisdiction[.]

The local tax cases referred to in Section 7, paragraph (a)(3) of Republic Act No. 1125, as amended, include cases involving
real property taxes. Real property taxation is governed by Book II of the Local Government Code on Local Taxation and Fiscal
Matters. Real property taxes are collected by the Local Treasurer,208 not by the Bureau of Internal Revenue in charge of
collecting national internal revenue taxes, fees, and charges.209chanRoblesvirtualLawlibrary

Section 7, paragraph (a)(5) of Republic Act No. 1125, as amended by Republic Act No. 9282, separately provides for the
exclusive appellate jurisdiction of the Court of Tax Appeals over decisions of the Central Board of Assessment Appeals involving
the assessment or collection of real property taxes:chanroblesvirtuallawlibrary

Sec. 7. Jurisdiction. The [Court of Tax Appeals] shall exercise:

a. Exclusive appellate jurisdiction to review by appeal, as herein provided:

....

5. Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the
assessment and taxation of real property originally decided by the provincial or city board of assessment appeals[.]

This separate provision, nevertheless, does not bar the Court of Tax Appeals from taking cognizance of trial court decisions
involving the collection of real property tax cases. Sections 256210 and 266211 of the Local Government Code expressly allow
local government units to file in any court of competent jurisdiction civil actions to collect basic real property taxes. Should the
trial court rule against them, local government units cannot be barred from appealing before the Court of Tax Appeals the
highly specialized body specifically created for the purpose of reviewing tax cases.212chanRoblesvirtualLawlibrary

We have also ruled that the Court of Tax Appeals, not the Court of Appeals, has the exclusive original jurisdiction over petitions
for certiorari assailing interlocutory orders issued by Regional Trial Courts in a local tax case. We explained in The City of
Manila v. Hon. Grecia-Cuerdo213 that while the Court of Tax Appeals has no express grant of power to issue writs of certiorari
under Republic Act No. 1125,214 as amended, the tax courts judicial power as defined in the Constitution215 includes the power
to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the [Regional Trial Court] in issuing an interlocutory order of jurisdiction in cases falling within the exclusive appellate jurisdiction
of the tax court.216 We further elaborated:chanroblesvirtuallawlibrary

Indeed, in order for any appellate court to effectively exercise its appellate jurisdiction, it must have the authority to issue,
among others, a writ of certiorari. In transferring exclusive jurisdiction over appealed tax cases to the CTA, it can reasonably be
assumed that the law intended to transfer also such power as is deemed necessary, if not indispensable, in aid of such
appellate jurisdiction. There is no perceivable reason why the transfer should only be considered as partial, not total.

....

If this Court were to sustain petitioners' contention that jurisdiction over their certiorari petition lies with the CA, this Court would
be confirming the exercise by two judicial bodies, the CA and the CTA, of jurisdiction over basically the same subject matter
precisely the split-jurisdiction situation which is anathema to the orderly administration of justice. The Court cannot accept that
such was the legislative motive, especially considering that the law expressly confers on the CTA, the tribunal with the
specialized competence over tax and tariff matters, the role of judicial review over local tax cases without mention of any other
court that may exercise such power. Thus, the Court agrees with the ruling of the CA that since appellate jurisdiction over
private respondents' complaint for tax refund is vested in the CTA, it follows that a petition for certiorari seeking nullification of
an interlocutory order issued in the said case should, likewise, be filed with the same court. To rule otherwise would lead to an
absurd situation where one court decides an appeal in the main case while another court rules on an incident in the very same
case.

Stated differently, it would be somewhat incongruent with the pronounced judicial abhorrence to split jurisdiction to conclude
that the intention of the law is to divide the authority over a local tax case filed with the RTC by giving to the CA or this Court
jurisdiction to issue a writ of certiorari against interlocutory orders of the RTC but giving to the CTA the jurisdiction over the
appeal from the decision of the trial court in the same case. It is more in consonance with logic and legal soundness to
conclude that the grant of appellate jurisdiction to the CTA over tax cases filed in and decided by the RTC carries with it the
power to issue a writ of certiorari when necessary in aid of such appellate jurisdiction. The supervisory power or jurisdiction of
the CTA to issue a writ of certiorari in aid of its appellate jurisdiction should co-exist with, and be a complement to, its appellate
jurisdiction to review, by appeal, the final orders and decisions of the RTC, in order to have complete supervision over the acts
of the latter.217 (Citations omitted)

In this case, the petition for injunction filed before the Regional Trial Court of Pasay was a local tax case originally decided by
the trial court in its original jurisdiction. Since the PEZA assailed a judgment, not an interlocutory order, of the Regional Trial
Court, the PEZAs proper remedy was an appeal to the Court of Tax Appeals.

Considering that the appellate jurisdiction of the Court of Tax Appeals is to the exclusion of all other courts, the Court of Appeals
had no jurisdiction to take cognizance of the PEZAs petition. The Court of Appeals acted without jurisdiction in rendering the
decision in CA-G.R. SP No. 100984. Its decision in CA-G.R. SP No. 100984 is void.218chanRoblesvirtualLawlibrary

The filing of appeal in the wrong court does not toll the period to appeal. Consequently, the decision of the Regional Trial Court,
Branch 115, Pasay City, became final and executory after the lapse of the 15th day from the PEZAs receipt of the trial courts
decision.219 The denial of the petition for injunction became final and executory.

IV.

The remedy of a taxpayer depends on the


stage in which the local government unit is
enforcing its authority to impose real
property taxes

The proper remedy of a taxpayer depends on the stage in which the local government unit is enforcing its authority to collect
real property taxes. For the guidance of the members of the bench and the bar, we reiterate the taxpayers remedies against
the erroneous or illegal assessment of real property taxes.

Exhaustion of administrative remedies under the Local Government Code is necessary in cases of erroneous assessments
where the correctness of the amount assessed is assailed. The taxpayer must first pay the tax then file a protest with the Local
Treasurer within 30 days from date of payment of tax.220 If protest is denied or upon the lapse of the 60-day period to decide
the protest, the taxpayer may appeal to the Local Board of Assessment Appeals within 60 days from the denial of the protest or
the lapse of the 60-day period to decide the protest.221 The Local Board of Assessment Appeals has 120 days to decide the
appeal.222chanRoblesvirtualLawlibrary

If the taxpayer is unsatisfied with the Local Boards decision, the taxpayer may appeal before the Central Board of Assessment
Appeals within 30 days from receipt of the Local Boards decision.223chanRoblesvirtualLawlibrary

The decision of the Central Board of Assessment Appeals is appealable before the Court of Tax Appeals En Banc.224 The
appeal before the Court of Tax Appeals shall be filed following the procedure under Rule 43 of the Rules of
Court.225chanRoblesvirtualLawlibrary

The Court of Tax Appeals decision may then be appealed before this court through a petition for review on certiorari under Rule
45 of the Rules of Court raising pure questions of law.226chanRoblesvirtualLawlibrary

In case of an illegal assessment where the assessment was issued without authority, exhaustion of administrative remedies is
not necessary and the taxpayer may directly resort to judicial action.227 The taxpayer shall file a complaint for injunction before
the Regional Trial Court228 to enjoin the local government unit from collecting real property taxes.

The party unsatisfied with the decision of the Regional Trial Court shall file an appeal, not a petition for certiorari, before the
Court of Tax Appeals, the complaint being a local tax case decided by the Regional Trial Court.229 The appeal shall be filed
within fifteen (15) days from notice of the trial courts decision.

The Court of Tax Appeals decision may then be appealed before this court through a petition for review on certiorari under Rule
45 of the Rules of Court raising pure questions of law.230chanRoblesvirtualLawlibrary
In case the local government unit has issued a notice of delinquency, the taxpayer may file a complaint for injunction to enjoin
the impending sale of the real property at public auction. In case the local government unit has already sold the property at
public auction, the taxpayer must first deposit with the court the amount for which the real property was sold, together with
interest of 2% per month from the date of sale to the time of the institution of action. The taxpayer may then file a complaint to
assail the validity of the public auction.231 The decisions of the Regional Trial Court in these cases shall be appealable before
the Court of Tax Appeals,232 and the latters decisions appealable before this court through a petition for review on certiorari
under Rule 45 of the Rules of Court.233chanRoblesvirtualLawlibrary

V.

The PEZA is exempt from payment


of real property taxes

The jurisdictional errors in this case render these consolidated petitions moot. We do not review void decisions rendered
without jurisdiction.

However, the PEZA alleged that several local government units, including the City of Baguio and the Province of Cavite, have
issued their respective real property tax assessments against the PEZA. Other local government units will likely follow suit, and
either the PEZA or the local government units taxing the PEZA may file their respective actions against each other.

In the interest of judicial economy234 and avoidance of conflicting decisions involving the same issues,235 we resolve the
substantive issue of whether the PEZA is exempt from payment of real property taxes.

Real property taxes are annual taxes levied on real property such as lands, buildings, machinery, and other improvements not
otherwise specifically exempted under the Local Government Code.236 Real property taxes are ad valorem, with the amount
charged based on a fixed proportion of the value of the property.237 Under the law, provinces, cities, and municipalities within
the Metropolitan Manila Area have the power to levy real property taxes within their respective
territories.238chanRoblesvirtualLawlibrary

The general rule is that real properties are subject to real property taxes. This is true especially since the Local Government
Code has withdrawn exemptions from real property taxes of all persons, whether natural or juridical:chanroblesvirtuallawlibrary

SEC. 234. Exemptions from Real Property Tax. The following are exempted from payment of real property tax:

(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use
thereof has been granted, for consideration or otherwise, to a taxable person;

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, nonprofit or religious cemeteries
and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable or educational
purposes;

(c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government-owned
or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric
power;

(d) All real property owned by duly registered cooperatives as provided under R.A. No. 6938; and

(e) Machinery and equipment used for pollution control and environmental protection.

Except as provided herein, any exemption from payment of real property taxes previously granted to, or presently enjoyed by,
all persons, whether natural or juridical, including government-owned or -controlled corporations are hereby withdrawn upon
the effectivity of this Code. (Emphasis supplied)

The person liable for real property taxes is the taxable person who had actual or beneficial use and possession [of the real
property for the taxable period,] whether or not [the person owned the property for the period he or she is being
taxed].239chanRoblesvirtualLawlibrary
The exceptions to the rule are provided in the Local Government Code. Under Section 133(o), local government units have no
power to levy taxes of any kind on the national government, its agencies and instrumentalities and local government
units:chanroblesvirtuallawlibrary

SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the
exercise of taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following:

....

(o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities and local government
units.

Specifically on real property taxes, Section 234 enumerates the persons and real property exempt from real property
taxes:chanroblesvirtuallawlibrary

SEC. 234. Exemptions from Real Property Tax. The following are exempted from payment of real property tax:

(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use
thereof has been granted, for consideration or otherwise, to a taxable person;

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, nonprofit or religious cemeteries
and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable or educational
purposes;

(c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government-
owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of
electric power;

(d) All real property owned by duly registered cooperatives as provided under R.A. No. 6938; and

(e) Machinery and equipment used for pollution control and environmental protection.

Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all
persons, whether natural or juridical, including all government-owned or -controlled corporations are hereby withdrawn upon the
effectivity of this Code. (Emphasis supplied)

For persons granted tax exemptions or incentives before the effectivity of the Local Government Code, Section 193 withdrew
these tax exemption privileges. These persons consist of both natural and juridical persons, including government-owned or
controlled corporations:chanroblesvirtuallawlibrary

SEC. 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this code, tax exemptions or incentives
granted to or presently enjoyed by all persons, whether natural or juridical, including government-owned or controlled
corporations, except local water districts, cooperatives duly registered under R.A. 6938, non stock and non profit hospitals and
educational institutions, are hereby withdrawn upon effectivity of this Code.

As discussed, Section 234 withdrew all tax privileges with respect to real property taxes.

Nevertheless, local government units may grant tax exemptions under such terms and conditions as they may deem
necessary:chanroblesvirtuallawlibrary

SEC. 192. Authority to Grant Tax Exemption Privileges. Local government units may, through ordinances duly approved,
grant tax exemptions, incentives or reliefs under such terms and conditions as they may deem necessary.

In Mactan Cebu International Airport Authority v. Hon. Marcos,240 this court classified the exemptions from real property taxes
into ownership, character, and usage exemptions.
Ownership exemptions are exemptions based on the ownership of the real property. The exemptions of real property owned by
the Republic of the Philippines, provinces, cities, municipalities, barangays, and registered cooperatives fall under this
classification.241chanRoblesvirtualLawlibrary

Character exemptions are exemptions based on the character of the real property. Thus, no real property taxes may be levied
on charitable institutions, houses and temples of prayer like churches, parsonages, or convents appurtenant thereto, mosques,
and non profit or religious cemeteries.242chanRoblesvirtualLawlibrary

Usage exemptions are exemptions based on the use of the real property. Thus, no real property taxes may be levied on real
property such as: (1) lands and buildings actually, directly, and exclusively used for religious, charitable or educational purpose;
(2) machineries and equipment actually, directly and exclusively used by local water districts or by government-owned or
controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power;
and (3) machinery and equipment used for pollution control and environmental protection.243chanRoblesvirtualLawlibrary

Persons may likewise be exempt from payment of real properties if their charters, which were enacted or reenacted after the
effectivity of the Local Government Code, exempt them payment of real property taxes.244chanRoblesvirtualLawlibrary

V. (A)

The PEZA is an instrumentality of the national government

An instrumentality is any agency of the National Government, not integrated within the department framework, vested with
special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and
enjoying operational autonomy, usually through a charter.245chanRoblesvirtualLawlibrary

Examples of instrumentalities of the national government are the Manila International Airport Authority,246 the Philippine
Fisheries Development Authority,247 the Government Service Insurance System,248 and the Philippine Reclamation Authority.249
These entities are not integrated within the department framework but are nevertheless vested with special functions to carry
out a declared policy of the national government.

Similarly, the PEZA is an instrumentality of the national government. It is not integrated within the department framework but is
an agency attached to the Department of Trade and Industry.250 Book IV, Chapter 7, Section 38(3)(a) of the Administrative
Code of 1987 defines attachment:chanroblesvirtuallawlibrary

SEC. 38. Definition of Administrative Relationship. Unless otherwise expressly stated in the Code or in other laws defining the
special relationships of particular agencies, administrative relationships shall be categorized and defined as follows:

....

(3) Attachment.(a) This refers to the lateral relationship between the department or its equivalent and the attached agency or
corporation for purposes of policy and program coordination. The coordination may be accomplished by having the department
represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without
voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic
reporting which shall reflect the progress of the programs and projects; and having the department or its equivalent provide
general policies through its representative in the board, which shall serve as the framework for the internal policies of the
attached corporation or agency[.]

Attachment, which enjoys a larger measure of independence251 compared with other administrative relationships such as
supervision and control, is further explained in Beja, Sr. v. Court of Appeals:252chanRoblesvirtualLawlibrary

An attached agency has a larger measure of independence from the Department to which it is attached than one which is under
departmental supervision and control or administrative supervision. This is borne out by the lateral relationship between the
Department and the attached agency. The attachment is merely for policy and program coordination. With respect to
administrative matters, the independence of an attached agency from Departmental control and supervision is further reinforced
by the fact that even an agency under a Departments administrative supervision is free from Departmental interference with
respect to appointments and other personnel actions in accordance with the decentralization of personnel functions under the
Administrative Code of 1987. Moreover, the Administrative Code explicitly provides that Chapter 8 of Book IV on supervision
and control shall not apply to chartered institutions attached to a Department.253

With the PEZA as an attached agency to the Department of Trade and Industry, the 13-person PEZA Board is chaired by the
Department Secretary.254 Among the powers and functions of the PEZA is its ability to coordinate with the Department of Trade
and Industry for policy and program formulation and implementation.255 In strategizing and prioritizing the development of
special economic zones, the PEZA coordinates with the Department of Trade and Industry.256chanRoblesvirtualLawlibrary

The PEZA also administers its own funds and operates autonomously, with the PEZA Board formulating and approving the
PEZAs annual budget.257 Appointments and other personnel actions in the PEZA are also free from departmental interference,
with the PEZA Board having the exclusive and final authority to promote, transfer, assign and reassign officers of the
PEZA.258chanRoblesvirtualLawlibrary

As an instrumentality of the national government, the PEZA is vested with special functions or jurisdiction by law. Congress
created the PEZA to operate, administer, manage and develop special economic zones in the Philippines.259 Special economic
zones are areas with highly developed or which have the potential to be developed into agro-industrial, industrial
tourist/recreational, commercial, banking, investment and financial centers.260 By operating, administering, managing, and
developing special economic zones which attract investments and promote use of domestic labor, the PEZA carries out the
following policy of the Government:chanroblesvirtuallawlibrary

SECTION 2. Declaration of Policy. It is the declared policy of the government to translate into practical realities the following
State policies and mandates in the 1987 Constitution, namely:

(a) The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to
needed investments. (Sec. 20, Art. II)

(b) The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt
measures that help make them competitive. (Sec. 12, Art. XII)

In pursuance of these policies, the government shall actively encourage, promote, induce and accelerate a sound and balanced
industrial, economic and social development of the country in order to provide jobs to the people especially those in the rural
areas, increase their productivity and their individual and family income, and thereby improve the level and quality of their living
condition through the establishment, among others, of special economic zones in suitable and strategic locations in the country
and through measures that shall effectively attract legitimate and productive foreign investments.261

Being an instrumentality of the national government, the PEZA cannot be taxed by local government units.

Although a body corporate vested with some corporate powers,262 the PEZA is not a government-owned or controlled
corporation taxable for real property taxes.

Section 2(13) of the Introductory Provisions of the Administrative Code of 1987 defines the term government-owned or
controlled corporation:chanroblesvirtuallawlibrary

SEC. 2. General Terms Defined. Unless the specific words of the text, or the context as a whole, or a particular statute, shall
require a different meaning:

....

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested
with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or
through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-
one (51) per cent of its capital stock: Provided, That government-owned or controlled corporations may be further categorized
by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and
discharge of their respective powers, functions and responsibilities with respect to such corporations.

Government entities are created by law, specifically, by the Constitution or by statute. In the case of government-owned or
controlled corporations, they are incorporated by virtue of special charters263 to participate in the market for special reasons
which may be related to dysfunctions or inefficiencies of the market structure. This is to adjust reality as against the concept of
full competition where all market players are price takers. Thus, under the Constitution, government-owned or controlled
corporations are created in the interest of the common good and should satisfy the test of economic viability.264 Article XII,
Section 16 of the Constitution provides:chanroblesvirtuallawlibrary

Section 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of
the common good and subject to the test of economic viability.

Economic viability is the capacity to function efficiently in business.265 To be economically viable, the entity should not go into
activities which the private sector can do better.266chanRoblesvirtualLawlibrary

To be considered a government-owned or controlled corporation, the entity must have been organized as a stock or non-stock
corporation.267chanRoblesvirtualLawlibrary

Government instrumentalities, on the other hand, are also created by law but partake of sovereign functions. When a
government entity performs sovereign functions, it need not meet the test of economic viability. In Manila International Airport
Authority v. Court of Appeals,268 this court explained:chanroblesvirtuallawlibrary

In contrast, government instrumentalities vested with corporate powers and performing governmental or public functions need
not meet the test of economic viability. These instrumentalities perform essential public services for the common good, services
that every modern State must provide its citizens. These instrumentalities need not be economically viable since the
government may even subsidize their entire operations. These instrumentalities are not the "government-owned or controlled
corporations" referred to in Section 16, Article XII of the 1987 Constitution.

Thus, the Constitution imposes no limitation when the legislature creates government instrumentalities vested with corporate
powers but performing essential governmental or public functions. Congress has plenary authority to create government
instrumentalities vested with corporate powers provided these instrumentalities perform essential government functions or
public services. However, when the legislature creates through special charters corporations that perform economic or
commercial activities, such entities known as "government-owned or controlled corporations" must meet the test of
economic viability because they compete in the market place.

....

Commissioner Blas F. Ople, proponent of the test of economic viability, explained to the Constitutional Commission the purpose
of this test, as follows:chanroblesvirtuallawlibrary

MR. OPLE: Madam President, the reason for this concern is really that when the government creates a corporation, there is a
sense in which this corporation becomes exempt from the test of economic performance. We know what happened in the past.
If a government corporation loses, then it makes its claim upon the taxpayers' money through new equity infusions from the
government and what is always invoked is the common good. That is the reason why this year, out of a budget of P115 billion
for the entire government, about P28 billion of this will go into equity infusions to support a few government financial institutions.
And this is all taxpayers' money which could have been relocated to agrarian reform, to social services like health and
education, to augment the salaries of grossly underpaid public employees. And yet this is all going down the drain.

Therefore, when we insert the phrase "ECONOMIC VIABILITY" together with the "common good," this becomes a restraint on
future enthusiasts for state capitalism to excuse themselves from the responsibility of meeting the market test so that they
become viable. And so, Madam President, I reiterate, for the committee's consideration and I am glad that I am joined in this
proposal by Commissioner Foz, the insertion of the standard of "ECONOMIC VIABILITY OR THE ECONOMIC TEST," together
with the common good.

....

Clearly, the test of economic viability does not apply to government entities vested with corporate powers and performing
essential public services. The State is obligated to render essential public services regardless of the economic viability of
providing such service. The non-economic viability of rendering such essential public service does not excuse the State from
withholding such essential services from the public.269 (Emphases and citations omitted)
The law created the PEZAs charter. Under the Special Economic Zone Act of 1995, the PEZA was established primarily to
perform the governmental function of operating, administering, managing, and developing special economic zones to attract
investments and provide opportunities for preferential use of Filipino labor.

Under its charter, the PEZA was created a body corporate endowed with some corporate powers. However, it was not
organized as a stock270 or non-stock271 corporation. Nothing in the PEZAs charter provides that the PEZAs capital is divided
into shares.272 The PEZA also has no members who shall share in the PEZAs profits.

The PEZA does not compete with other economic zone authorities in the country. The government may even subsidize the
PEZAs operations. Under Section 47 of the Special Economic Zone Act of 1995, any sum necessary to augment [the PEZAs]
capital outlay shall be included in the General Appropriations Act to be treated as an equity of the national
government.273chanRoblesvirtualLawlibrary

The PEZA, therefore, need not be economically viable. It is not a government-owned or controlled corporation liable for real
property taxes.

V. (B)

The PEZA assumed the non-profit character, including the tax exempt status, of the EPZA

The PEZAs predecessor, the EPZA, was declared non-profit in character with all its revenues devoted for its development,
improvement, and maintenance. Consistent with this non-profit character, the EPZA was explicitly declared exempt from real
property taxes under its charter. Section 21 of Presidential Decree No. 66 provides:chanroblesvirtuallawlibrary

Section 21. Non-profit Character of the Authority; Exemption from Taxes. The Authority shall be non-profit and shall devote and
use all its returns from its capital investment, as well as excess revenues from its operations, for the development, improvement
and maintenance and other related expenditures of the Authority to pay its indebtedness and obligations and in furtherance and
effective implementation of the policy enunciated in Section 1 of this Decree. In consonance therewith, the Authority is hereby
declared exempt:ChanRoblesVirtualawlibrary
....

(b) From all income taxes, franchise taxes, realty taxes and all other kinds of taxes and licenses to be paid to the National
Government, its provinces, cities, municipalities and other government agencies and instrumentalities[.]

The Special Economic Zone Act of 1995, on the other hand, does not specifically exempt the PEZA from payment of real
property taxes.

Nevertheless, we rule that the PEZA is exempt from real property taxes by virtue of its charter. A provision in the Special
Economic Zone Act of 1995 explicitly exempting the PEZA is unnecessary. The PEZA assumed the real property exemption of
the EPZA under Presidential Decree No. 66.

Section 11 of the Special Economic Zone Act of 1995 mandated the EPZA to evolve into the PEZA in accordance with the
guidelines and regulations set forth in an executive order issued for this purpose. President Ramos then issued Executive
Order No. 282 in 1995, ordering the PEZA to assume the EPZAs powers, functions, and responsibilities under Presidential
Decree No. 66 not inconsistent with the Special Economic Zone Act of 1995:chanroblesvirtuallawlibrary

SECTION 1. Assumption of EPZAs Powers and Functions by PEZA. All the powers, functions and responsibilities of EPZA as
provided under its Charter, Presidential Decree No. 66, as amended, insofar as they are not inconsistent with the powers,
functions and responsibilities of the PEZA, as mandated under Republic Act No. 7916, shall hereafter be assumed and
exercised by the PEZA. Henceforth, the EPZA shall be referred to as the PEZA.

The following sections of the Special Economic Zone Act of 1995 provide for the PEZAs powers, functions, and
responsibilities:chanroblesvirtuallawlibrary

SEC. 5. Establishment of ECOZONES. To ensure the viability and geographical dispersal of ECOZONES through a system of
prioritization, the following areas are initially identified as ECOZONES, subject to the criteria specified in Section 6:
....

The metes and bounds of each ECOZONE are to be delineated and more particularly described in a proclamation to be issued
by the President of the Philippines, upon the recommendation of the Philippine Economic Zone Authority (PEZA), which shall
be established under this Act, in coordination with the municipal and / or city council, National Land Use Coordinating
Committee and / or the Regional Land Use Committee.

SEC. 6. Criteria for the Establishment of Other ECOZONES. In addition to the ECOZONES identified in Section 5 of this Act,
other areas may be established as ECOZONES in a proclamation to be issued by the President of the Philippines subject to the
evaluation and recommendation of the PEZA, based on a detailed feasibility and engineering study which must conform to the
following criteria:

(a) The proposed area must be identified as a regional growth center in the Medium-Term Philippine Development Plan or by
the Regional Development Council;

(b) The existence of required infrastructure in the proposed ECOZONE, such as roads, railways, telephones, ports, airports,
etc., and the suitability and capacity of the proposed site to absorb such improvements;

(c) The availability of water source and electric power supply for use of the ECOZONE;

(d) The extent of vacant lands available for industrial and commercial development and future expansion of the ECOZONE as
well as of lands adjacent to the ECOZONE available for development of residential areas for the ECOZONE workers;

(e) The availability of skilled, semi-skilled and non-skilled trainable labor force in and around the ECOZONE;

(f) The area must have a significant incremental advantage over the existing economic zones and its potential profitability can
be established;

(g) The area must be strategically located; and

(h) The area must be situated where controls can easily be established to curtail smuggling activities.

Other areas which do not meet the foregoing criteria may be established as ECOZONES: Provided, That the said area shall be
developed only through local government and/or private sector initiative under any of the schemes allowed in Republic Act No.
6957 (the build-operate-transfer law), and without any financial exposure on the part of the national government: Provided,
further, That the area can be easily secured to curtail smuggling activities: Provided, finally, That after five (5) years the area
must have attained a substantial degree of development, the indicators of which shall be formulated by the PEZA.

SEC. 7. ECOZONE to be a Decentralized Agro-Industrial, Industrial, Commercial / Trading, Tourist, Investment and Financial
Community. - Within the framework of the Constitution, the interest of national sovereignty and territorial integrity of the
Republic, ECOZONE shall be developed, as much as possible, into a decentralized, self-reliant and self-sustaining industrial,
commercial/trading, agro-industrial, tourist, banking, financial and investment center with minimum government intervention.
Each ECOZONE shall be provided with transportation, telecommunications, and other facilities needed to generate linkage with
industries and employment opportunities for its own inhabitants and those of nearby towns and cities.

The ECOZONE shall administer itself on economic, financial, industrial, tourism development and such other matters within the
exclusive competence of the national government.

The ECOZONE may establish mutually beneficial economic relations with other entities within the country, or, subject to the
administrative guidance of the Department of Foreign Affairs and/or the Department of Trade and Industry, with foreign entities
or enterprises.

Foreign citizens and companies owned by non-Filipinos in whatever proportion may set up enterprises in the ECOZONE, either
by themselves or in joint venture with Filipinos in any sector of industry, international trade and commerce within the
ECOZONE. Their assets, profits and other legitimate interests shall be protected: Provided, That the ECOZONE through the
PEZA may require a minimum investment for any ECOZONE enterprises in freely convertible currencies: Provided, further, That
the new investment shall fall under the priorities, thrusts and limits provided for in the Act.

SEC. 8. ECOZONE to be Operated and Managed as Separate Customs Territory. The ECOZONE shall be managed and
operated by the PEZA as separate customs territory.

The PEZA is hereby vested with the authority to issue certificate of origin for products manufactured or processed in each
ECOZONE in accordance with the prevailing rules or origin, and the pertinent regulations of the Department of Trade and
Industry and/or the Department of Finance.

SEC. 9. Defense and Security. The defense of the ECOZONE and the security of its perimeter fence shall be the
responsibility of the national government in coordination with the PEZA. Military forces sent by the national government for the
purpose of defense shall not interfere in the internal affairs of any of the ECOZONE and expenditure for these military forces
shall be borne by the national government. The PEZA may provide and establish the ECOZONES internal security and
firefighting forces.

SEC. 10. Immigration. Any investor within the ECOZONE whose initial investment shall not be less than One Hundred Fifty
Thousand Dollars ($150,000.00), his/her spouse and dependent children under twenty-one (21) years of age shall be granted
permanent resident status within the ECOZONE. They shall have freedom of ingress and egress to and from the ECOZONE
without any need of special authorization from the Bureau of Immigration.

The PEZA shall issue working visas renewable every two (2) years to foreign executives and other aliens, processing highly-
technical skills which no Filipino within the ECOZONE possesses, as certified by the Department of Labor and Employment.
The names of aliens granted permanent resident status and working visas by the PEZA shall be reported to the Bureau of
Immigration within thirty (30) days after issuance thereof.

SEC. 13. General Powers and Functions of the Authority. The PEZA shall have the following powers and functions:

(a) To operate, administer, manage and develop the ECOZONE according to the principles and provisions set forth in this Act;

(b) To register, regulate and supervise the enterprises in the ECOZONE in an efficient and decentralized manner;

(c) To coordinate with local government units and exercise general supervision over the development, plans, activities and
operations of the ECOZONES, industrial estates, export processing zones, free trade zones, and the like;

(d) In coordination with local government units concerned and appropriate agencies, to construct, acquire, own, lease, operate
and maintain on its own or through contract, franchise, license, bulk purchase from the private sector and build-operate-transfer
scheme or joint venture, adequate facilities and infrastructure, such as light and power systems, water supply and distribution
systems, telecommunication and transportation, buildings, structures, warehouses, roads, bridges, ports and other facilities for
the operation and development of the ECOZONE;

(e) To create, operate and/or contract to operate such agencies and functional units or offices of the authority as it may deem
necessary;

(f) To adopt, alter and use a corporate seal; make contracts, lease, own or otherwise dispose of personal or real property; sue
and be sued; and otherwise carry out its duties and functions as provided for in this Act;

(g) To coordinate the formulation and preparation of the development plans of the different entities mentioned above;

(h) To coordinate with the National Economic Development Authority (NEDA), the Department of Trade and Industry (DTI), the
Department of Science and Technology (DOST), and the local government units and appropriate government agencies for
policy and program formulation and implementation; and

(i) To monitor and evaluate the development and requirements of entities in subsection (a) and recommend to the local
government units or other appropriate authorities the location, incentives, basic services, utilities and infrastructure required or
to be made available for said entities.

SEC. 17. Investigation and Inquiries. Upon a written formal complaint made under oath, which on its face provides reasonable
basis to believe that some anomaly or irregularity might have been committed, the PEZA or the administrator of the ECOZONE
concerned, shall have the power to inquire into the conduct of firms or employees of the ECOZONE and to conduct
investigations, and for that purpose may subpoena witnesses, administer oaths, and compel the production of books, papers,
and other evidences: Provided, That to arrive at the truth, the investigator(s) may grant immunity from prosecution to any
person whose testimony or whose possessions of documents or other evidence is necessary or convenient to determine the
truth in any investigation conducted by him or under the authority of the PEZA or the administrator of the ECOZONE concerned.

SEC. 21. Development Strategy of the ECOZONE. - The strategy and priority of development of each ECOZONE established
pursuant to this Act shall be formulated by the PEZA, in coordination with the Department of Trade and Industry and the
National Economic and Development Authority; Provided, That such development strategy is consistent with the priorities of the
national government as outlined in the medium-term Philippine development plan. It shall be the policy of the government and
the PEZA to encourage and provide Incentives and facilitate private sector participation in the construction and operation of
public utilities and infrastructure in the ECOZONE, using any of the schemes allowed in Republic Act No. 6957 (the build-
operate-transfer law).

SEC. 22. Survey of Resources. The PEZA shall, in coordination with appropriate authorities and neighboring cities and

municipalities, immediately conduct a survey of the physical, natural assets and potentialities of the ECOZONE areas under its

jurisdiction.

SEC. 26. Domestic Sales. Goods manufactured by an ECOZONE enterprise shall be made available for immediate retail
sales in the domestic market, subject to payment of corresponding taxes on the raw materials and other regulations that may
be adopted by the Board of the PEZA.

However, in order to protect the domestic industry, there shall be a negative list of Industries that will be drawn up by the PEZA.
Enterprises engaged in the industries included in the negative list shall not be allowed to sell their products locally. Said
negative list shall be regularly updated by the PEZA.

The PEZA, in coordination with the Department of Trade and Industry and the Bureau of Customs, shall jointly issue the
necessary implementing rules and guidelines for the effective Implementation of this section.

SEC. 29. Eminent Domain. The areas comprising an ECOZONE may be expanded or reduced when necessary. For this
purpose, the government shall have the power to acquire, either by purchase, negotiation or condemnation proceedings, any
private lands within or adjacent to the ECOZONE for:

a. Consolidation of lands for zone development purposes;

b. Acquisition of right of way to the ECOZONE; and

c. The protection of watershed areas and natural assets valuable to the prosperity of the ECOZONE.

If in the establishment of a publicly-owned ECOZONE, any person or group of persons who has been occupying a parcel of
land within the Zone has to be evicted, the PEZA shall provide the person or group of persons concerned with proper
disturbance compensation: Provided, however, That in the case of displaced agrarian reform beneficiaries, they shall be entitled
to the benefits under the Comprehensive Agrarian Reform Law, including but not limited to Section 36 of Republic Act No. 3844,
in addition to a homelot in the relocation site and preferential employment in the project being undertaken.

SEC. 32. Shipping and Shipping Register. Private shipping and related business including private container terminals may
operate freely in the ECOZONE, subject only to such minimum reasonable regulations of local application which the PEZA may
prescribe.

The PEZA shall, in coordination with the Department of Transportation and Communications, maintain a shipping register for
each ECOZONE as a business register of convenience for ocean-going vessels and issue related certification.

Ships of all sizes, descriptions and nationalities shall enjoy access to the ports of the ECOZONE, subject only to such
reasonable requirement as may be prescribed by the PEZA In coordination with the appropriate agencies of the national
government.

SEC. 33. Protection of Environment. - The PEZA, in coordination with the appropriate agencies, shall take concrete and
appropriate steps and enact the proper measure for the protection of the local environment.

SEC. 34. Termination of Business. - Investors In the ECOZONE who desire to terminate business or operations shall comply
with such requirements and procedures which the PEZA shall set, particularly those relating to the clearing of debts. The assets
of the closed enterprise can be transferred and the funds con be remitted out of the ECOZONE subject to the rules, guidelines
and procedures prescribed jointly by the Bangko Sentral ng Pilipinas, the Department of Finance and the PEZA.

SEC. 35. Registration of Business Enterprises. - Business enterprises within a designated ECOZONE shall register with the
PEZA to avail of all incentives and benefits provided for in this Act.

SEC. 36. One Stop Shop Center. - The PEZA shall establish a one stop shop center for the purpose of facilitating the
registration of new enterprises in the ECOZONE. Thus, all appropriate government agencies that are Involved In registering,
licensing or issuing permits to investors shall assign their representatives to the ECOZONE to attend to Investors
requirements.

SEC. 39. Master Employment Contracts. - The PEZA, in coordination with the Department of Tabor and Employment, shall
prescribe a master employment contract for all ECOZONE enterprise staff members and workers, the terms of which provide
salaries and benefits not less than those provided under this Act, the Philippine Labor Code, as amended, and other relevant
issuances of the national government.

SEC. 41. Migrant Worker. - The PEZA, in coordination with the Department of Labor and Employment, shall promulgate
appropriate measures and programs leading to the expansion of the services of the ECOZONE to help the local governments
of nearby areas meet the needs of the migrant workers.

SEC. 42. Incentive Scheme. - An additional deduction equivalent to one- half (1/2) of the value of training expenses incurred in
developing skilled or unskilled labor or for managerial or other management development programs incurred by enterprises in
the ECOZONE can be deducted from the national government's share of three percent (3%) as provided In Section 24.

The PEZA, the Department of Labor and Employment, and the Department of Finance shall jointly make a review of the
incentive scheme provided In this section every two (2) years or when circumstances so warrant.

SEC. 43. Relationship with the Regional Development Council. - The PEZA shall determine the development goals for the
ECOZONE within the framework of national development plans, policies and goals, and the administrator shall, upon approval
by the PEZA Board, submit the ECOZONE plans, programs and projects to the regional development council for inclusion in
and as inputs to the overall regional development plan.

SEC. 44. Relationship with the Local Government Units. - Except as herein provided, the local government units comprising the
ECOZONE shall retain their basic autonomy and identity. The cities shall be governed by their respective charters and the
municipalities shall operate and function In accordance with Republic Act No. 7160, otherwise known as the Local Government

Code of 1991.

SEC. 45. Relationship of PEZA to Privately-Owned Industrial Estates. Privately-owned industrial estates shall retain their
autonomy and independence and shall be monitored by the PEZA for the implementation of incentives.

SEC. 46. Transfer of Resources. - The relevant functions of the Board of Investments over industrial estates and agri-export
processing estates shall be transferred to the PEZA. The resources of government-owned Industrial estates and similar bodies
except the Bases Conversion Development Authority and those areas identified under Republic Act No. 7227, are hereby
transferred to the PEZA as the holding agency. They are hereby detached from their mother agencies and attached to the PEZA
for policy, program and operational supervision.

The Boards of the affected government-owned industrial estates shall be phased out and only the management level and an
appropriate number of personnel shall be retained.
Government personnel whose services are not retained by the PEZA or any government office within the ECOZONE shall be
entitled to separation pay and such retirement and other benefits they are entitled to under the laws then in force at the time of
their separation: Provided, That in no case shall the separation pay be less than one and one-fourth (1 1/4) month of every year
of service.

The non-profit character of the EPZA under Presidential Decree No. 66 is not inconsistent with any of the powers, functions,
and responsibilities of the PEZA. The EPZAs non-profit character, including the EPZAs exemption from real property taxes,
must be deemed assumed by the PEZA.

In addition, the Local Government Code exempting instrumentalities of the national government from real property taxes was
already in force274 when the PEZAs charter was enacted in 1995. It would have been redundant to provide for the PEZAs
exemption in its charter considering that the PEZA is already exempt by virtue of Section 133(o) of the Local Government Code.

As for the EPZA, Commonwealth Act No. 470 or the Assessment Law was in force when the EPZAs charter was enacted.
Unlike the Local Government Code, Commonwealth Act No. 470 does not contain a provision specifically exempting
instrumentalities of the national government from payment of real property taxes.275 It was necessary to put an exempting
provision in the EPZAs charter.

Contrary to the PEZAs claim, however, Section 24 of the Special Economic Zone Act of 1995 is not a basis for the PEZAs
exemption. Section 24 of the Special Economic Zone Act of 1995 provides:chanroblesvirtuallawlibrary

Sec. 24. Exemption from National and Local Taxes. Except for real property taxes on land owned by developers, no taxes,
local and national, shall be imposed on business establishments operating within the ECOZONE. In lieu thereof, five percent
(5%) of the gross income earned by all business enterprises within the ECOZONE shall be paid and remitted as
follows:chanroblesvirtuallawlibrary

(a) Three percent (3%) to the National Government;

(b) Two percent (2%) which shall be directly remitted by the business establishments to the treasurer's office of the municipality
or city where the enterprise is located. (Emphasis supplied)

Tax exemptions provided under Section 24 apply only to business establishments operating within economic zones.
Considering that the PEZA is not a business establishment but an instrumentality performing governmental functions, Section
24 is inapplicable to the PEZA.

Also, contrary to the PEZAs claim, developers of economic zones, whether public or private developers, are liable for real
property taxes on lands they own. Section 24 does not distinguish between a public and private developer. Thus, courts
cannot distinguish.276 Unless the public developer is exempt under the Local Government Code or under its charter enacted
after the Local Government Codes effectivity, the public developer must pay real property taxes on their land.

At any rate, the PEZA cannot be taxed for real property taxes even if it acts as a developer or operator of special economic
zones. The PEZA is an instrumentality of the national government exempt from payment of real property taxes under Section
133(o) of the Local Government Code. As this court said in Manila International Airport Authority, there must be express
language in the law empowering local governments to tax national government instrumentalities. Any doubt whether such
power exists is resolved against local governments.277chanRoblesvirtualLawlibrary

V. (C)

Real properties under the PEZAs title are owned by the Republic of the Philippines

Under Section 234(a) of the Local Government Code, real properties owned by the Republic of the Philippines are exempt from
real property taxes:chanroblesvirtuallawlibrary

SEC. 234. Exemptions from Real Property Tax. The following are exempted from payment of real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use
thereof has been granted, for consideration or otherwise, to a taxable person[.]

Properties owned by the state are either property of public dominion or patrimonial property. Article 420 of the Civil Code of the
Philippines enumerates property of public dominion:chanroblesvirtuallawlibrary

Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks,
shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without belonging for public use, and are intended for some public service or for the
development of the national wealth.

Properties of public dominion are outside the commerce of man. These properties are exempt from levy, encumbrance or
disposition through public or private sale.278 As this court explained in Manila International Airport
Authority:chanroblesvirtuallawlibrary

Properties of public dominion, being for public use, are not subject to levy, encumbrance or disposition through public or private
sale. Any encumbrance, levy on execution or auction sale of any property of public dominion is void for being contrary to public
policy. Essential public services will stop if properties of public dominion are subject to encumbrances, foreclosures and auction
sale[.]279

On the other hand, all other properties of the state that are not intended for public use or are not intended for some public
service or for the development of the national wealth are patrimonial properties. Article 421 of the Civil Code of the Philippines
provides:chanroblesvirtuallawlibrary

Art. 421. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property.

Patrimonial properties are also properties of the state, but the state may dispose of its patrimonial property similar to private
persons disposing of their property. Patrimonial properties are within the commerce of man and are susceptible to prescription,
unless otherwise provided.280chanRoblesvirtualLawlibrary

In this case, the properties sought to be taxed are located in publicly owned economic zones. These economic zones are
property of public dominion. The City seeks to tax properties located within the Mactan Economic Zone,281 the site of which was
reserved by President Marcos under Proclamation No. 1811, Series of 1979. Reserved lands are lands of the public domain
set aside for settlement or public use, and for specific public purposes by virtue of a presidential proclamation.282 Reserved
lands are inalienable and outside the commerce of man,283 and remain property of the Republic until withdrawn from public use
either by law or presidential proclamation.284 Since no law or presidential proclamation has been issued withdrawing the site of
the Mactan Economic Zone from public use, the property remains reserved land.

As for the Bataan Economic Zone, the law consistently characterized the property as a port. Under Republic Act No. 5490,
Congress declared Mariveles, Bataan a principal port of entry285 to serve as site of a foreign trade zone where foreign and
domestic merchandise may be brought in without being subject to customs and internal revenue laws and regulations of the
Philippines.286 Section 4 of Republic Act No. 5490 provided that the foreign trade zone in Mariveles, Bataan shall at all times
remain to be owned by the Government:chanroblesvirtuallawlibrary

SEC. 4. Powers and Duties. The Foreign Trade Zone Authority shall have the following powers and duties:

a. To fix and delimit the site of the Zone which at all times remain to be owned by the Government, and which shall have
a contiguous and adequate area with well defined and policed boundaries, with adequate enclosures to segregate the
Zone from the customs territory for protection of revenues, together with suitable provisions for ingress and egress of
persons, conveyance, vessels and merchandise sufficient for the purpose of this Act[.] (Emphasis supplied)

The port in Mariveles, Bataan then became the Bataan Economic Zone under the Special Economic Zone Act of 1995.287
Republic Act No. 9728 then converted the Bataan Economic Zone into the Freeport Area of
Bataan.288chanRoblesvirtualLawlibrary

A port of entry, where imported goods are unloaded then introduced in the market for public consumption, is considered
property for public use. Thus, Article 420 of the Civil Code classifies a port as property of public dominion. The Freeport Area
of Bataan, where the government allows tax and duty-free importation of goods,289 is considered property of public dominion.
The Freeport Area of Bataan is owned by the state and cannot be taxed under Section 234(a) of the Local Government Code.

Properties of public dominion, even if titled in the name of an instrumentality as in this case, remain owned by the Republic of
the Philippines. If property registered in the name of an instrumentality is conveyed to another person, the property is
considered conveyed on behalf of the Republic of the Philippines. Book I, Chapter 12, Section 48 of the Administrative Code of
1987 provides:chanroblesvirtuallawlibrary

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the government is authorized by law to be
conveyed, the deed of conveyance shall be executed in behalf of the government by the following:

....

(2) For property belonging to the Republic of the Philippines, but titled in the name of any political subdivision or of any
corporate agency or instrumentality, by the executive head of the agency or instrumentality. (Emphasis supplied)

In Manila International Airport Authority, this court explained:chanroblesvirtuallawlibrary

[The exemption under Section 234(a) of the Local Government Code] should be read in relation with Section 133(o) of the
same Code, which prohibits local governments from imposing [t]axes, fess or charges of any kind on the National Government,
its agencies and instrumentalities x x x. The real properties owned by the Republic are titled either in the name of the
Republic itself or in the name of agencies or instrumentalities of the National Government. The Administrative Code allows real
property owned by the Republic to be titled in the name of agencies or instrumentalities of the national government. Such real
properties remained owned by the Republic of the Philippines and continue to be exempt from real estate tax.

The Republic may grant the beneficial use of its real property to an agency or instrumentality of the national government. This
happens when title of the real property is transferred to an agency or instrumentality even as the Republic remains the owner of
the real property. Such arrangement does not result in the loss of the tax exemption/ Section 234(a) of the Local Government
Code states that real property owned by the Republic loses its tax exemption only if the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable person. . . .290 (Emphasis in the original; italics supplied)

Even the PEZAs lands and buildings whose beneficial use have been granted to other persons may not be taxed with real
property taxes. The PEZA may only lease its lands and buildings to PEZA-registered economic zone enterprises and
entities.291 These PEZA-registered enterprises and entities, which operate within economic zones, are not subject to real
property taxes. Under Section 24 of the Special Economic Zone Act of 1995, no taxes, whether local or national, shall be
imposed on all business establishments operating within the economic zones:chanroblesvirtuallawlibrary

SEC. 24. Exemption from National and Local Taxes. Except for real property on land owned by developers, no taxes, local
and national, shall be imposed on business establishments operating within the ECOZONE. In lieu thereof, five percent (5%) of
the gross income earned by all business enterprises within the ECOZONE shall be paid and remitted as follows:

a. Three percent (3%) to the National Government;

b. Two percent (2%) which shall be directly remitted by the business establishments to the treasurers office of the municipality
or city where the enterprise is located.292(Emphasis supplied)

In lieu of revenues from real property taxes, the City of Lapu-Lapu collects two-fifths of 5% final tax on gross income paid by all
business establishments operating within the Mactan Economic Zone:chanroblesvirtuallawlibrary

SEC. 24. Exemption from National and Local Taxes. Except for real property on land owned by developers, no taxes, local
and national, shall be imposed on business establishments operating within the ECOZONE. In lieu thereof, five percent (5%) of
the gross income earned by all business enterprises within the ECOZONE shall be paid and remitted as follows:
a. Three percent (3%) to the National Government;

b. Two percent (2%) which shall be directly remitted by the business establishments to the treasurers office of the municipality
or city where the enterprise is located.293(Emphasis supplied)

For its part, the Province of Bataan collects a fifth of the 5% final tax on gross income paid by all business establishments
operating within the Freeport Area of Bataan:chanroblesvirtuallawlibrary

Section 6. Imposition of a Tax Rate of Five Percent (5%) on Gross Income Earned. - No taxes, local and national, shall be
imposed on business establishments operating within the FAB. In lieu thereof, said business establishments shall pay a five
percent (5%) final tax on their gross income earned in the following percentages:

(a) One per centum (1%) to the National Government;

(b) One per centum (1%) to the Province of Bataan;

(c) One per centum (1%) to the treasurer's office of the Municipality of Mariveles; and

(d) Two per centum (2%) to the Authority of the Freeport of Area of Bataan.294(Emphasis supplied)

Petitioners, therefore, are not deprived of revenues from the operations of economic zones within their respective territorial
jurisdictions. The national government ensured that local government units comprising economic zones shall retain their basic
autonomy and identity.295chanRoblesvirtualLawlibrary

All told, the PEZA is an instrumentality of the national government. Furthermore, the lands owned by the PEZA are real
properties owned by the Republic of the Philippines. The City of Lapu-Lapu and the Province of Bataan cannot collect real
property taxes from the PEZA.chanrobleslaw

WHEREFORE, the consolidated petitions are DENIED.

SO ORDERED.cralawlawlibrary

Carpio, (Chairperson), Del Castillo, Mendoza, and Reyes,*JJ., concur.


JENNY M. AGABON and G.R. No. 158693
VIRGILIO C. AGABON,
Petitioners, Present:

Davide, Jr., C.J.,


Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.
NATIONAL LABOR RELATIONS
COMMISSION (NLRC), RIVIERA
HOME IMPROVEMENTS, INC. Promulgated:
and VICENTE ANGELES,
Respondents. November 17, 2004
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for review seeks to reverse the decision [1] of the Court of Appeals dated January 23, 2003, in CA-G.R. SP No.
63017, modifying the decision of National Labor Relations Commission (NLRC) in NLRC-NCR Case No. 023442-00.

Private respondent Riviera Home Improvements, Inc. is engaged in the business of selling and installing ornamental and
construction materials. It employed petitioners Virgilio Agabon and Jenny Agabon as gypsum board and cornice installers on
January 2, 1992[2] until February 23, 1999 when they were dismissed for abandonment of work.

Petitioners then filed a complaint for illegal dismissal and payment of money claims [3] and on December 28, 1999, the
Labor Arbiter rendered a decision declaring the dismissals illegal and ordered private respondent to pay the monetary claims.
The dispositive portion of the decision states:

WHEREFORE, premises considered, We find the termination of the complainants illegal. Accordingly,
respondent is hereby ordered to pay them their backwages up to November 29, 1999 in the sum of:

1. Jenny M. Agabon - P56, 231.93


2. Virgilio C. Agabon - 56, 231.93

and, in lieu of reinstatement to pay them their separation pay of one (1) month for every year of service from
date of hiring up to November 29, 1999.

Respondent is further ordered to pay the complainants their holiday pay and service incentive leave pay for
the years 1996, 1997 and 1998 as well as their premium pay for holidays and rest days and Virgilio Agabons
13th month pay differential amounting to TWO THOUSAND ONE HUNDRED FIFTY (P2,150.00) Pesos, or the
aggregate amount of ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED SEVENTY EIGHT &
93/100 (P121,678.93) Pesos for Jenny Agabon, and ONE HUNDRED TWENTY THREE THOUSAND EIGHT
HUNDRED TWENTY EIGHT & 93/100 (P123,828.93) Pesos for Virgilio Agabon, as per attached computation
of Julieta C. Nicolas, OIC, Research and Computation Unit, NCR.

SO ORDERED.[4]

On appeal, the NLRC reversed the Labor Arbiter because it found that the petitioners had abandoned their work, and were not
entitled to backwages and separation pay. The other money claims awarded by the Labor Arbiter were also denied for lack of
evidence.[5]
Upon denial of their motion for reconsideration, petitioners filed a petition for certiorari with the Court of Appeals.

The Court of Appeals in turn ruled that the dismissal of the petitioners was not illegal because they had abandoned their
employment but ordered the payment of money claims. The dispositive portion of the decision reads:
WHEREFORE, the decision of the National Labor Relations Commission is REVERSED only insofar as it
dismissed petitioners money claims. Private respondents are ordered to pay petitioners holiday pay for four
(4) regular holidays in 1996, 1997, and 1998, as well as their service incentive leave pay for said years, and
to pay the balance of petitioner Virgilio Agabons 13th month pay for 1998 in the amount of P2,150.00.

SO ORDERED.[6]

Hence, this petition for review on the sole issue of whether petitioners were illegally dismissed.[7]

Petitioners assert that they were dismissed because the private respondent refused to give them assignments unless
they agreed to work on a pakyaw basis when they reported for duty on February 23, 1999. They did not agree on this
arrangement because it would mean losing benefits as Social Security System (SSS) members. Petitioners also claim that
private respondent did not comply with the twin requirements of notice and hearing.[8]

Private respondent, on the other hand, maintained that petitioners were not dismissed but had abandoned their work. [9] In fact,
private respondent sent two letters to the last known addresses of the petitioners advising them to report for work. Private
respondents manager even talked to petitioner Virgilio Agabon by telephone sometime in June 1999 to tell him about the new
assignment at Pacific Plaza Towers involving 40,000 square meters of cornice installation work. However, petitioners did not
report for work because they had subcontracted to perform installation work for another company. Petitioners also demanded
for an increase in their wage to P280.00 per day. When this was not granted, petitioners stopped reporting for work and filed the
illegal dismissal case.[10]
It is well-settled that findings of fact of quasi-judicial agencies like the NLRC are accorded not only respect but even finality if
the findings are supported by substantial evidence. This is especially so when such findings were affirmed by the Court of
Appeals.[11] However, if the factual findings of the NLRC and the Labor Arbiter are conflicting, as in this case, the reviewing court
may delve into the records and examine for itself the questioned findings.[12]

Accordingly, the Court of Appeals, after a careful review of the facts, ruled that petitioners dismissal was for a just
cause. They had abandoned their employment and were already working for another employer.
To dismiss an employee, the law requires not only the existence of a just and valid cause but also enjoins the employer to give
the employee the opportunity to be heard and to defend himself. [13] Article 282 of the Labor Code enumerates the just causes
for termination by the employer: (a) serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or the latters representative in connection with the employees work; (b) gross and habitual neglect by the employee of
his duties; (c) fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized
representative; (d) commission of a crime or offense by the employee against the person of his employer or any immediate
member of his family or his duly authorized representative; and (e) other causes analogous to the foregoing.
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. [14] It is a form of neglect of
duty, hence, a just cause for termination of employment by the employer. [15] For a valid finding of abandonment, these two
factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear
intention to sever employer-employee relationship, with the second as the more determinative factor which is manifested by
overt acts from which it may be deduced that the employees has no more intention to work. The intent to discontinue the
employment must be shown by clear proof that it was deliberate and unjustified.[16]
In February 1999, petitioners were frequently absent having subcontracted for an installation work for another company.
Subcontracting for another company clearly showed the intention to sever the employer-employee relationship with private
respondent. This was not the first time they did this. In January 1996, they did not report for work because they were working
for another company. Private respondent at that time warned petitioners that they would be dismissed if this happened again.
Petitioners disregarded the warning and exhibited a clear intention to sever their employer-employee relationship. The record of
an employee is a relevant consideration in determining the penalty that should be meted out to him.[17]

In Sandoval Shipyard v. Clave,[18] we held that an employee who deliberately absented from work without leave or permission
from his employer, for the purpose of looking for a job elsewhere, is considered to have abandoned his job. We should apply
that rule with more reason here where petitioners were absent because they were already working in another company.
The law imposes many obligations on the employer such as providing just compensation to workers, observance of the
procedural requirements of notice and hearing in the termination of employment. On the other hand, the law also recognizes
the right of the employer to expect from its workers not only good performance, adequate work and diligence, but also good
conduct[19] and loyalty. The employer may not be compelled to continue to employ such persons whose continuance in the
service will patently be inimical to his interests.[20]

After establishing that the terminations were for a just and valid cause, we now determine if the procedures for dismissal were
observed.

The procedure for terminating an employee is found in Book VI, Rule I, Section 2(d) of the Omnibus Rules
Implementing the Labor Code:

Standards of due process: requirements of notice. In all cases of termination of employment, the
following standards of due process shall be substantially observed:

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and
giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if
the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the
evidence presented against him; and

(c) A written notice of termination served on the employee indicating that upon due consideration of
all the circumstances, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employees last known address.

Dismissals based on just causes contemplate acts or omissions attributable to the employee while dismissals based
on authorized causes involve grounds under the Labor Code which allow the employer to terminate employees. A termination
for an authorized cause requires payment of separation pay. When the termination of employment is declared illegal,
reinstatement and full backwages are mandated under Article 279. If reinstatement is no longer possible where the dismissal
was unjust, separation pay may be granted.

Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee two
written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment: a
notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard and after hearing or
opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under
Articles 283 and 284, the employer must give the employee and the Department of Labor and Employment written notices 30
days prior to the effectivity of his separation.

From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause under Article 282 of the
Labor Code, for an authorized cause under Article 283, or for health reasons under Article 284, and due process was observed;
(2) the dismissal is without just or authorized cause but due process was observed; (3) the dismissal is without just or
authorized cause and there was no due process; and (4) the dismissal is for just or authorized cause but due process was not
observed.

In the first situation, the dismissal is undoubtedly valid and the employer will not suffer any liability.
In the second and third situations where the dismissals are illegal, Article 279 mandates that the employee is entitled
to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other
benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual
reinstatement.

In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate
the dismissal. However, the employer should be held liable for non-compliance with the procedural requirements of due
process.

The present case squarely falls under the fourth situation. The dismissal should be upheld because it was established that the
petitioners abandoned their jobs to work for another company. Private respondent, however, did not follow the notice
requirements and instead argued that sending notices to the last known addresses would have been useless because they did
not reside there anymore. Unfortunately for the private respondent, this is not a valid excuse because the law mandates the
twin notice requirements to the employees last known address. [21] Thus, it should be held liable for non-compliance with the
procedural requirements of due process.

A review and re-examination of the relevant legal principles is appropriate and timely to clarify the various rulings on
employment termination in the light of Serrano v. National Labor Relations Commission.[22]

Prior to 1989, the rule was that a dismissal or termination is illegal if the employee was not given any notice. In the 1989 case
of Wenphil Corp. v. National Labor Relations Commission,[23] we reversed this long-standing rule and held that the dismissed
employee, although not given any notice and hearing, was not entitled to reinstatement and backwages because the dismissal
was for grave misconduct and insubordination, a just ground for termination under Article 282. The employee had a violent
temper and caused trouble during office hours, defying superiors who tried to pacify him. We concluded that reinstating the
employee and awarding backwages may encourage him to do even worse and will render a mockery of the rules of discipline
that employees are required to observe.[24] We further held that:

Under the circumstances, the dismissal of the private respondent for just cause should be maintained. He
has no right to return to his former employment.

However, the petitioner must nevertheless be held to account for failure to extend to private
respondent his right to an investigation before causing his dismissal. The rule is explicit as above discussed.
The dismissal of an employee must be for just or authorized cause and after due process. Petitioner
committed an infraction of the second requirement. Thus, it must be imposed a sanction for its failure to give
a formal notice and conduct an investigation as required by law before dismissing petitioner from
employment. Considering the circumstances of this case petitioner must indemnify the private respondent the
amount of P1,000.00. The measure of this award depends on the facts of each case and the gravity of the
omission committed by the employer.[25]

The rule thus evolved: where the employer had a valid reason to dismiss an employee but did not follow the due
process requirement, the dismissal may be upheld but the employer will be penalized to pay an indemnity to the employee. This
became known as the Wenphil or Belated Due Process Rule.

On January 27, 2000, in Serrano, the rule on the extent of the sanction was changed. We held that the violation by the
employer of the notice requirement in termination for just or authorized causes was not a denial of due process that will nullify
the termination. However, the dismissal is ineffectual and the employer must pay full backwages from the time of termination
until it is judicially declared that the dismissal was for a just or authorized cause.

The rationale for the re-examination of the Wenphil doctrine in Serrano was the significant number of cases involving
dismissals without requisite notices. We concluded that the imposition of penalty by way of damages for violation of the notice
requirement was not serving as a deterrent. Hence, we now required payment of full backwages from the time of dismissal until
the time the Court finds the dismissal was for a just or authorized cause.

Serrano was confronting the practice of employers to dismiss now and pay later by imposing full backwages.

We believe, however, that the ruling in Serrano did not consider the full meaning of Article 279 of the Labor Code
which states:
ART. 279. Security of Tenure. In cases of regular employment, the employer shall not terminate the services
of an employee except for a just cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and
to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

This means that the termination is illegal only if it is not for any of the justified or authorized causes provided by law.
Payment of backwages and other benefits, including reinstatement, is justified only if the employee was unjustly dismissed.

The fact that the Serrano ruling can cause unfairness and injustice which elicited strong dissent has prompted us to
revisit the doctrine.

To be sure, the Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral
principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as
conceived by our entire history. Due process is that which comports with the deepest notions of what is fair and right and just.
[26]
It is a constitutional restraint on the legislative as well as on the executive and judicial powers of the government provided by
the Bill of Rights.

Due process under the Labor Code, like Constitutional due process, has two aspects: substantive, i.e., the valid and
authorized causes of employment termination under the Labor Code; and procedural, i.e., the manner of dismissal. Procedural
due process requirements for dismissal are found in the Implementing Rules of P.D. 442, as amended, otherwise known as the
Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9 and 10. [27] Breaches of
these due process requirements violate the Labor Code. Therefore statutory due process should be differentiated from failure to
comply with constitutional due process.

Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil or
administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees
from being unjustly terminated without just cause after notice and hearing.

In Sebuguero v. National Labor Relations Commission,[28] the dismissal was for a just and valid cause but the
employee was not accorded due process. The dismissal was upheld by the Court but the employer was sanctioned. The
sanction should be in the nature of indemnification or penalty, and depends on the facts of each case and the gravity of the
omission committed by the employer.

In Nath v. National Labor Relations Commission,[29] it was ruled that even if the employee was not given due process,
the failure did not operate to eradicate the just causes for dismissal. The dismissal being for just cause, albeit without due
process, did not entitle the employee to reinstatement, backwages, damages and attorneys fees.

Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services, Inc. v. National Labor Relations
Commission,[30] which opinion he reiterated in Serrano, stated:

C. Where there is just cause for dismissal but due process has not been properly observed by an
employer, it would not be right to order either the reinstatement of the dismissed employee or the payment of
backwages to him. In failing, however, to comply with the procedure prescribed by law in terminating the
services of the employee, the employer must be deemed to have opted or, in any case, should be made
liable, for the payment of separation pay. It might be pointed out that the notice to be given and the hearing to
be conducted generally constitute the two-part due process requirement of law to be accorded to the
employee by the employer. Nevertheless, peculiar circumstances might obtain in certain situations where to
undertake the above steps would be no more than a useless formality and where, accordingly, it would not be
imprudent to apply the res ipsa loquitur rule and award, in lieu of separation pay, nominal damages to the
employee. x x x.[31]

After carefully analyzing the consequences of the divergent doctrines in the law on employment termination, we
believe that in cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, the
better rule is to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal was for just cause but
imposing sanctions on the employer. Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing so, this
Court would be able to achieve a fair result by dispensing justice not just to employees, but to employers as well.

The unfairness of declaring illegal or ineffectual dismissals for valid or authorized causes but not complying with statutory due
process may have far-reaching consequences.

This would encourage frivolous suits, where even the most notorious violators of company policy are rewarded by invoking due
process. This also creates absurd situations where there is a just or authorized cause for dismissal but a procedural infirmity
invalidates the termination. Let us take for example a case where the employee is caught stealing or threatens the lives of his
co-employees or has become a criminal, who has fled and cannot be found, or where serious business losses demand that
operations be ceased in less than a month. Invalidating the dismissal would not serve public interest. It could also discourage
investments that can generate employment in the local economy.

The constitutional policy to provide full protection to labor is not meant to be a sword to oppress employers. The
commitment of this Court to the cause of labor does not prevent us from sustaining the employer when it is in the right, as in
this case.[32] Certainly, an employer should not be compelled to pay employees for work not actually performed and in fact
abandoned.

The employer should not be compelled to continue employing a person who is admittedly guilty of misfeasance or malfeasance
and whose continued employment is patently inimical to the employer. The law protecting the rights of the laborer authorizes
neither oppression nor self-destruction of the employer.[33]

It must be stressed that in the present case, the petitioners committed a grave offense, i.e., abandonment, which, if the
requirements of due process were complied with, would undoubtedly result in a valid dismissal.

An employee who is clearly guilty of conduct violative of Article 282 should not be protected by the Social Justice Clause of the
Constitution. Social justice, as the term suggests, should be used only to correct an injustice. As the eminent Justice Jose P.
Laurel observed, social justice must be founded on the recognition of the necessity of interdependence among diverse
units of a society and of the protection that should be equally and evenly extended to all groups as a combined force
in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health,
comfort, and quiet of all persons, and of bringing about the greatest good to the greatest number.[34]

This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and related cases. Social
justice is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.

Justice Isagani Cruz strongly asserts the need to apply a balanced approach to labor-management relations and
dispense justice with an even hand in every case:

We have repeatedly stressed that social justice or any justice for that matter is for the deserving, whether he
be a millionaire in his mansion or a pauper in his hovel. It is true that, in case of reasonable doubt, we are to
tilt the balance in favor of the poor to whom the Constitution fittingly extends its sympathy and compassion.
But never is it justified to give preference to the poor simply because they are poor, or reject the rich simply
because they are rich, for justice must always be served for the poor and the rich alike, according to the
mandate of the law.[35]

Justice in every case should only be for the deserving party. It should not be presumed that every case of illegal dismissal
would automatically be decided in favor of labor, as management has rights that should be fully respected and enforced by this
Court. As interdependent and indispensable partners in nation-building, labor and management need each other to foster
productivity and economic growth; hence, the need to weigh and balance the rights and welfare of both the employee and
employer.

Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the
dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his
statutory rights, as ruled in Reta v. National Labor Relations Commission.[36] The indemnity to be imposed should be stiffer to
discourage the abhorrent practice of dismiss now, pay later, which we sought to deter in the Serrano ruling. The sanction should
be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special consideration the
gravity of the due process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which has been violated or invaded
by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by
him.[37]

As enunciated by this Court in Viernes v. National Labor Relations Commissions,[38] an employer is liable to pay indemnity in the
form of nominal damages to an employee who has been dismissed if, in effecting such dismissal, the employer fails to comply
with the requirements of due process. The Court, after considering the circumstances therein, fixed the indemnity at P2,590.50,
which was equivalent to the employees one month salary. This indemnity is intended not to penalize the employer but to
vindicate or recognize the employees right to statutory due process which was violated by the employer.[39]

The violation of the petitioners right to statutory due process by the private respondent warrants the payment of indemnity in the
form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account
the relevant circumstances.[40] Considering the prevailing circumstances in the case at bar, we deem it proper to fix it at
P30,000.00. We believe this form of damages would serve to deter employers from future violations of the statutory due
process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the
latter under the Labor Code and its Implementing Rules.

Private respondent claims that the Court of Appeals erred in holding that it failed to pay petitioners holiday pay, service incentive
leave pay and 13th month pay.

We are not persuaded.

We affirm the ruling of the appellate court on petitioners money claims. Private respondent is liable for petitioners
holiday pay, service incentive leave pay and 13th month pay without deductions.

As a general rule, one who pleads payment has the burden of proving it. Even where the employee must allege non-payment,
the general rule is that the burden rests on the employer to prove payment, rather than on the employee to prove non-payment.
The reason for the rule is that the pertinent personnel files, payrolls, records, remittances and other similar documents which
will show that overtime, differentials, service incentive leave and other claims of workers have been paid are not in the
possession of the worker but in the custody and absolute control of the employer.[41]

In the case at bar, if private respondent indeed paid petitioners holiday pay and service incentive leave pay, it could have easily
presented documentary proofs of such monetary benefits to disprove the claims of the petitioners. But it did not, except with
respect to the 13th month pay wherein it presented cash vouchers showing payments of the benefit in the years disputed.
[42]
Allegations by private respondent that it does not operate during holidays and that it allows its employees 10 days leave with
pay, other than being self-serving, do not constitute proof of payment. Consequently, it failed to discharge the onus
probandi thereby making it liable for such claims to the petitioners.
Anent the deduction of SSS loan and the value of the shoes from petitioner Virgilio Agabons 13 th month pay, we find the same
to be unauthorized. The evident intention of Presidential Decree No. 851 is to grant an additional income in the form of the
13th month pay to employees not already receiving the same[43] so as to further protect the level of real wages from the ravages
of world-wide inflation.[44] Clearly, as additional income, the 13th month pay is included in the definition of wage under Article
97(f) of the Labor Code, to wit:

(f) Wage paid to any employee shall mean the remuneration or earnings, however designated, capable of
being expressed in terms of money whether fixed or ascertained on a time, task, piece , or commission basis,
or other method of calculating the same, which is payable by an employer to an employee under a written or
unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and
includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other
facilities customarily furnished by the employer to the employee

from which an employer is prohibited under Article 113[45] of the same Code from making any deductions without the employees
knowledge and consent. In the instant case, private respondent failed to show that the deduction of the SSS loan and the value
of the shoes from petitioner Virgilio Agabons 13th month pay was authorized by the latter. The lack of authority to deduct is
further bolstered by the fact that petitioner Virgilio Agabon included the same as one of his money claims against private
respondent.
The Court of Appeals properly reinstated the monetary claims awarded by the Labor Arbiter ordering the private
respondent to pay each of the petitioners holiday pay for four regular holidays from 1996 to 1998, in the amount of P6,520.00,
service incentive leave pay for the same period in the amount of P3,255.00 and the balance of Virgilio Agabons thirteenth
month pay for 1998 in the amount of P2,150.00.

WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Court of Appeals dated January 23, 2003,
in CA-G.R. SP No. 63017, finding that petitioners Jenny and Virgilio Agabon abandoned their work, and ordering private
respondent to pay each of the petitioners holiday pay for four regular holidays from 1996 to 1998, in the amount of P6,520.00,
service incentive leave pay for the same period in the amount of P3,255.00 and the balance of Virgilio Agabons thirteenth
month pay for 1998 in the amount of P2,150.00 is AFFIRMED with the MODIFICATION that private respondent Riviera Home
Improvements, Inc. is further ORDERED to pay each of the petitioners the amount of P30,000.00 as nominal damages for non-
compliance with statutory due process.

No costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 178552 October 5, 2010

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

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G.R. No. 178554

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez and Secretary
General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive
Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting
Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO
PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his
capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of
Staff, Respondents.

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G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY,
EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY),
SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS
NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE,
HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA,
RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA
LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO,
RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO
GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT
OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE
BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

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G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la
Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her
own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA
EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and
also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer
M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado,
OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARTY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO
GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT
OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE
BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

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G.R. No. 179157

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE
DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO
OSMEA III and WIGBERTO E. TAADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), Respondents.

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G.R. No. 179461

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA


SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG
MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST),
LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA
REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK),
SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK),
STARTER, LOSOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA,
TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE
CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO
GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT
OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE
BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

DECISION

CARPIO MORALES, J.:

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

Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement Network, Inc., a non-
government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari
and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National
Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR),
represented by their respective officers3 who are also bringing the action in their capacity as citizens, filed a petition for certiorari
and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for
Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of
Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of
Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their respective officers,4 and
joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister
Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna,
Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre
filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-
Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church Peoples Response (PCPR), which were represented by their respective officers5who are also bringing
action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),6Senator Ma.
Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed
as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the
Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and prohibition
docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of the filing of the
petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and
Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior
and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except
that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support
agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation,
Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine
Center on Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule
65 of the Rules of Court is clear:

Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functionshas acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
(Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of
their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual
case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis mota of the case.10

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the
last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.11

Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on
standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional
questions.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the
law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a
result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about
to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties
by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some
actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially
the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as
citizens and taxpayers.

While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that petitioner has
experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation
belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of
harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA
9372.

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

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have
yet to show any connection between the purported "surveillance" and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and
Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action
of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the
National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of proscription without
following the procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the
limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that
of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general
notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally
known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be questionable.

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

No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to
substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its
effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed
"link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in
direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America17 (US) and the
European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court
takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo
Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations.19 Such statement
notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to
the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual,
prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro
Casio, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume peace negotiations with the NDF by
removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as
foreign terrorist organizations. Considering the policy statement of the Aquino Administration21 of resuming peace talks with the
NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.

More important, there are other parties not before the Court with direct and specific interests in the questions being raised.22 Of
recent development is the filing of the first case for proscription under Section 1723 of RA 9372 by the Department of Justice
before the Basilan Regional Trial Court against the Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any
link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion
charges against them.

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

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

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot
be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution.
The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members
with standing.27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its
constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention
effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus
standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has
not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator
Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to
the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently
state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching
implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be charged.
Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners
must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise
would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when
there is an exercise of the spending or taxing power of Congress,28 whereas citizen standing must rest on direct and personal
interest in the proceeding.29

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

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi.
Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

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

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

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

As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual cases or
controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.32

Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:

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

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to
be premature as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails to allege that an application for a
license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable
controversy, and merely wheedles the Court to rule on a hypothetical problem.35

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to cite any specific
affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on
Elections,37 to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict
between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real
litigants.

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

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must
be sufficient facts to enable the Court to intelligently adjudicate the issues.38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required
to await and undergo a criminal prosecution as the sole means of seeking relief."40 The plaintiffs therein filed an action before a
federal court to assail the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1), 41 proscribing the provision
of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they
intended to provide support for the humanitarian and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the
challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable
controversy.42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid
constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a
real and existing one.

Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way
approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion,
which is not its function.43

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original
jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend
to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of
ripeness.44

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the
surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be
abused.45 Allegations of abuse must be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation
are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism46under RA 9372 in
that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an
unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the
present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the
void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free
speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and Corrupt
Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness
doctrines have special application only to free-speech cases," and are "not appropriate for testing the validity of penal
statutes."50 It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not vague.51

While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial invalidation of criminal
statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject
election offense53 under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in
precise language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in the Estradacase, where the
Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of
plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as
opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do
not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at
length in the main Estrada decision, reads:

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

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very
existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing
the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court
ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial
challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set
of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces"
statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom
application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to
parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile
abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

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

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a
facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation
(under a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms.58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute
prohibits and will accordingly refrain from that behavior, even though some of it is protected.59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facialinvalidation is an
examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but
also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally
protected speech or activities.60

Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth doctrines, as
grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech,
the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale is inapplicable to plain penal
statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid
and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.63

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an
on-its-face invalidation of penal statutes x x x may not be allowed."64

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

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and,
owing to the given rationale of a facial challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected
speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.

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

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

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the
definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent chargeagainst them

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

American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be examined in
light of the specific facts of the case at hand and not with regard to the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally
vague, developing a doctrine hailed as "among the most important guarantees of liberty under law."75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the
constitutionality of criminal statutes. In at least three cases,76 the Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the
Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three
cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute,
unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity

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

In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of
"unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some form of expression protected by
the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the
operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede
to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative
component of the prohibition cannot recategorize the unprotected conduct into a protected speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element
of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to
launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful
transaction. An analogy in one U.S. case78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of
race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be
analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish
socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present
case where the expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or
writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or
printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically
impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies
deemed injurious to society.79 (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited
conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as
applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await
and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372.
Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds
litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios
nor allows the courts to be used as an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,


vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod City, and ROSALIE
JAYPE-GARCIA, for herself and in behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all
surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93 percent of a total population of
93.3 million adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as their own
bodies just as Christ loved the church and gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of
violence against Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that, for the
years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted Republic Act (R.A.)
No. 9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their children (VAWC)
perpetrated by women's intimate partners, i.e, husband; former husband; or any person who has or had a sexual or dating
relationship, or with whom the woman has a common child.5 The law provides for protection orders from the barangay and the
courts to prevent the commission of further acts of VAWC; and outlines the duties and responsibilities of barangay officials, law
enforcers, prosecutors and court personnel, social workers, health care providers, and other local government officials in
responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the equal protection and due
process clauses, and an undue delegation of judicial power to barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary
Protection Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of
physical abuse; emotional, psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years her senior. They
have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved around her husband. On the other hand,
petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately isolated her from her friends. When she took up law, and even
when she was already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay at
home. He was often jealous of the fact that his attractive wife still catches the eye of some men, at one point threatening that he
would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank, Bacolod City, who is the
godmother of one of their sons. Petitioner admitted to the affair when private respondent confronted him about it in 2004. He
even boasted to the household help about his sexual relations with said bank manager. Petitioner told private respondent,
though, that he was just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally wounded. In one of their
quarrels, petitioner grabbed private respondent on both arms and shook her with such force that caused bruises and
hematoma. At another time, petitioner hit private respondent forcefully on the lips that caused some bleeding. Petitioner
sometimes turned his ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom he
blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When private respondent decided to
leave petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner would beat her up. Even the small
boys are aware of private respondent's sufferings. Their 6-year-old son said that when he grows up, he would beat up his father
because of his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On December 17, 2005, while at
home, she attempted suicide by cutting her wrist. She was found by her son bleeding on the floor. Petitioner simply fled the
house instead of taking her to the hospital. Private respondent was hospitalized for about seven (7) days in which time
petitioner never bothered to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file charges against the bank
manager, petitioner got angry with her for jeopardizing the manager's job. He then packed his things and told private
respondent that he was leaving her for good. He even told private respondent's mother, who lives with them in the family home,
that private respondent should just accept his extramarital affair since he is not cohabiting with his paramour and has not sired
a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her children from her and
deprive her of financial support. Petitioner had previously warned her that if she goes on a legal battle with him, she would not
get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the President of three
corporations 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading Corporation of which he and
private respondent are both stockholders. In contrast to the absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of 20,000.00 from one corporation only, the Negros Rotadrill Corporation.
Household expenses amounting to not less than 200,000.00 a month are paid for by private respondent through the use of
credit cards, which, in turn, are paid by the same corporation together with the bills for utilities.15

On the other hand, petitioner receives a monthly salary of 60,000.00 from Negros Rotadrill Corporation, and enjoys unlimited
cash advances and other benefits in hundreds of thousands of pesos from the corporations.16 After private respondent
confronted him about the affair, petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of
the corporations are conducted, thereby depriving her of access to full information about said businesses. Until the filing of the
petition a quo, petitioner has not given private respondent an accounting of the businesses the value of which she had helped
raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private respondent and her children
exists or is about to recur, the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within 24 hours from
receipt of the Temporary Restraining Order and if he refuses, ordering that he be removed by police officers from the
conjugal dwelling; this order is enforceable notwithstanding that the house is under the name of 236 Realty Holdings
Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent herein)
to enter the conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides to return to
the conjugal dwelling to remove things, the Petitioner shall be assisted by police officers when re-entering the family
home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of the danger
that the Respondent will attempt to take her children from her when he arrives from Manila and finds out about this
suit.

b) To stay away from the petitioner and her children, mother and all her household help and driver from a distance of
1,000 meters, and shall not enter the gate of the subdivision where the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly or indirectly, or
through other persons, or contact directly or indirectly her children, mother and household help, nor send gifts, cards,
flowers, letters and the like. Visitation rights to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering the Philippine
National Police Firearms and Explosives Unit and the Provincial Director of the PNP to cancel all the Respondent's
firearm licenses. He should also be ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house for them, and educational
and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from all the corporations
from 1 January 2006 up to 31 March 2006, which himself and as President of the corporations and his Comptroller,
must submit to the Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall be reported to
the court by the Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of Indirect
Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and considering the financial
resources of the Respondent and his threat that if the Petitioner sues she will not get a single centavo, the
Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two
sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended TPO,20 effective for thirty
(30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and the Starex Van
which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Paraaque, the continued use of the
Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty Thousand Pesos (Php
150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month until the matter of
support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for Renewal of the
TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1) comply with the three-day notice rule, and
(2) contain a notice of hearing. He further asked that the TPO be modified by (1) removing one vehicle used by private
respondent and returning the same to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the
amount of the bond from 5,000,000.00 to a more manageable level at 100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following modifications prayed for by
private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie and her children to
Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in Pitimini St.,
Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove Respondent from the
conjugal dwelling within eight (8) hours from receipt of the Temporary Protection Order by his counsel, and that he
cannot return until 48 hours after the petitioners have left, so that the petitioner Rosalie and her representatives can
remove things from the conjugal home and make an inventory of the household furniture, equipment and other things
in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00 for clothes of the
three petitioners (sic) children within 24 hours from receipt of the Temporary Protection Order by his counsel,
otherwise be declared in indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court within 24 hours from
receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation of proof of payment of
such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with the TPO; and committed
new acts of harassment against her and their children, private respondent filed another application24 for the issuance of a TPO
ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan Patrol and Starex Van used by private respondent and the children. A
writ of replevin was served upon private respondent by a group of six or seven policemen with long firearms that scared the two
small boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap him, which incident
traumatized the boy resulting in his refusal to go back to school. On another occasion, petitioner allegedly grabbed their
daughter, Jo-Ann, by the arm and threatened her.26 The incident was reported to the police, and Jo-Ann subsequently filed a
criminal complaint against her father for violation of R.A. 7610, also known as the "Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the conjugal home of a
complaint for kidnapping and illegal detention against private respondent. This came about after private respondent, armed with
a TPO, went to said home to get her and her children's belongings. Finding some of her things inside a housemaid's (Sheryl
Jamola) bag in the maids' room, private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts of violence against the
offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any form with the
offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents, from all the Petitioners
Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype, cook Novelita
Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a distance of 1,000 meters, and shall not enter the gate of the subdivision
where the Petitioners are temporarily residing, as well as from the schools of the three children; Furthermore, that
respondent shall not contact the schools of the children directly or indirectly in any manner including, ostensibly to pay
for their tuition or other fees directly, otherwise he will have access to the children through the schools and the TPO
will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for rental for the period
from August 6 to September 6, 2006; and support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van with Plate No. FFD
991 and should the respondent fail to deliver said vehicles, respondent is ordered to provide the petitioner another
vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal assets, or those real
properties in the name of Jesus Chua Garcia only and those in which the conjugal partnership of gains of the
Petitioner Rosalie J. Garcia and respondent have an interest in, especially the conjugal home located in No. 14,
Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which are conjugal assets or those in which the
conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in
Annexes "I," "I-1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the transfer, sale, encumbrance or disposition of these above-
cited properties to any person, entity or corporation without the personal presence of petitioner Rosalie J. Garcia, who
shall affix her signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that her
signature will be forged in order to effect the encumbrance or sale of these properties to defraud her or the conjugal
partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten (10) days, and gave
petitioner a period of five (5) days within which to show cause why the TPO should not be renewed, extended, or modified.
Upon petitioner's manifestation,30 however, that he has not received a copy of private respondent's motion to modify/renew the
TPO, the trial court directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO dated August 23, 2006.
The pertinent portion is quoted hereunder:
xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection Order issued on August
23, 2006 is hereby renewed and extended for thirty (30) days and continuously extended and renewed for thirty (30) days, after
each expiration, until further orders, and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required comment to private
respondent's motion for renewal of the TPO arguing that it would only be an "exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a petition34 for prohibition (CA-
G.R. CEB-SP. No. 01698), with prayer for injunction and temporary restraining order, challenging (1) the constitutionality of R.A.
9262 for being violative of the due process and the equal protection clauses, and (2) the validity of the modified TPO issued in
the civil case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against the enforcement of the
TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure of petitioner to raise the
constitutional issue in his pleadings before the trial court in the civil case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial court constituted a
collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolution37 dated August 14, 2007,
petitioner is now before us alleging that

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE
DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE
TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262, we shall first tackle the
propriety of the dismissal by the appellate court of the petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in the pleadings,
ordinarily it may not be raised in the trial, and if not raised in the trial court, it will not be considered on appeal.39 Courts will not
anticipate a question of constitutional law in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City, petitioner argues that the
Family Court has limited authority and jurisdiction that is "inadequate to tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional Trial Courts. Under R.A.
8369, otherwise known as the "Family Courts Act of 1997," family courts have exclusive original jurisdiction to hear and decide
cases of domestic violence against women and children.42 In accordance with said law, the Supreme Court designated from
among the branches of the Regional Trial Courts at least one Family Court in each of several key cities identified.43 To achieve
harmony with the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as Family
Courts shall have original and exclusive jurisdiction over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over
cases of violence against women and their children under this law. In the absence of such court in the place where the offense
was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the
option of the complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a court of general
original jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the judicial power to determine what are the valid and
binding laws by the criterion of their conformity to the fundamental law."46The Constitution vests the power of judicial review or
the power to declare the constitutionality or validity of a law, treaty, international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v.
CA48 that, "plainly the Constitution contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.

xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been raised at the earliest
opportunity in his Opposition to the petition for protection order before the RTC of Bacolod City, which had jurisdiction to
determine the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down a new kind of
procedure requiring the respondent to file an opposition to the petition and not an answer.49 Thus:

SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he himself shall verify. It must
be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not
be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but any cause of
action which could be the subject thereof may be litigated in a separate civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and third-party complaint are
to be excluded from the opposition, the issue of constitutionality cannot likewise be raised therein. A counterclaim is defined as
any claim for money or other relief which a defending party may have against an opposing party.50 A cross-claim, on the other
hand, is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of
the original action or of a counterclaim therein.51Finally, a third-party complaint is a claim that a defending party may, with leave
of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of
his opponent's claim.52As pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited
from being raised in the opposition in view of the familiar maxim expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right of private respondent to
a protection order is founded solely on the very statute the validity of which is being attacked53 by petitioner who has sustained,
or will sustain, direct injury as a result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and
purposes, a valid cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred petitioner from raising the same
in his Opposition. The question relative to the constitutionality of a statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine
legal issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue an order containing
the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent possible,
within the 30-day period of the effectivity of the temporary protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary, Section 26 (b) of A.M. No.
04-10-11-SC provides that if a temporary protection order issued is due to expire, the trial court may extend or renew the said
order for a period of thirty (30) days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without necessarily running afoul of the very purpose for
the adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with prayer for injunction and
temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded upon an honest belief that if he
finds succor in a superior court, he could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC
expressly disallows the filing of a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the
trial court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO, the amended
TPOs and other orders pursuant thereto was improper, and it effectively hindered the case from taking its normal course in an
expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover, if the appeal of a
judgment granting permanent protection shall not stay its enforcement,55 with more reason that a TPO, which is valid only for
thirty (30) days at a time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the
community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even
though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary
powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of the case. It bears
stressing, however, that protection orders are granted ex parte so as to protect women and their children from acts of violence.
To issue an injunction against such orders will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and again, discharged our solemn duty as final arbiter of
constitutional issues, and with more reason now, in view of private respondent's plea in her Comment59 to the instant Petition
that we should put the challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could very well be
committed by either the husband or the wife, gender alone is not enough basis to deprive the husband/father of the remedies
under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262, reveals that while the sponsor,
Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had originally proposed what she called a "synthesized
measure"62 an amalgamation of two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in
Intimate Relationships Act"63 providing protection to "all family members, leaving no one in isolation" but at the same time
giving special attention to women as the "usual victims" of violence and abuse,64 nonetheless, it was eventually agreed that
men be denied protection under the same measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic violence apart from against women as well as other members
of the household, including children or the husband, they fear that this would weaken the efforts to address domestic violence
of which the main victims or the bulk of the victims really are the wives, the spouses or the female partners in a relationship. We
would like to place that on record. How does the good Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in Intimate Relationship.
They do not want to include men in this domestic violence. But plenty of men are also being abused by women. I am playing
safe so I placed here members of the family, prescribing penalties therefor and providing protective measures for victims. This
includes the men, children, live-in, common-law wives, and those related with the family.65
xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women and not to families which
was the issue of the AWIR group. The understanding that I have is that we would be having a broader scope rather than just
women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong. However, I believe that there
is a need to protect women's rights especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to file a case against their
spouses, their live-in partners after years, if not decade, of battery and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their spouses, then it would not equalize the already difficult situation for
women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that the men in this Chamber
who love their women in their lives so dearly will agree with this representation. Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the women are, we are not given equal opportunities especially in the
domestic environment where the macho Filipino man would always feel that he is stronger, more superior to the Filipino
woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the family members have
been included in this proposed measure since the other members of the family other than women are also possible victims of
violence. While women are most likely the intended victims, one reason incidentally why the measure focuses on women, the
fact remains that in some relatively few cases, men also stand to be victimized and that children are almost always the helpless
victims of violence. I am worried that there may not be enough protection extended to other family members particularly
children who are excluded. Although Republic Act No. 7610, for instance, more or less, addresses the special needs of abused
children. The same law is inadequate. Protection orders for one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing that they may use this law
to justify their abusive behavior against women. However, we should also recognize that there are established procedures and
standards in our courts which give credence to evidentiary support and cannot just arbitrarily and whimsically entertain
baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the basic social institution.
Though I recognize the unequal power relations between men and women in our society, I believe we have an obligation to
uphold inherent rights and dignity of both husband and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a critical input arrived at after a
series of consultations/meetings with various NGOs, experts, sports groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be removing the "men and
children" in this particular bill and focus specifically on women alone. That will be the net effect of that proposed amendment.
Hearing the rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she
is inclined to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will propose an amendment to
the amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent of the amendment. As a
matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga lalake,
puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment

The President Pro Tempore. To the amendment.

Senator Sotto. more than the women, the children are very much abused. As a matter of fact, it is not limited to minors. The
abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old children being abused by their fathers, even
by their mothers. And it breaks my heart to find out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that. It will enhance and
hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute.67 Hence, we dare not
venture into the real motivations and wisdom of the members of Congress in limiting the protection against violence and abuse
under R.A. 9262 to women and children only. No proper challenge on said grounds may be entertained in this proceeding.
Congress has made its choice and it is not our prerogative to supplant this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to seek its amendment or repeal by the legislative. By the principle of
separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law.68 We only
step in when there is a violation of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred
and responsibilities imposed. The oft-repeated disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union69 is
instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation
on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another
in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required
of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions
which make for real differences; that it must be germane to the purpose of the law; that it must not be limited to existing
conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if
the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid classification as shall
hereinafter be discussed and, as such, did not violate the equal protection clause by favoring women over men as victims of
violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than men to be victims of
violence; and the widespread gender bias and prejudice against women all make for real differences justifying the classification
under the law. As Justice McIntyre succinctly states, "the accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and Women's Empowerment),
violence against women (VAW) is deemed to be closely linked with the unequal power relationship between women and men
otherwise known as "gender-based violence". Societal norms and traditions dictate people to think men are the leaders,
pursuers, providers, and take on dominant roles in society while women are nurturers, men's companions and supporters, and
take on subordinate roles in society. This perception leads to men gaining more power over women. With power comes the
need to control to retain that power. And VAW is a form of men's expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution 48/104 on the Declaration
on Elimination of Violence Against Women on December 20, 1993 stating that "violence against women is a manifestation of
historically unequal power relations between men and women, which have led to domination over and discrimination against
women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and developments in
advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of R.A. 9262 and its Implementing Rules last
October 27, 2004, the pertinent portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a family was accorded the
right to use force on members of the family under his control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and intellectually. In ancient Western societies, women whether
slave, concubine or wife, were under the authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered his property right
over her. Judaism, Christianity and other religions oriented towards the patriarchal family strengthened the male dominated
structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one was the husband. However, in the late 1500s and through
the entire 1600s, English common law began to limit the right of husbands to chastise their wives. Thus, common law
developed the rule of thumb, which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal punishment ceased.
Even then, the preservation of the family was given more importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common law. In 1871, the Supreme
Court of Alabama became the first appellate court to strike down the common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in her face or kick her
about the floor, or to inflict upon her like indignities, is not now acknowledged by our law... In person, the wife is entitled to the
same protection of the law that the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance leagues initiated it. These
leagues had a simple focus. They considered the evils of alcoholism as the root cause of wife abuse. Hence, they
demonstrated and picketed saloons, bars and their husbands' other watering holes. Soon, however, their crusade was joined by
suffragette movements, expanding the liberation movement's agenda. They fought for women's right to vote, to own property,
and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No less than the United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male
partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past
year. The [American Medical Association] views these figures as "marked underestimates," because the nature of these
incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the
AMA, "researchers on family violence agree that the true incidence of partner violence is probably double the above estimates;
or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-
partner during their lifetime... Thus on an average day in the United States, nearly 11,000 women are severely assaulted by
their male partners. Many of these incidents involve sexual assault... In families where wife beating takes place, moreover, child
abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological
abuse, particularly forced social and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative...Many
abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source
of income... Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8
percent of all homicide victims in the United States are killed by their spouses...Thirty percent of female homicide victims are
killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States Charter and the Universal
Declaration of Human Rights affirmed the equality of all human beings. In 1979, the UN General Assembly adopted the
landmark Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General
Assembly also adopted the Declaration on the Elimination of Violence Against Women. World conferences on the role and
rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a
Commission on the Status of Women.

The Philippines has been in cadence with the half and full steps of all these women's movements. No less than Section 14,
Article II of our 1987 Constitution mandates the State to recognize the role of women in nation building and to ensure the
fundamental equality before the law of women and men. Our Senate has ratified the CEDAW as well as the Convention on the
Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act
Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties
therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and children show that

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases reported (9,903).
And for the first semester of 2003, there were 2,381 reported cases out of 4,354 cases which represent 54.31%. xxx (T)he total
number of women in especially difficult circumstances served by the Department of Social Welfare and Development (DSWD)
for the year 2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are 1,091
DSWD cases out of a total number of 3,471 cases for the first semester of 2003. Female violence comprised more than 90% of
all forms of abuse and violence and more than 90% of these reported cases were committed by the women's intimate partners
such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence against women across an eight-
year period from 2004 to August of 2011 with violations under R.A. 9262 ranking first among the different VAW categories since
its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*


Reported
2004 2005 2006 2007 2008 2009 2010 2011
Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lasciviousnes 580 536 382 358 445 485 745 625
s

Physical 3,55 2,33 1,89 1,50 1,30 1,49


2,018 1,588
Injuries 3 5 2 5 7 8

Sexual
53 37 38 46 18 54 83 63
Harassment

1,26 2,38 3,59 5,28


RA 9262 218 924 9,974 9,021
9 7 9 5

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,10


Total 12,948
1 4 1 9 5 5 4

*2011 report covers only from January to August

Source: Philippine National Police Women and Children Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in the Philippines
because incidents thereof are relatively low and, perhaps, because many men will not even attempt to report the situation. In
the United Kingdom, 32% of women who had ever experienced domestic violence did so four or five (or more) times, compared
with 11% of the smaller number of men who had ever experienced domestic violence; and women constituted 89% of all those
who had experienced 4 or more incidents of domestic violence.75Statistics in Canada show that spousal violence by a woman
against a man is less likely to cause injury than the other way around (18 percent versus 44 percent). Men, who experience
violence from their spouses are much less likely to live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse are in self-defense or the
result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the Philippines, the same
cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to pick up, gather and
deposit in receptacles the manure emitted or discharged by their vehicle-drawing animals in any public highways, streets,
plazas, parks or alleys, said ordinance was challenged as violative of the guaranty of equal protection of laws as its application
is limited to owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but similarly pass
through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-drawing animals that
also traverse the city roads, "but their number must be negligible and their appearance therein merely occasional, compared to
the rig-drawing ones, as not to constitute a menace to the health of the community."77 The mere fact that the legislative
classification may result in actual inequality is not violative of the right to equal protection, for every classification of persons or
things for regulation by law produces inequality in some degree, but the law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women are often treated differently
and less seriously than other crimes. This was argued by then United States Senator Joseph R. Biden, Jr., now Vice President,
chief sponsor of the Violence Against Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S.
Congress' authority under the Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the
U.S. has institutionalized historic prejudices against victims of rape or domestic violence, subjecting them to "double
victimization" first at the hands of the offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that "(w)henever violence occurs in
the family, the police treat it as a private matter and advise the parties to settle the conflict themselves. Once the complainant
brings the case to the prosecutor, the latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of
response or reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often serious
nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct Unbecoming of a Judge. He
used derogatory and irreverent language in reference to the complainant in a petition for TPO and PPO under R.A. 9262,
calling her as "only a live-in partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship."
Judge Amila even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of absconding with the
contested property.81 Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against women. As
emphasized by the CEDAW Committee on the Elimination of Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women does not discriminate against men.82Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law
deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all appropriate measures "to
modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the character of
domestic violence from a private affair to a public offense will require the development of a distinct mindset on the part of the
police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address violence committed
against women and children, spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of women and children and guarantees
full respect for human rights. The State also recognizes the need to protect the family and its members particularly women and
children, from violence and threats to their personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5, 1981. Subsequently, the
Optional Protocol to the CEDAW was also ratified by the Philippines on October 6, 2003.86 This Convention mandates that
State parties shall accord to women equality with men before the law87 and shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two protocols.89 It is, thus, bound by
said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was promulgated, but to future conditions
as well, for as long as the safety and security of women and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not
limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body,
forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do
indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or
sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.


C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim
such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal
abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a
member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or
to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not
limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession,
occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious
and moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to research that has exposed the
dimensions and dynamics of battery. The acts described here are also found in the U.N. Declaration on the Elimination of
Violence Against Women.90 Hence, the argument advanced by petitioner that the definition of what constitutes abuse removes
the difference between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate contrast between the innocent and the prohibited acts. They
are worded with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited, and
need not guess at its meaning nor differ in its application.91 Yet, petitioner insists92that phrases like "depriving or threatening to
deprive the woman or her child of a legal right," "solely controlling the conjugal or common money or properties," "marital
infidelity," and "causing mental or emotional anguish" are so vague that they make every quarrel a case of spousal abuse.
However, we have stressed that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be
upheld not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid
merely because it might have been more explicit in its wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit. As defined above,
VAWC may likewise be committed "against a woman with whom the person has or had a sexual or dating relationship." Clearly,
the use of the gender-neutral word "person" who has or had a sexual or dating relationship with the woman encompasses even
lesbian relationships. Moreover, while the law provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the
Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the
victim, were held to be proper respondents in the case filed by the latter upon the allegation that they and their son (Go-Tan's
husband) had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the


due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections afforded by the due process
clause of the Constitution. Says he: "On the basis of unsubstantiated allegations, and practically no opportunity to respond, the
husband is stripped of family, property, guns, money, children, job, future employment and reputation, all in a matter of seconds,
without an inkling of what happened."95
A protection order is an order issued to prevent further acts of violence against women and their children, their family or
household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm,
minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies
necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to
accord the victim and any designated family or household member safety in the family residence, and to prevent the perpetrator
from committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary
custody of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their
financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the petitioner98 thereby undertaking full
responsibility, criminal or civil, for every allegation therein. Since "time is of the essence in cases of VAWC if further violence is
to be prevented,"99 the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb
or property of the victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim
from the immediate and imminent danger of VAWC or to prevent such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim is required not only
to verify the allegations in the petition, but also to attach her witnesses' affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ of
preliminary attachment which is issued without notice and hearing because the time in which the hearing will take could be
enough to enable the defendant to abscond or dispose of his property,102 in the same way, the victim of VAWC may already
have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary requirements of procedural
due process must yield to the necessities of protecting vital public interests,103among which is protection of women and children
from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice be immediately given to
the respondent directing him to file an opposition within five (5) days from service. Moreover, the court shall order that notice,
copies of the petition and TPO be served immediately on the respondent by the court sheriffs. The TPOs are initially effective
for thirty (30) days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of the notice upon the
respondent requiring him to file an opposition to the petition within five (5) days from service. The date of the preliminary
conference and hearing on the merits shall likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent protection order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised of the charges
imputed to him and afforded an opportunity to present his side. Thus, the fear of petitioner of being "stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an inkling of what happened"
is a mere product of an overactive imagination. The essence of due process is to be found in the reasonable opportunity to be
heard and submit any evidence one may have in support of one's defense. "To be heard" does not only mean verbal arguments
in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings,
is accorded, there is no denial of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO
that was granted only two days earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for the
modification of the TPO to allow him visitation rights to his children. Still, the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not to file
the required comment arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal of the
questioned TPO was only for a limited period (30 days) each time, and that he could prevent the continued renewal of said
order if he can show sufficient cause therefor. Having failed to do so, petitioner may not now be heard to complain that he was
denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the residence of the victim,
regardless of ownership of the residence, is virtually a "blank check" issued to the wife to claim any property as her conjugal
home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of ownership of the residence,
either temporarily for the purpose of protecting the offended party, or permanently where no property rights are violated. If the
respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the
respondent to the residence, remain there until the respondent has gathered his things and escort him from the residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless of ownership, only
temporarily for the purpose of protecting the latter. Such removal and exclusion may be permanent only where no property
rights are violated. How then can the private respondent just claim any property and appropriate it for herself, as petitioner
seems to suggest?

The non-referral of a VAWC case


to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and counseling, the law has
done violence to the avowed policy of the State to "protect and strengthen the family as a basic autonomous social
institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a mediator. The reason
behind this provision is well-explained by the Commentary on Section 311 of the Model Code on Domestic and Family Violence
as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an order for protection.
Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of
violence implies that the victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is
problematic because the petitioner is frequently unable to participate equally with the person against whom the protection order
has been sought. (Emphasis supplied)

There is no undue delegation of


judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the Constitution, is placed upon
the "Supreme Court and such other lower courts as may be established by law" and, thus, protests the delegation of power to
barangay officials to issue protection orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection Orders (BPOs) refer to the
protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a)
and (b) of this Act.1wphi1 A Punong Barangay who receives applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable
to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is
issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately
after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same
on the respondent, or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.112 On the other hand, executive power "is
generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his unavailability, by any
available Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child;
and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely
executive in nature, in pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of certain facts and to apply the
law thereto in order to determine what his official conduct shall be and the fact that these acts may affect private rights do not
constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding "whether there is
reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof," the Punong
Barangay must determine reasonable ground to believe that an imminent danger of violence against the woman and her
children exists or is about to recur that would necessitate the issuance of a BPO. The preliminary investigation conducted by
the prosecutor is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law enforcement agencies are
required to extend assistance to victims of violence and abuse, it would be very unlikely that they would remain objective and
impartial, and that the chances of acquittal are nil. As already stated, assistance by barangay officials and other law
enforcement agencies is consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict with the Constitution,
not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the
Court. In other words, the grounds for nullity must be beyond reasonable doubt.116 In the instant case, however, no concrete
evidence and convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality of R.A.
9262, which is an act of Congress and signed into law by the highest officer of the co-equal executive department. As we said in
Estrada v. Sandiganbayan, 117 courts must assume that the legislature is ever conscious of the borders and edges of its plenary
powers, and passed laws with full knowledge of the facts and for the purpose of promoting what is right and advancing the
welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against domestic violence shows that
one of its most difficult struggles was the fight against the violence of law itself. If we keep that in mind, law will not again be a
hindrance to the struggle of women for equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as
it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice
Republic of the Philippines

Supreme Court

Manila

EN BANC

ANTONIO M. SERRANO, G.R. No. 167614

Petitioner,

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

- versus - CORONA,

CARPIO MORALES,

TINGA,

CHICO-NAZARIO,

VELASCO, Jr.,

NACHURA,

LEONARDO-DE CASTRO,

BRION, and

GALLANT MARITIME SERVICES, PERALTA, JJ.

INC. and MARLOW NAVIGATION

CO., INC., Promulgated:

Respondents. March 24, 2009

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

DECISION
AUSTRIA-MARTINEZ, J.:

For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their
earnings have built houses, provided health care, equipped schools and planted the seeds of businesses. They have woven
together the world by transmitting ideas and knowledge from country to country. They have provided the dynamic human link
between cultures, societies and economies. Yet, only recently have we begun to understand not only how much
international migration impacts development, but how smart public policies can magnify this effect.

United Nations Secretary-General Ban Ki-Moon

Global Forum on Migration and Development

Brussels, July 10, 2007[1]

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5 th paragraph of Section 10, Republic Act (R.A.) No. 8042, [2] to
wit:

Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized
cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest
of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less.

x x x x (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates the hardships borne by them
by unduly limiting their entitlement in case of illegal dismissal to their lump-sum salary either for the unexpired portion of their employment contract
or for three months for every year of the unexpired term, whichever is less (subject clause).Petitioner claims that the last clause violates the
OFWs' constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them due process.

By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December 8, 2004 Decision [3] and April 1, 2005
Resolution[4] of the Court of Appeals (CA), which applied the subject clause, entreating this Court to declare the subject clause unconstitutional.

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a Philippine Overseas
Employment Administration (POEA)-approved Contract of Employment with the following terms and conditions:

Duration of contract 12 months

Position Chief Officer


Basic monthly salary US$1,400.00

Hours of work 48.0 hours per week

Overtime US$700.00 per month

Vacation leave with pay 7.00 days per month[5]

On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment contract for the position
of Second Officer with a monthly salary of US$1,000.00, upon the assurance and representation of respondents that he would be made Chief
Officer by the end of April 1998.[6]

Respondents did not deliver on their promise to make petitioner Chief Officer.[7] Hence, petitioner refused to stay on as Second Officer
and was repatriated to the Philippines on May 26, 1998.[8]

Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but at the time of his
repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9)
months and twenty-three (23) days.

Petitioner filed with the Labor Arbiter (LA) a Complaint [9] against respondents for constructive dismissal and for payment of his money
claims in the total amount of US$26,442.73, broken down as follows:

May 27/31, 1998 (5 days) incl. Leave pay US$ 413.90

June 01/30, 1998 2,590.00

July 01/31, 1998 2,590.00

August 01/31, 1998 2,590.00

Sept. 01/30, 1998 2,590.00

Oct. 01/31, 1998 2,590.00

Nov. 01/30, 1998 2,590.00

Dec. 01/31, 1998 2,590.00

Jan. 01/31, 1999 2,590.00

Feb. 01/28, 1999 2,590.00

Mar. 1/19, 1999 (19 days) incl. leave pay 1,640.00

-------------------------------------------------------------------------------
-

25,382.23

Amount adjusted to chief mate's salary

(March 19/31, 1998 to April 1/30, 1998) + 1,060.50[10]

-------------------------------------------------------------------------------
---------------

TOTAL CLAIM US$ 26,442.73[11]

as well as moral and exemplary damages and attorney's fees.

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and awarding him monetary benefits, to
wit:

WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of the complainant
(petitioner) by the respondents in the above-entitled case was illegal and the respondents are hereby ordered to pay the
complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of
payment, the amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS (US $8,770.00),
representing the complainants salary for three (3) months of the unexpired portion of the aforesaid contract of
employment.

The respondents are likewise ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based
on the rate of exchange prevailing at the time of payment, the amount of FORTY FIVE U.S. DOLLARS (US$ 45.00),
[12]
representing the complainants claim for a salary differential. In addition, the respondents are hereby ordered to pay the
complainant, jointly and severally, in Philippine Currency, at the exchange rate prevailing at the time of payment, the
complainants (petitioner's) claim for attorneys fees equivalent to ten percent (10%) of the total amount awarded to the
aforesaid employee under this Decision.

The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of merit.

All other claims are hereby DISMISSED.

SO ORDERED.[13] (Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of three months only --
rather than the entire unexpired portion of nine months and 23 days of petitioner's employment contract - applying the subject clause. However,
the LA applied the salary rate of US$2,590.00, consisting of petitioner's [b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime
pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per month.[14]

Respondents appealed[15] to the National Labor Relations Commission (NLRC) to question the finding of the LA that petitioner was
illegally dismissed.

Petitioner also appealed[16] to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court in Triple Integrated
Services, Inc. v. National Labor Relations Commission [17] that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired
portion of their contracts.[18]

In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:

WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby ordered to pay
complainant, jointly and severally, in Philippine currency, at the prevailing rate of exchange at the time of payment the
following:

1. Three (3) months salary


$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorneys fees 424.50
TOTAL US$4,669.50
The other findings are affirmed.
SO ORDERED.[19]

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing the applicable salary rate from
US$2,590.00 to US$1,400.00 because R.A. No. 8042 does not provide for the award of overtime pay, which should be proven to have been
actually performed, and for vacation leave pay.[20]

Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the subject clause.[21] The NLRC
denied the motion.[22]

Petitioner filed a Petition for Certiorari[23] with the CA, reiterating the constitutional challenge against the subject clause.[24] After initially
dismissing the petition on a technicality, the CA eventually gave due course to it, as directed by this Court in its Resolution dated August 7,
2003 which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner.

In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the
CA skirted the constitutional issue raised by petitioner.[25]

His Motion for Reconsideration[26] having been denied by the CA,[27] petitioner brings his cause to this Court on the following grounds:

I
The Court of Appeals and the labor tribunals have decided the case in a way not in accord with applicable decision
of the Supreme Court involving similar issue of granting unto the migrant worker back wages equal to the unexpired portion
of his contract of employment instead of limiting it to three (3) months

II
In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their interpretation of
Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals gravely erred in law when it failed to discharge
its judicial duty to decide questions of substance not theretofore determined by the Honorable Supreme Court, particularly,
the constitutional issues raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly and arbitrarily
limits payment of the award for back wages of overseas workers to three (3) months.

III
Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the Court of Appeals
gravely erred in law in excluding from petitioners award the overtime pay and vacation pay provided in his contract since
under the contract they form part of his salary.[28]

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and sickly, and he intends to make use of
the monetary award for his medical treatment and medication.[29] Required to comment, counsel for petitioner filed a motion, urging the court to
allow partial execution of the undisputed monetary award and, at the same time, praying that the constitutional question be resolved.[30]

Considering that the parties have filed their respective memoranda, the Court now takes up the full merit of the petition mindful of the
extreme importance of the constitutional question raised therein.

On the first and second issues

The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the
salary differential of US$45.00 awarded to petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary to be
awarded to petitioner by reason of his illegal dismissal.
Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate of US$1,400.00
covering the period of three months out of the unexpired portion of nine months and 23 days of his employment contract or a total of
US$4,200.00.

Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00 awarded by the NLRC and
the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his
employment contract, computed at the monthly rate of US$2,590.00.[31]
The Arguments of Petitioner

Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to negotiate for and
stipulate in their overseas employment contracts a determinate employment period and a fixed salary package. [32] It also impinges on the equal
protection clause, for it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum salary to
which OFWs are entitled in case of illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is
declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction between the two groups; [33] and that it defeats
Section 18,[34] Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino workers, whether deployed locally
or overseas.[35]

Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with existing jurisprudence on the issue of
money claims of illegally dismissed OFWs.Though there are conflicting rulings on this, petitioner urges the Court to sort them out for the guidance
of affected OFWs.[36]
Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other purpose but to benefit local
placement agencies. He marks the statement made by the Solicitor General in his Memorandum, viz.:

Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that
jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence,
placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the
foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant
workers, liability for money claims was reduced under Section 10 of R.A. No. 8042. [37] (Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause sacrifices the well-being of OFWs. Not
only that, the provision makes foreign employers better off than local employers because in cases involving the illegal dismissal of employees,
foreign employers are liable for salaries covering a maximum of only three months of the unexpired employment contract while local employers
are liable for the full lump-sum salaries of their employees. As petitioner puts it:

In terms of practical application, the local employers are not limited to the amount of backwages they have to give
their employees they have illegally dismissed, following well-entrenched and unequivocal jurisprudence on the matter. On the
other hand, foreign employers will only be limited to giving the illegally dismissed migrant workers the maximum of three (3)
months unpaid salaries notwithstanding the unexpired term of the contract that can be more than three (3) months.[38]

Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries and other emoluments
he is entitled to under his fixed-period employment contract.[39]

The Arguments of Respondents

In their Comment and Memorandum, respondents contend that the constitutional issue should not be entertained, for this was
belatedly interposed by petitioner in his appeal before the CA, and not at the earliest opportunity, which was when he filed an appeal before the
NLRC.[40]

The Arguments of the Solicitor General

The Solicitor General (OSG)[41] points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could not have impaired
petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the
minimum terms of petitioner's employment, especially on the matter of money claims, as this was not stipulated upon by the parties.[42]

Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their employment, such that their rights to
monetary benefits must necessarily be treated differently. The OSG enumerates the essential elements that distinguish OFWs from local
workers: first, while local workers perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers, over whom it is
difficult for our courts to acquire jurisdiction, or against whom it is almost impossible to enforce judgment; and second, as held in Coyoca v.
National Labor Relations Commission[43] and Millares v. National Labor Relations Commission,[44] OFWs are contractual employees who can
never acquire regular employment status, unlike local workers who are or can become regular employees. Hence, the OSG posits that there are
rights and privileges exclusive to local workers, but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the
differentiated treatment under the subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision does not violate
the equal protection clause nor Section 18, Article II of the Constitution.[45]
Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to mitigate the solidary liability of
placement agencies for this redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of
legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and
humane conditions.[46]
The Court's Ruling

The Court sustains petitioner on the first and second issues.

When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such as the Congress, it does so only
when these conditions obtain: (1) that there is an actual case or controversy involving a conflict of rights susceptible of judicial determination; [47] (2)
that the constitutional question is raised by a proper party[48] and at the earliest opportunity;[49] and (3) that the constitutional question is the very lis
mota of the case,[50] otherwise the Court will dismiss the case or decide the same on some other ground.[51]

Without a doubt, there exists in this case an actual controversy directly involving petitioner who is personally aggrieved that the labor
tribunals and the CA computed his monetary award based on the salary period of three months only as provided under the subject clause.

The constitutional challenge is also timely. It should be borne in mind that the requirement that a constitutional issue be raised at the
earliest opportunity entails the interposition of the issue in the pleadings before a competent court, such that, if the issue is not raised in the
pleadings before that competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be considered on appeal.
[52]
Records disclose that the issue on the constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his
Motion for Partial Reconsideration with said labor tribunal, [53] and reiterated in his Petition for Certiorari before the CA.[54] Nonetheless, the issue is
deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. The NLRC is a
labor tribunal that merely performs a quasi-judicial function its function in the present case is limited to determining questions of fact to which the
legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in accordance with the standards laid down by the law itself;
[55]
thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions. The CA, on the other
hand, is vested with the power of judicial review or the power to declare unconstitutional a law or a provision thereof, such as the subject clause.
[56]
Petitioner's interposition of the constitutional issue before the CA was undoubtedly seasonable.The CA was therefore remiss in failing to take
up the issue in its decision.
The third condition that the constitutional issue be critical to the resolution of the case likewise obtains because the monetary claim of
petitioner to his lump-sum salary for the entire unexpired portion of his 12-month employment contract, and not just for a period of three months,
strikes at the very core of the subject clause.

Thus, the stage is all set for the determination of the constitutionality of the subject clause.

Does the subject clause violate Section 10,


Article III of the Constitution on non-impairment
of contracts?

The answer is in the negative.

Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the
fixed salary package he will receive[57] is not tenable.

Section 10, Article III of the Constitution provides:

No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted have only a prospective operation, [58] and cannot affect acts
or contracts already perfected;[59] however, as to laws already in existence, their provisions are read into contracts and deemed a part thereof.
[60]
Thus, the non-impairment clause under Section 10, Article II is limited in application to laws about to be enacted that would in any way derogate
from existing acts or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto.

As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between
petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment
contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the
provisions of R.A. No. 8042.
But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it
impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or
calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of
OFWs wherever they may be employed.[61] Police power legislations adopted by the State to promote the health, morals, peace, education, good
order, safety, and general welfare of the people are generally applicable not only to future contracts but even to those already in existence, for all
private contracts must yield to the superior and legitimate measures taken by the State to promote public welfare.[62]

Does the subject clause violate Section 1,


Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
as a protected sector?

The answer is in the affirmative.


Section 1, Article III of the Constitution guarantees:

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 law.

Section 18,[63] Article II and Section 3,[64] Article XIII accord all members of the labor sector, without distinction as to place of deployment,
full protection of their rights and welfare.

To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity: all
monetary benefits should be equally enjoyed by workers of similar category, while all monetary obligations should be borne by them in equal
degree; none should be denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in like circumstances.[65]

Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a system of classification into
its legislation; however, to be valid, the classification must comply with these requirements: 1) it is based on substantial distinctions; 2) it is
germane to the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all members of the class.[66]

There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential
or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest;
[67]
b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state
interest and that the classification is at least substantially related to serving that interest; [68] and c) strict judicial
scrutiny[69] in which a legislative classification which impermissibly interferes with the exercise of a fundamental right [70] or operates to the peculiar
disadvantage of a suspect class [71] is presumed unconstitutional, and the burden is upon the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.[72]

Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications[73] based on race[74] or gender[75] but not
when the classification is drawn along income categories.[76]

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral
ng Pilipinas,[77] the constitutionality of a provision in the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI),
was challenged for maintaining its rank-and-file employees under the Salary Standardization Law (SSL), even when the rank-and-file employees
of other GFIs had been exempted from the SSL by their respective charters. Finding that the disputed provision contained a suspect classification
based on salary grade, the Court deliberately employed the standard of strict judicial scrutiny in its review of the constitutionality of said
provision. More significantly, it was in this case that the Court revealed the broad outlines of its judicial philosophy, to wit:

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded
recognition and respect by the courts of justice except when they run afoul of the Constitution.The deference stops where the
classification violates a fundamental right, or prejudices persons accorded special protection by the
Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a
stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign
decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been
used to support many of our decisions. We should not place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our own decisions through the employment of our own
endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs,
and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. Our laws must
be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of
each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own
public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct
and different from others.

xxxx

Further, the quest for a better and more equal world calls for the use of equal protection as a tool of effective judicial
intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims
equality as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social
justice in Article II, Section 10, in all phases of national development, further explicitated in Article XIII, are clear commands to
the State to take affirmative action in the direction of greater equality. x x x [T]here is thus in the Philippine Constitution no lack
of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality.

Our present Constitution has gone further in guaranteeing vital social and economic rights to
marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to
accommodate the interests of the working class on the humane justification that those with less privilege in life
should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative
and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for
the humanization of laws and the equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated.

xxxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality,
recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on
the rational basis test, and the legislative discretion would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of
prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more
strict. A weak and watered down view would call for the abdication of this Courts solemn duty to strike down any law
repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is
a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the
character or nature of the actor.

xxxx

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It
is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are
competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The
implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and opportunities for career advancement - are given
higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees
consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is
they - and not the officers - who have the real economic and financial need for the adjustment . This is in accord with
the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent
standard of living, and improve the quality of life for all. Any act of Congress that runs counter to this constitutional
desideratum deserves strict scrutiny by this Court before it can pass muster. (Emphasis supplied)

Imbued with the same sense of obligation to afford protection to labor, the Court in the present case also employs the standard of strict
judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs.

Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that
the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts of one
year or more;

Second, among OFWs with employment contracts of more than one year; and

Third, OFWs vis--vis local workers with fixed-period employment;

OFWs with employment contracts of less than one year vis--vis OFWs with
employment contracts of one year or more

As pointed out by petitioner,[78] it was in Marsaman Manning Agency, Inc. v. National Labor Relations Commission[79] (Second Division,
1999) that the Court laid down the following rules on the application of the periods prescribed under Section 10(5) of R.A. No. 804, to wit:

A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed
overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three
(3) months salary for every year of the unexpired term, whichever is less, comes into play only when the
employment contract concerned has a term of at least one (1) year or more. This is evident from the words for
every year of the unexpired term which follows the words salaries x x x for three months. To follow petitioners
thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to
completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-
established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be
given effect since the law-making body is presumed to know the meaning of the words employed in the statue and to have
used them advisedly. Ut res magis valeat quam pereat.[80] (Emphasis supplied)

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but was awarded his salaries for the remaining 8
months and 6 days of his contract.

Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on Section 10(5). One was Asian
Center for Career and Employment System and Services v. National Labor Relations Commission (Second Division, October 1998),
[81]
which involved an OFW who was awarded a two-year employment contract, but was dismissed after working for one year and two
months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary covering eight months, the unexpired portion
of his contract. On appeal, the Court reduced the award to SR3,600.00 equivalent to his three months salary, this being the lesser value, to wit:
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just, valid or
authorized cause is entitled to his salary for the unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.

In the case at bar, the unexpired portion of private respondents employment contract is eight (8) months. Private
respondent should therefore be paid his basic salary corresponding to three (3) months or a total of SR3,600.[82]

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission (Third Division, December 1998),[83] which
involved an OFW (therein respondent Erlinda Osdana) who was originally granted a 12-month contract, which was deemed renewed for another
12 months. After serving for one year and seven-and-a-half months, respondent Osdana was illegally dismissed, and the Court awarded her
salaries for the entire unexpired portion of four and one-half months of her contract.

The Marsaman interpretation of Section 10(5) has since been adopted in the following cases:

Period Applied in the


Case Title Contract Period of Unexpired Period Computation of the
Period Service Monetary Award

Skippers v. 6 months 2 months 4 months 4 months


Maguad[84]
Bahia Shipping v. 9 months 8 months 4 months 4 months
Reynaldo Chua [85]
Centennial 9 months 4 months 5 months 5 months
Transmarine v.
dela Cruz l[86]
Talidano v. 12 months 3 months 9 months 3 months
Falcon[87]
Univan v. 12 months 3 months 9 months 3 months
CA [88]
Oriental v. 12 months more than 2 10 months 3 months
CA [89] months
PCL v. NLRC[90] 12 months more than 2 more or less 9 3 months
months months
Olarte v. 12 months 21 days 11 months and 9 3 months
Nayona[91] days
JSS v. 12 months 16 days 11 months and 24 3 months
Ferrer[92] days
Pentagon v. 12 months 9 months and 7 2 months and 23 2 months and 23 days
Adelantar[93] days days
Phil. Employ v. 12 months 10 months 2 months Unexpired portion
Paramio,
et al.[94]
Flourish Maritime 2 years 26 days 23 months and 4 6 months or 3 months
v. Almanzor [95] days for each year of
contract
Athenna 1 year, 10 1 month 1 year, 9 months and 6 months or 3 months
Manpower v. months and 28 days for each year of
Villanos [96] 28 days contract
As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first category includes OFWs with
fixed-period employment contracts of less than one year; in case of illegal dismissal, they are entitled to their salaries for the entire unexpired
portion of their contract. The second category consists of OFWs with fixed-period employment contracts of one year or more; in case of illegal
dismissal, they are entitled to monetary award equivalent to only 3 months of the unexpired portion of their contracts.

The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent OFW worked for only 2 months
out of his 6-month contract, but was awarded his salaries for the remaining 4 months. In contrast, the respondent OFWs
in Oriental and PCL who had also worked for about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of
the unexpired portion of their contracts. Even the OFWs involved in Talidano and Univan who had worked for a longer period of 3 months out of
their 12-month contracts before being illegally dismissed were awarded their salaries for only 3 months.

To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an employment contract of 10 months at a
monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an employment contract of 15 months with the same monthly salary rate of
US$1,000.00. Both commenced work on the same day and under the same employer, and were illegally dismissed after one month of
work. Under the subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract,
whereas OFW-B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion of his contract, instead of
US$14,000.00 for the unexpired portion of 14 months of his contract, as the US$3,000.00 is the lesser amount.

The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to the effectivity of R.A. No.
8042 on July 14, 1995,[97] illegally dismissed OFWs, no matter how long the period of their employment contracts, were entitled to their salaries
for the entire unexpired portions of their contracts. The matrix below speaks for itself:

Case Title Contract Period Period of Unexpired Period Applied in the


Service Period Computation of the
Monetary Award
ATCI v. CA, 2 years 2 months 22 months 22 months
et al.[98]
Phil. Integrated v. 2 years 7 days 23 months and 23 23 months and 23 days
NLRC[99] days
JGB v. NLC[100] 2 years 9 months 15 months 15 months
[101]
Agoy v. NLRC 2 years 2 months 22 months 22 months
EDI v. NLRC, et al. 2 years 5 months 19 months 19 months
[102]

Barros v. NLRC, et 12 months 4 months 8 months 8 months


al.[103]
Philippine 12 months 6 months and 5 months and 18 5 months and 18 days
Transmarine v. 22 days days
Carilla[104]

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in
terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their
basic salaries multiplied by the entire unexpired portion of their employment contracts.

The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally
dismissed OFWs based on their employment periods, in the process singling out one category whose contracts have an unexpired portion of
one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the
unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's unexpired
contractsfall short of one year.

Among OFWs With Employment


Contracts of More Than One Year

Upon closer examination of the terminology employed in the subject clause, the Court now has misgivings on the accuracy of
the Marsaman interpretation.
The Court notes that the subject clause or for three (3) months for every year of the unexpired term, whichever is less contains the
qualifying phrases every year and unexpired term. By its ordinary meaning, the word term means a limited or definite extent of time. [105] Corollarily,
that every year is but part of an unexpired term is significant in many ways: first, the unexpired term must be at least one year, for if it were any
shorter, there would be no occasion for such unexpired term to be measured by every year; and second, the original term must be more than
one year, for otherwise, whatever would be the unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the
determination of when the subject clause for three (3) months for every year of the unexpired term, whichever is less shall apply is not the length
of the original contract period as held in Marsaman,[106] but the length of the unexpired portion of the contract period -- the subject clause applies in
cases when the unexpired portion of the contract period is at least one year, which arithmetically requires that the original contract period be more
than one year.

Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than
one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired
portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause,
and their monetary benefits limited to their salaries for three months only.

To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court assumes hypothetical OFW-C and
OFW-D, who each have a 24-month contract at a salary rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and
OFW-D, on the 13th month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the subject clause applies to
the computation of the latter's monetary benefits. Thus, OFW-C will be entitled, not to US$12,000,00 or the latter's total salaries for the 12 months
unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-month unexpired term
of the contract. On the other hand, OFW-D is spared from the effects of the subject clause, for there are only 11 months left in the latter's contract
period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired portion.

OFWs vis--vis Local Workers


With Fixed-Period Employment

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards of illegally dismissed OFWs was
in place. This uniform system was applicable even to local workers with fixed-term employment.[107]

The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of Commerce (1888),[108] to wit:

Article 299. If the contracts between the merchants and their shop clerks and employees should have
been made of a fixed period, none of the contracting parties, without the consent of the other, may withdraw from
the fulfillment of said contract until the termination of the period agreed upon.

Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the exception of the
provisions contained in the following articles.

In Reyes v. The Compaia Maritima,[109] the Court applied the foregoing provision to determine the liability of a shipping company for the
illegal discharge of its managers prior to the expiration of their fixed-term employment. The Court therein held the shipping company liable for the
salaries of its managers for the remainder of their fixed-term employment.
There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce which provides:

Article 605. If the contracts of the captain and members of the crew with the agent should be for a definite period or
voyage, they cannot be discharged until the fulfillment of their contracts, except for reasons of insubordination in serious
matters, robbery, theft, habitual drunkenness, and damage caused to the vessel or to its cargo by malice or manifest or
proven negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,[110] in


which the Court held the shipping company liable for the salaries and subsistence allowance of its illegally dismissed employees for
the entire unexpired portion of their employment contracts.

While Article 605 has remained good law up to the present,[111] Article 299 of the Code of Commerce was replaced by Art. 1586 of the
Civil Code of 1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for a certain
work cannot leave or be dismissed without sufficient cause, before the fulfillment of the contract.(Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan[112] read the disjunctive "or" in Article 1586 as a conjunctive "and" so as to apply the provision to
local workers who are employed for a time certain although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia
Palomar v. Hotel de France Company.[113] And in both Lemoine and Palomar, the Court adopted the general principle that in actions for wrongful
discharge founded on Article 1586, local workers are entitled to recover damages to the extent of the amount stipulated to be paid to them by the
terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v. Gay[114] held:

The doctrine is well-established in American jurisprudence, and nothing has been brought to our attention to the
contrary under Spanish jurisprudence, that when an employee is wrongfully discharged it is his duty to seek other
employment of the same kind in the same community, for the purpose of reducing the damages resulting from such wrongful
discharge. However, while this is the general rule, the burden of showing that he failed to make an effort to secure other
employment of a like nature, and that other employment of a like nature was obtainable, is upon the defendant. When an
employee is wrongfully discharged under a contract of employment his prima facie damage is the amount which
he would be entitled to had he continued in such employment until the termination of the period. (Howard vs. Daly,
61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.)[115] (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment: Section 2 (Obligations with a
Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book IV. [116] Much like
Article 1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies available to a fixed-term
worker who is illegally discharged. However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich,[117] the Court carried over the principles
on the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal discharge of a
local worker whose fixed-period employment contract was entered into in 1952, when the new Civil Code was already in effect.[118]

More significantly, the same principles were applied to cases involving overseas Filipino workers whose fixed-term employment
contracts were illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v. Ople,[119] involving seafarers who were illegally
discharged. In Teknika Skills and Trade Services, Inc. v. National Labor Relations Commission,[120] an OFW who was illegally dismissed prior to
the expiration of her fixed-period employment contract as a baby sitter, was awarded salaries corresponding to the unexpired portion of her
contract. The Court arrived at the same ruling in Anderson v. National Labor Relations Commission,[121] which involved a foreman hired in 1988 in
Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine months on the job -- the Court awarded him salaries
corresponding to 15 months, the unexpired portion of his contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission,[122] a
Filipino working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month contract after he was
wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations Commission,[123] an OFW whose 12-month contract was
illegally cut short in the second month was declared entitled to his salaries for the remaining 10 months of his contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in
terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But
with the enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one
year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no
such limitation is imposed on local workers with fixed-term employment.

The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary
benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired
portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term
employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification
to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means.
What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by
history.[124] It is akin to the paramount interest of the state [125] for which some individual liberties must give way, such as the public interest in
safeguarding health or maintaining medical standards,[126] or in maintaining access to information on matters of public concern.[127]

In the present case, the Court dug deep into the records but found no compelling state interest that the subject clause may possibly
serve.

The OSG defends the subject clause as a police power measure designed to protect the employment of Filipino seafarers overseas x
x x. By limiting the liability to three months [sic], Filipino seafarers have better chance of getting hired by foreign employers. The limitation also
protects the interest of local placement agencies, which otherwise may be made to shoulder millions of pesos in termination pay.[128]

The OSG explained further:


Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that
jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence,
placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the
foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant
workers, liability for money are reduced under Section 10 of RA 8042.

This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote.
The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed
and are employed under decent and humane conditions.[129] (Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of the state interest sought to be
served by the subject clause.

The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB
14314), from which the law originated; [130] but the speech makes no reference to the underlying reason for the adoption of the subject
clause. That is only natural for none of the 29 provisions in HB 14314 resembles the subject clause.

On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:

Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National
Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90)
calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of the
complaint, the claim arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino
workers for overseas employment including claims for actual, moral, exemplary and other forms of damages.

The liability of the principal and the recruitment/placement agency or any and all claims under this Section shall be
joint and several.

Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of damages under
this Section shall not be less than fifty percent (50%) of such money claims: Provided, That any installment payments, if
applicable, to satisfy any such compromise or voluntary settlement shall not be more than two (2) months. Any
compromise/voluntary agreement in violation of this paragraph shall be null and void.

Non-compliance with the mandatory period for resolutions of cases provided under this Section shall subject the
responsible officials to any or all of the following penalties:

(1) The salary of any such official who fails to render his decision or resolution within the prescribed
period shall be, or caused to be, withheld until the said official complies therewith;
(2) Suspension for not more than ninety (90) days; or

(3) Dismissal from the service with disqualification to hold any appointive public office for five (5) years.

Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such
official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of
this paragraph.
But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money claims.

A rule on the computation of money claims containing the subject clause was inserted and eventually adopted as the 5th paragraph of
Section 10 of R.A. No. 8042. The Court examined the rationale of the subject clause in the transcripts of the Bicameral Conference Committee
(Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House Bill No.
14314). However, the Court finds no discernible state interest, let alone a compelling one, that is sought to be protected or advanced by the
adoption of the subject clause.

In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the
perpetuation of the discrimination against OFWs under the subject clause.

Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the
solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form
of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored
sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose
protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state
interest is odious.

Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies vis-a-vis their foreign
principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of
OFWs.

The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers, dated February 4,
2002, imposes administrative disciplinary measures on erring foreign employers who default on their contractual obligations to migrant workers
and/or their Philippine agents. These disciplinary measures range from temporary disqualification to preventive suspension. The POEA Rules
and Regulations Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary
measures against erring foreign employers.

Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement agencies in enforcing the
solidary liability of their foreign principals.

Thus, the subject clause in the 5 th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to
equal protection.

Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality of the subject clause from the lone
perspective that the clause directly violates state policy on labor under Section 3,[131] Article XIII of the Constitution.

While all the provisions of the 1987 Constitution are presumed self-executing,,[132] there are some which this Court has declared not judicially
enforceable, Article XIII being one,[133]particularly Section 3 thereof, the nature of which, this Court, in Agabon v. National Labor Relations
Commission,[134] has described to be not self-actuating:

Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing in
the sense that these are automatically acknowledged and observed without need for any enabling legislation. However, to
declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the
realization of ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view presents the
dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to labor" and "security of
tenure", when examined in isolation, are facially unqualified, and the broadest interpretation possible suggests a blanket
shield in favor of labor against any form of removal regardless of circumstance. This interpretation implies an unimpeachable
right to continued employment-a utopian notion, doubtless-but still hardly within the contemplation of the framers.
Subsequent legislation is still needed to define the parameters of these guaranteed rights to ensure the protection and
promotion, not only the rights of the labor sector, but of the employers' as well. Without specific and pertinent legislation,
judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution.

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable
right to stave off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As
manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative enactments for their
enforceability.[135] (Emphasis added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of which the questioned
clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of litigation to every worker or union over every
conceivable violation of so broad a concept as social justice for labor.

It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual enforceable right, but
merely clothes it with the status of a sector for whom the Constitution urges protection through executive or legislative action and judicial
recognition. Its utility is best limited to being an impetus not just for the executive and legislative departments, but for the judiciary as well,
to protect the welfare of the working class. And it was in fact consistent with that constitutional agenda that the Court in Central Bank
(now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate Justice now
Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on the perpetuation of
prejudice against persons favored by the Constitution with special protection -- such as the working class or a section thereof -- the Court
may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny.

The view that the concepts of suspect classification and strict judicial scrutiny formulated in Central Bank Employee
Association exaggerate the significance of Section 3, Article XIII is a groundless apprehension. Central Bank applied Article XIII in conjunction
with the equal protection clause. Article XIII, by itself, without the application of the equal protection clause, has no life or force of its own as
elucidated in Agabon.

Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's right to substantive due process, for
it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose.[136]

The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the entitlement of OFWs to their three-
month salary in case of illegal dismissal, is to give them a better chance of getting hired by foreign employers. This is plain speculation. As earlier
discussed, there is nothing in the text of the law or the records of the deliberations leading to its enactment or the pleadings of respondent that
would indicate that there is an existing governmental purpose for the subject clause, or even just a pretext of one.

The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason that the clause violates
not just petitioner's right to equal protection, but also her right to substantive due process under Section 1,[137] Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired period of nine months and 23 days
of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A. No. 8042.

On the Third Issue


Petitioner contends that his overtime and leave pay should form part of the salary basis in the computation of his monetary award,
because these are fixed benefits that have been stipulated into his contract.

Petitioner is mistaken.

The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like petitioner, DOLE Department Order No.
33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime,
leave pay and other bonuses; whereas overtime pay is compensation for all work performed in excess of the regular eight hours, and holiday pay
is compensation for any work performed on designated rest days and holidays.

By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the computation of
petitioner's monetary award, unless there is evidence that he performed work during those periods. As the Court held in Centennial Transmarine,
Inc. v. Dela Cruz,[138]

However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in Cagampan v.
National Labor Relations Commission, to wit:

The rendition of overtime work and the submission of sufficient proof that said was actually
performed are conditions to be satisfied before a seaman could be entitled to overtime pay which should
be computed on the basis of 30% of the basic monthly salary. In short, the contract provision guarantees
the right to overtime pay but the entitlement to such benefit must first be established.

In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is
unwarranted since the same is given during the actual service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause or for three months for every year of the unexpired term,
whichever is less in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL; and the December 8,
2004 Decision and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his salaries for the
entire unexpired portion of his employment contract consisting of nine months and 23 days computed at the rate of US$1,400.00 per month.

No costs.

SO ORDERED.
THIRD DIVISION

AAA,* G.R. No. 171465

Petitioner,
Present:
- versus - Ynares-Santiago, J. (Chairperson),
Austria-Martinez,

Chico-Nazario, and

Nachura, JJ.

HON. ANTONIO A. CARBONELL,

in his capacity as Presiding Judge,

Branch 27, Regional Trial Court, Promulgated:

San Fernando City, La Union and

ENGR. JAIME O. ARZADON,

Respondents. June 8, 2007

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

DECISION

YNARES-SANTIAGO, J.:

This petition for certiorari[1] assails the December 16, 2005[2] Order of the Regional Trial Court, Branch 27, San Fernando, La
Union in Criminal Case No. 6983, dismissing the rape case filed against private respondent Jaime O. Arzadon for lack of
probable cause; and its February 3, 2006[3] Order denying petitioners motion for reconsideration.

Petitioner worked as a secretary at the Arzadon Automotive and Car Service Center from February 28, 2001 to August 16,
2001. On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a book to an office located at another building but
when she returned to their office, the lights had been turned off and the gate was closed. Nevertheless, she went inside to get
her handbag.

On her way out, she saw Arzadon standing beside a parked van holding a pipe. He told her to go near him and upon
reaching his side, he threatened her with the pipe and forced her to lie on the pavement. He removed her pants and underwear,
and inserted his penis into her vagina. She wept and cried out for help but to no avail because there was nobody else in the
premises.

Petitioner did not report the incident because Arzadon threatened to kill her and her family. But when she discovered
that she was pregnant as a consequence of the rape, she narrated the incident to her parents. On July 24, 2002, petitioner filed
a complaint for rape against Arzadon.

On September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution [4] finding probable cause and
recommending the filing of an information for rape. Arzadon moved for reconsideration and during the clarificatory hearing held
on October 11, 2002, petitioner testified before the investigating prosecutor. However, she failed to attend the next hearing
hence, the case was provisionally dismissed.

On March 5, 2003, petitioner filed another Affidavit-Complaint[5] with a comprehensive account of the alleged rape
incident. The case was assigned to 2 nd Assistant Provincial Prosecutor Georgina Hidalgo. During the preliminary investigation,
petitioner appeared for clarificatory questioning. On June 11, 2003, the investigating prosecutor issued a Resolution [6] finding
that a prima facie case of rape exists and recommending the filing of the information.

Arzadon moved for reconsideration and requested that a panel of prosecutors be constituted to review the case. Thus, a panel
of prosecutors was created and after the clarificatory questioning, the panel issued on October 13, 2003 a Resolution[7] finding
probable cause and denying Arzadons motion for reconsideration.

An Information[8] for rape was filed before the Regional Trial Court, Branch 27, San Fernando, La Union on February 6, 2004,
docketed as Criminal Case No. 6415. Thereafter, Arzadon filed a Motion to Hold in Abeyance All Court Proceedings Including
the Issuance of a Warrant of Arrest and to Determine Probable Cause for the Purpose of Issuing a Warrant of Arrest.
[9]
On March 18, 2004, respondent Judge Antonio A. Carbonell granted the motion and directed petitioner and her witnesses to
take the witness stand for determination of probable cause.

Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause before the Department of
Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas Gutierrez found no probable cause and directed the
withdrawal of the Information in Criminal Case No. 6415.[10]

Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul Gonzales reversed the July 9,
2004 Resolution and issued another Resolution[11] finding that probable cause exists. Thus, a new Information[12] for rape was
filed against Arzadon docketed as Criminal Case No. 6983.

Consequently, Arzadon filed an Urgent Motion for Judicial Determination of Probable Cause for the Purpose of Issuing a
Warrant of Arrest.[13] In an Order dated August 11, 2005, respondent Judge Carbonell granted the motion and directed petitioner
and her witnesses to take the witness stand.

Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming that the documentary
evidence sufficiently established the existence of probable cause. Pending resolution thereof, she likewise filed a petition[14] with
this Court for the transfer of venue of Criminal Case No. 6983. The case was docketed as Administrative Matter No. 05-12-756-
RTC and entitled Re: Transfer of Venue of Criminal Case No. 6983, formerly Criminal Case No. 6415, from the Regional Trial
Court, Branch 27, San Fernando City, La Union, to any Court in Metro Manila.
In a Resolution[15] dated January 18, 2006, the Court granted petitioners request for transfer of venue. The case was
raffled to the Regional Trial Court of Manila, Branch 25, and docketed as Criminal Case No. 06-242289. However, the
proceedings have been suspended pending the resolution of this petition.

Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order dismissing Criminal Case
No. 6983 for lack of probable cause. Petitioners motion for reconsideration was denied hence, this petition.

Petitioner raises the following issues:[16]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN


EXCESS OF JURISDICTION WHEN IT GRANTED THE MOTION FOR DETERMINATION OF PROBABLE
CAUSE FILED BY THE PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF THE MOTION FOR
RECONSIDERATION

II

RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING GRAVE ABUSE OF DISCRETION


AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT ORDERED THE COMPLAINANT
AND WITNESSES TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING PROBABLE CAUSE

III

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE REFUSED TO INHIBIT
FROM FURTHER HANDLING THE CASE DESPITE WHISPERS OF DOUBT ON HIS BIAS AND
PARTIALITY

IV

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT ISSUED THE ORDER
OF FEBRUARY 3, 2006, DENYING THE MOTION FOR RECONSIDERATION, DESPITE THE SUPREME
COURT RESOLUTION OF JANUARY 18, 2006, GRANTING THE TRANSFER OF VENUE

Petitioner contends that the judge is not required to personally examine the complainant and her witnesses in satisfying himself
of the existence of probable cause for the issuance of a warrant of arrest. She argues that respondent Judge Carbonell should
have taken into consideration the documentary evidence as well as the transcript of stenographic notes which sufficiently
established the existence of probable cause.
Arzadon claims that the petition should be dismissed outright for being the wrong mode of appeal, it appearing that the issues
raised by petitioner properly fall under an action for certiorari under Rule 65, and not Rule 45, of the Rules of Court.

Respondent Judge Carbonell argues in his Comment[17] that the finding of probable cause by the investigating
prosecutor is not binding or obligatory, and that he was justified in requiring petitioner and her witnesses to take the witness
stand in order to determine probable cause.

The issues for resolution are 1) whether the petition should be dismissed for being the wrong mode of appeal; and 2)
whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of
probable cause.

The petition has merit.

A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule 65 in that the former
brings up for review errors of judgment while the latter concerns errors of jurisdiction or grave abuse of discretion amounting to
lack or excess of jurisdiction. Grave abuse of discretion is not an allowable ground under Rule 45.However, a petition for
review on certiorari under Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the
respondents abused their discretion in their questioned actions, as in the instant case.[18] While petitioner claims to have brought
the instant action under Rule 45, the grounds raised herein involve an alleged grave abuse of discretion on the part of
respondent Judge Carbonell. Accordingly, the Court shall treat the same as a petition for certiorari under Rule 65.

However, we must point out the procedural error committed by petitioner in directly filing the instant petition before this
Court instead of the Court of Appeals, thereby violating the principle of judicial hierarchy of courts. It is well-settled that although
the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted
freedom of choice of court forum.[19] In this case, however, the gravity of the offense charged and the length of time that has
passed since the filing of the complaint for rape, compel us to resolve the present controversy in order to avoid further delay.[20]

We thus proceed to the issue of whether respondent Judge Carbonell acted with grave abuse of discretion in
dismissing Criminal Case No. 6983 for lack of probable cause.

We rule in the affirmative.

Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that
petitioner and her witnesses failed to comply with his orders to take the witness stand. Thus

In RESUME therefore, as indubitably borne out by the case record and considering that the Private
Prosecutor, despite several admonitions contumaciously nay contemptuously refused to comply/obey this
Courts Orders of March 18, 2004, August 11, 2005 and eight (8) other similar Orders issued in open Court
that directed the complainant/witnesses to take the witness stand to be asked probing/clarificatory questions
consonant with cited jurisprudential rulings of the Supreme Court, this Court in the exercise of its discretion
and sound judgment finds and so holds that NO probable cause was established to warrant the issuance of
an arrest order and the further prosecution of the instant case.

Record also shows in no unclear terms that in all the scheduled hearings of the case, the accused
had always been present. A contrario, the private complainant failed to appear during the last four (4)
consecutive settings despite due notice without giving any explanation, which to the mind of the Court may
indicate an apparent lack of interest in the further prosecution of this case. That failure may even be
construed as a confirmation of the Defenses contention reflected in the case record, that the only party
interested in this case is the Private prosecutor, prodded by the accuseds alleged hostile siblings to continue
with the case.

WHEREFORE, premises considered, for utter lack of probable cause, the instant case is hereby
ordered DISMISSED.[21]

He claims that under Section 2, Article III of the 1987 Constitution, no 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.

However, in the leading case of Soliven v. Makasiar,[22] the Court explained that this constitutional provision does not
mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally
evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutors report and
require the submission of supporting affidavits of witnesses. Thus:

The addition of the word personally after the word determined and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to other responsible officers as may be authorized by law,
has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally
examine the complainant and his witnesses in his determination of probable cause for the issuance of
warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge
to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and
his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and
the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases
filed before their courts.[23]

We reiterated the above ruling in the case of Webb v. De Leon,[24] where we held that before issuing warrants of arrest,
judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial evidence.[25]

It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be
held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the
judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the
offense charged is the function of the investigating prosecutor.[26]

True, there are cases where the circumstances may call for the judges personal examination of the complainant and
his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the
determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure
of the evidence to show the existence of probable cause.[27] Otherwise, the judge may rely on the report of the investigating
prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the
report of the investigating prosecutor. In Okabe v. Gutierrez,[28] we stressed that the judge should consider not only the report of
the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the
accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any,
submitted to the court by the investigating prosecutor upon the filing of the Information. [29] If the report, taken together with the
supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the
complainant and his witnesses be conducted.

In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without taking into consideration the June
11, 2003 Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution of the panel of
prosecutors, and the July 1, 2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause
against Arzadon. Moreover, he failed to evaluate the evidence in support thereof. Respondent judges finding of lack of probable
cause was premised only on the complainants and her witnesses absence during the hearing scheduled by the respondent
judge for the judicial determination of probable cause.

Petitioner narrated in detail the alleged rape incident both in her Sinumpaang Salaysay[30] dated July 24, 2002 and
Complaint-Affidavit[31] dated March 5, 2003. She attended several clarificatory hearings that were conducted in the instant
case. The transcript of stenographic notes[32] of the hearing held on October 11, 2002 shows that she positively identified
Arzadon as her assailant, and the specific time and place of the incident. She also claimed that she bore a child as a result of
the rape and, in support of her contentions, presented the child and her birth certificate as evidence. In contrast, Arzadon
merely relied on the defense of alibi which is the weakest of all defenses.

After a careful examination of the records, we find that there is sufficient evidence to establish probable cause. The
gravamen of rape is the carnal knowledge by the accused of the private complainant under any of the circumstances provided
in Article 335 of the Revised Penal Code, as amended. [33] Petitioner has categorically stated that Arzadon raped her, recounting
her ordeal in detail during the preliminary investigations. Taken with the other evidence presented before the investigating
prosecutors, such is sufficient for purposes of establishing probable cause. It is well-settled that a finding of probable cause
need not be based on clear and convincing evidence beyond reasonable doubt. Probable cause is that which engenders a well-
founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. It
does not require that the evidence would justify conviction. [34]
It is clear therefore that respondent Judge Carbonell gravely abused his discretion in dismissing Criminal Case No.
6983 for lack of probable cause on the ground that petitioner and her witnesses failed to take the witness stand. Considering
there is ample evidence and sufficient basis on record to support a finding of probable cause, it was unnecessary for him to
take the further step of examining the petitioner and her witnesses. Moreover, he erred in holding that petitioners absences in
the scheduled hearings were indicative of a lack of interest in prosecuting the case. In fact, the records show that she has
relentlessly pursued the same.

Needless to say, a full-blown trial is to be preferred to ferret out the truth. [35] As it were, the incidents of this case have
been pending for almost five years without having even passed the preliminary investigation stage. Suffice to say that the
credibility of petitioner may be tested during the trial where the respective allegations and defenses of the complainant and the
accused are properly ventilated. It is only then that the truth as to Arzadons innocence or guilt can be determined.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court, Branch 27, San Fernando, La Union
dated December 16, 2005, and February 3, 2006 dismissing Criminal Case No. 6983 for lack of probable cause
are REVERSED and SET ASIDE, and the Information in the said case is hereby REINSTATED. The Regional Trial Court,
Branch 25, Manila is DIRECTED to take cognizance of the case and let the records thereof be REMANDED to the said court
for further proceedings.

SO ORDERED.
Republic of the Philippines

Supreme Court

Manila

THIRD DIVISION

RUBEN DEL CASTILLO @ BOY CASTILLO, G.R. No. 185128

Petitioner, [Formerly UDK No. 13980]

Present:

- versus - VELASCO, JR., J., Chairperson,

PERALTA,

MENDOZA,

REYES,* and

PEOPLE OF THE PHILIPPINES, PERLAS-BERNABE, JJ.

Respondent.

Promulgated:

January 30, 2012

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

DECISION

PERALTA, J.:

For this Court's consideration is the Petition for Review [1] on Certiorari under Rule 45 of Ruben del Castillo assailing
the Decision[2] dated July 31, 2006 and Resolution[3] dated December 13, 2007 of the Court of Appeals (CA) in CA-G.R. CR No.
27819, which affirmed the Decision[4] dated March 14, 2003 of the Regional Trial Court (RTC), Branch 12, Cebu, in Criminal
Case No. CBU-46291, finding petitioner guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act
(R.A.) 6425.

The facts, as culled from the records, are the following:


Pursuant to a confidential information that petitioner was engaged in selling shabu, police officers headed by SPO3 Bienvenido
Masnayon, after conducting surveillance and test-buy operation at the house of petitioner, secured a search warrant from the
RTC and around 3 o'clock in the afternoon of September 13, 1997, the same police operatives went to Gil Tudtud St., Mabolo,
Cebu City to serve the search warrant to petitioner.

Upon arrival, somebody shouted raid, which prompted them to immediately disembark from the jeep they were riding and went
directly to petitioner's house and cordoned it. The structure of the petitioner's residence is a two-storey house and the petitioner
was staying in the second floor. When they went upstairs, they met petitioner's wife and informed her that they will implement
the search warrant. But before they can search the area, SPO3 Masnayon claimed that he saw petitioner run towards a small
structure, a nipa hut, in front of his house. Masnayon chased him but to no avail, because he and his men were not familiar with
the entrances and exits of the place.

They all went back to the residence of the petitioner and closely guarded the place where the subject ran for cover. SPO3
Masnayon requested his men to get a barangay tanodand a few minutes thereafter, his men returned with two barangay
tanods.

In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister of petitioner named Dolly del Castillo, searched
the house of petitioner including the nipa hut where the petitioner allegedly ran for cover. His men who searched the residence
of the petitioner found nothing, but one of the barangay tanods was able to confiscate from the nipa hut several articles,
including four (4) plastic packs containing white crystalline substance. Consequently, the articles that were confiscated were
sent to the PNP Crime Laboratory for examination. The contents of the four (4) heat- sealed transparent plastic packs were
subjected to laboratory examination, the result of which proved positive for the presence of methamphetamine
hydrochloride, or shabu.

Thus, an Information was filed before the RTC against petitioner, charging him with violation of Section 16, Article III of R.A.
6425, as amended. The Information[5] reads:

That on or about the 13th day of September 1997, at about 3:00 p.m. in the City of Cebu, Philippines and
within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there
have in his possession and control four (4) packs of white crystalline powder, having a total weight of 0.31
gram, locally known as shabu, all containing methamphetamine hydrochloride, a regulated drug, without
license or prescription from any competent authority.

CONTRARY TO LAW.[6]

During arraignment, petitioner, with the assistance of his counsel, pleaded not guilty.[7] Subsequently, trial on the merits ensued.

To prove the earlier mentioned incident, the prosecution presented the testimonies of SPO3 Bienvenido Masnayon, PO2 Milo
Arriola, and Forensic Analyst, Police Inspector Mutchit Salinas.
The defense, on the other hand, presented the testimonies of petitioner, Jesusa del Castillo, Dalisay del Castillo and Herbert
Aclan, which can be summarized as follows:

On September 13, 1997, around 3 o'clock in the afternoon, petitioner was installing the electrical wirings and airconditioning
units of the Four Seasons Canteen and Beauty Parlor at Wacky Bldg., Cabancalan, Cebu. He was able to finish his job
around 6 o'clock in the evening, but he was engaged by the owner of the establishment in a conversation.He was able to go
home around 8:30-9 o'clock in the evening. It was then that he learned from his wife that police operatives searched his house
and found nothing. According to him, the small structure, 20 meters away from his house where they found the confiscated
items, was owned by his older brother and was used as a storage place by his father.

After trial, the RTC found petitioner guilty beyond reasonable of the charge against him in the Information. The dispositive
portion of the Decision reads:

WHEREFORE, premises considered, this Court finds the accused Ruben del Castillo alyas Boy Castillo,
GUILTY of violating Section 16, Article III, Republic Act No. 6425, as amended.There being no mitigating nor
aggravating circumstances proven before this Court, and applying the Indeterminate Sentence Law, he is
sentenced to suffer the penalty of Six (6) Months and One (1) Day as Minimum and Four (4) Years and Two
(2) Months as Maximum of Prision Correccional.

The four (4) small plastic packets of white crystalline substance having a total weight of 0.31 gram, positive
for the presence of methamphetamine hydrochloride, are ordered confiscated and shall be destroyed in
accordance with the law.

SO ORDERED.[8]

Aggrieved, petitioner appealed his case with the CA, but the latter affirmed the decision of the RTC, thus:

WHEREFORE, the challenged Decision is AFFIRMED in toto and the appeal is DISMISSED, with costs
against accused-appellant.

SO ORDERED.[9]

After the motion for reconsideration of petitioner was denied by the CA, petitioner filed with this Court the present petition
for certiorari under Rule 45 of the Rules of Court with the following arguments raised:
1. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE PROVISIONS OF THE
CONSTITUTION, THE RULES OF COURT AND ESTABLISHED JURISPRUDENCE VIS-A-VIS VALIDITY
OF SEARCH WARRANT NO. 570-9-1197-24;

2. THE COURT OF APPEALS ERRED IN RULING THAT THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER ALLEGEDLY FOUND ON THE FLOOR OF THE NIPA HUT OR STRUCTURE
ARE ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER, NOT ONLY BECAUSE THE SAID COURT
SIMPLY PRESUMED THAT IT WAS USED BY THE PETITIONER OR THAT THE PETITIONER RAN TO IT
FOR COVER WHEN THE SEARCHING TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO, PRESUMING
THAT THE SAID NIPA HUT OR STRUCTURE WAS INDEED USED BY THE PETITIONER AND THE FOUR
(4) PACKS OF WHITE CRYSTALLINE POWDER WERE FOUND THEREAT. THE SUBJECT FOUR (4)
PACKS OF WHITE CRYSTALLINE POWDER ARE FRUITS OF THE POISONOUS TREE; and

3. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE ELEMENT OF


POSSESSION AS AGAINST THE PETITIONER, AS IT WAS IN VIOLATION OF THE ESTABLISHED
JURISPRUDENCE ON THE MATTER. HAD THE SAID COURT PROPERLY APPLIED THE ELEMENT IN
QUESTION, IT COULD HAVE BEEN ASSAYED THAT THE SAME HAD NOT BEEN PROVEN. [10]

The Office of the Solicitor General (OSG), in its Comment dated February 10, 2009, enumerated the following counter-
arguments:

SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge Priscilla S. Agana of Branch 24,
Regional Trial Court of Cebu City is valid.

II

The four (4) packs of shabu seized inside the shop of petitioner are admissible in evidence against him.

III

The Court of Appeals did not err in finding him guilty of illegal possession of prohibited drugs.[11]

Petitioner insists that there was no probable cause to issue the search warrant, considering that SPO1 Reynaldo Matillano, the
police officer who applied for it, had no personal knowledge of the alleged illegal sale of drugs during a test-buy operation
conducted prior to the application of the same search warrant. The OSG, however, maintains that the petitioner, aside from
failing to file the necessary motion to quash the search warrant pursuant to Section 14, Rule 127 of the Revised Rules on
Criminal Procedure, did not introduce clear and convincing evidence to show that Masnayon was conscious of the falsity of his
assertion or representation.
Anent the second argument, petitioner asserts that the nipa hut located about 20 meters away from his house is no longer
within the permissible area that may be searched by the police officers due to the distance and that the search warrant did not
include the same nipa hut as one of the places to be searched. The OSG, on the other hand, argues that the constitutional
guaranty against unreasonable searches and seizure is applicable only against government authorities and not to private
individuals such as the barangay tanodwho found the folded paper containing packs of shabu inside the nipa hut.

As to the third argument raised, petitioner claims that the CA erred in finding him guilty beyond reasonable doubt of illegal
possession of prohibited drugs, because he could not be presumed to be in possession of the same just because they were
found inside the nipa hut. Nevertheless, the OSG dismissed the argument of the petitioner, stating that, when prohibited and
regulated drugs are found in a house or other building belonging to and occupied by a particular person, the presumption
arises that such person is in possession of such drugs in violation of law, and the fact of finding the same is sufficient to
convict.

This Court finds no merit on the first argument of petitioner.

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must be
determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and
the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally known to them; and (5)
the warrant specifically describes the place to be searched and the things to be seized. [12] According to petitioner, there was no
probable cause. Probable cause for a search warrant is defined as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection
with the offense are in the place sought to be searched.[13] A finding of probable cause needs only to rest on evidence showing
that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands
more than bare suspicion; it requires less than evidence which would justify conviction. [14] The judge, in determining probable
cause, is to consider the totality of the circumstances made known to him and not by a fixed and rigid formula, [15] and must
employ a flexible, totality of the circumstances standard.[16] The existence depends to a large degree upon the finding or opinion
of the judge conducting the examination. This Court, therefore, is in no position to disturb the factual findings of the judge which
led to the issuance of the search warrant. A magistrate's determination of probable cause for the issuance of a search warrant
is paid great deference by a reviewing court, as long as there was substantial basis for that determination. [17] Substantial basis
means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet
and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be
seized are in the place sought to be searched. [18] A review of the records shows that in the present case, a substantial basis
exists.

With regard to the second argument of petitioner, it must be remembered that the warrant issued must particularly describe the
place to be searched and persons or things to be seized in order for it to be valid. A designation or description that points out
the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the
constitutional requirement of definiteness.[19] In the present case, Search Warrant No. 570-9-1197-24 [20] specifically designates
or describes the residence of the petitioner as the place to be searched. Incidentally, the items were seized by a barangay
tanod in a nipa hut, 20 meters away from the residence of the petitioner.The confiscated items, having been found in a place
other than the one described in the search warrant, can be considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of petitioner's constitutional guaranty against unreasonable searches and
seizure. The OSG argues that, assuming that the items seized were found in another place not designated in the search
warrant, the same items should still be admissible as evidence because the one who discovered them was a barangay
tanod who is a private individual, the constitutional guaranty against unreasonable searches and seizure being applicable only
against government authorities. The contention is devoid of merit.
It was testified to during trial by the police officers who effected the search warrant that they asked the assistance of
the barangay tanods, thus, in the testimony of SPO3 Masnayon:

Fiscal Centino:

Q For how long did the chase take place?

A Just a very few moments.

Q After that, what did you [do] when you were not able to reach him?

A I watched his shop and then I requested my men to get a barangay tanod.

Q Were you able to get a barangay tanod?

A Yes.

Q Can you tell us what is the name of the barangay tanod?

A Nelson Gonzalado.

Q For point of clarification, how many barangay tanod [did] your driver get?

A Two.

Q What happened after that?

A We searched the house, but we found negative.

Q Who proceeded to the second floor of the house?

A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.

Q What about you, where were you?

A I [was] watching his shop and I was with Matillano.

Q What about the barangay tanod?

A Together with Milo and Pogoso.


Q When the search at the second floor of the house yielded negative what did you do?

A They went downstairs because I was suspicious of his shop because he ran from his shop, so we
searched his shop.

Q Who were with you when you searched the shop?

A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del Castillo named Dolly del
Castillo.

Q You mean to say, that when (sic) SPO1 Reynaldo Matillano, Barangay Tanod Nilo Gonzalado and
the elder sister of Ruben del Castillo were together in the shop?

A Yes.

Q What happened at the shop?

A One of the barangay tanods was able to pick up white folded paper.

Q What [were] the contents of that white folded paper?

A A plastic pack containing white crystalline.

Q Was that the only item?

A There are others like the foil, scissor.

Q Were you present when those persons found those tin foil and others inside the electric shop?

A Yes.[21]

The fact that no items were seized in the residence of petitioner and that the items that were actually seized were found in
another structure by a barangay tanod, was corroborated by PO2 Arriola, thus:

FISCAL:

Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you still recall what took place?

A We cordoned the area.


Q And after you cordoned the area, did anything happen?

A We waited for the barangay tanod.

Q And did the barangay tanod eventually appear?

A Yes. And then we started our search in the presence of Ruben del Castillo's wife.

Q What is the name of the wife of Ruben del Castillo?

A I cannot recall her name, but if I see her I can recall [her] face.

Q What about Ruben del Castillo, was she around when [you] conducted the search?

A No. Ruben was not in the house. But our team leader, team mate Bienvenido Masnayon saw that Ruben
ran away from his adjacent electronic shop near his house, in front of his house.

Q Did you find anything during the search in the house of Ruben del Castillo?

A After our search in the house, we did not see anything. The house was clean.

Q What did you do afterwards, if any?

A We left (sic) out of the house and proceeded to his electronic shop.

Q Do you know the reason why you proceeded to his electronic shop?

A Yes. Because our team leader Bienvenido Masnayon saw that (sic) Ruben run from that store and
furthermore the door was open.

Q How far is the electronic shop from the house of Ruben del Castillo?

A More or less, 5 to 6 meters in front of his house.

xxxx

Q So, who entered inside the electronic shop?

A The one who first entered the electronic shop is our team leader Bienvenido Masnayon.
Q You mentioned that Masnayon entered first. Do you mean to say that there were other persons or other
person that followed after Masnayon?

A Then we followed suit.

Q All of your police officers and the barangay tanod followed suit?

A I led Otadoy and the barangay tanod.

Q What about you?

A I also followed suit.

Q And did anything happen inside the shop of Ruben del Castillo?

A It was the barangay tanod who saw the folded paper and I saw him open the folded paper which
contained four shabu deck.

Q How far were you when you saw the folded paper and the tanod open the folded paper?

A We were side by side because the shop was very small.[22]

SPO1 Pogoso also testified on the same matter, thus:

FISCAL CENTINO:

Q And where did you conduct the search, Mr. Witness?

A At his residence, the two-storey house.

Q Among the three policemen, who were with you in conducting the search at the residence of the accused?

A I, Bienvenido Masnayon.

Q And what transpired after you searched the house of Ruben del Castillo?

A Negative, no shabu.
Q And what happened afterwards, if any?

A We went downstairs and proceeded to the small house.

Q Can you please describe to this Honorable Court, what was that small house which you proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.

Q And who among the team went inside?

A PO2 Milo Areola and the Barangay Tanod.[23]

Having been established that the assistance of the barangay tanods was sought by the police authorities who effected the
searched warrant, the same barangay tanods therefore acted as agents of persons in authority. Article 152 of the Revised
Penal Code defines persons in authority and agents of persons in authority as:

x x x any person directly vested with jurisdiction, whether as an individual or as a member of some court or
governmental corporation, board or commission, shall be deemed a person in authority. A barangay captain
and a barangay chairman shall also be deemed a person in authority.

A person who, by direct provision of law or by election or by appointment by competent authority, is charged
with the maintenance of public order and the protection and security of life and property, such as
barrio councilman, barrio policeman and barangay leader, and any person who comes to the aid of
persons in authority, shall be deemed an agent of a person in authority.

The Local Government Code also contains a provision which describes the function of a barangay tanod as an agent of
persons in authority. Section 388 of the Local Government Code reads:
SEC. 388. Persons in Authority. - For purposes of the Revised Penal Code, the punong barangay,
sangguniang barangay members, and members of the lupong tagapamayapa in each barangay shall be
deemed as persons in authority in their jurisdictions, while other barangay officials and members who
may be designated by law or ordinance and charged with the maintenance of public order, protection
and security of life and property, or the maintenance of a desirable and balanced environment, and
any barangay member who comes to the aid of persons in authority, shall be deemed agents of
persons in authority.

By virtue of the above provisions, the police officers, as well as the barangay tanods were acting as agents of a person in
authority during the conduct of the search. Thus, the search conducted was unreasonable and the confiscated items are
inadmissible in evidence. Assuming ex gratia argumenti that the barangay tanod who found the confiscated items is considered
a private individual, thus, making the same items admissible in evidence, petitioner's third argument that the prosecution failed
to establish constructive possession of the regulated drugs seized, would still be meritorious.

Appellate courts will generally not disturb the factual findings of the trial court since the latter has the unique opportunity to
weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying,
[24]
unless attended with arbitrariness or plain disregard of pertinent facts or circumstances, the factual findings are accorded the
highest degree of respect on appeal[25] as in the present case.

It must be put into emphasis that this present case is about the violation of Section 16 of R.A. 6425. In every prosecution for the
illegal possession of shabu, the following essential elements must be established: (a) the accused is found in possession of a
regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge
that the said drug is a regulated drug.[26]

In People v. Tira,[27] this Court explained the concept of possession of regulated drugs, to wit:

This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the
prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession,
under the law, includes not only actual possession, but also constructive possession. Actual possession exists
when the drug is in the immediate physical possession or control of the accused. On the other hand,
constructive possession exists when the drug is under the dominion and control of the accused or when he
has the right to exercise dominion and control over the place where it is found. Exclusive possession or
control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion
over the place where the contraband is located, is shared with another.[28]

While it is not necessary that the property to be searched or seized should be owned by the person against whom the search
warrant is issued, there must be sufficient showing that the property is under appellants control or possession. [29] The CA, in its
Decision, referred to the possession of regulated drugs by the petitioner as a constructive one. Constructive possession exists
when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over
the place where it is found.[30] The records are void of any evidence to show that petitioner owns the nipa hut in question nor
was it established that he used the said structure as a shop. The RTC, as well as the CA, merely presumed that petitioner used
the said structure due to the presence of electrical materials, the petitioner being an electrician by profession. The CA, in its
Decision, noted a resolution by the investigating prosecutor, thus:

x x x As admitted by respondent's wife, her husband is an electrician by occupation. As such, conclusion


could be arrived at that the structure, which housed the electrical equipments is actually used by the
respondent. Being the case, he has control of the things found in said structure.[31]

In addition, the testimonies of the witnesses for the prosecution do not also provide proof as to the ownership of the structure
where the seized articles were found. During their direct testimonies, they just said, without stating their basis, that the same
structure was the shop of petitioner. [32] During the direct testimony of SPO1 Pogoso, he even outrightly concluded that the
electrical shop/nipa hut was owned by petitioner, thus:

FISCAL CENTINO:

Q Can you please describe to this Honorable Court, what was that small house which you proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.[33]

However, during cross-examination, SPO3 Masnayon admitted that there was an electrical shop but denied what he said in his
earlier testimony that it was owned by petitioner, thus:

ATTY. DAYANDAYAN:

Q You testified that Ruben del Castillo has an electrical shop, is that correct?

A He came out of an electrical shop. I did not say that he owns the shop.
Q Now, this shop is within a structure?

A Yes.

Q How big is the structure?

A It is quite a big structure, because at the other side is a mahjong den and at the other side is a structure
rented by a couple.[34]

The prosecution must prove that the petitioner had knowledge of the existence and presence of the drugs in the place under his
control and dominion and the character of the drugs. [35] With the prosecution's failure to prove that the nipa hut was under
petitioner's control and dominion, there casts a reasonable doubt as to his guilt. In considering a criminal case, it is critical to
start with the law's own starting perspective on the status of the accused - in all criminal prosecutions, he is presumed innocent
of the charge laid unless the contrary is proven beyond reasonable doubt.[36] Proof beyond reasonable doubt, or that quantum of
proof sufficient to produce a moral certainty that would convince and satisfy the conscience of those who act in judgment, is
indispensable to overcome the constitutional presumption of innocence.[37]

WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-G. R. No. 27819, which affirmed the Decision
dated March 14, 2003 of the Regional Trial Court, Branch 12, Cebu, in Criminal Case No. CBU-46291 is
hereby REVERSED and SET ASIDE. Petitioner Ruben del Castillo is ACQUITTED on reasonable doubt.

SO ORDERED.
Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

RODEL LUZ y ONG, G. R. No. 197788


Petitioner,

Present:

CARPIO, J., Chairperson,


- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.

PEOPLE OF THE PHILIPPINES,[1] Promulgated:


Respondent.
February 29, 2012

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

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA) Decision in
CA-G.R. CR No. 32516 dated 18 February 2011[2]and Resolution dated 8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution, are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police
Station as a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 oclock in the
morning, he saw the accused, who was coming from the direction of Panganiban Drive and going to
Diversion Road, Naga City, driving a motorcycle without a helmet; that this prompted him to flag down the
accused for violating a municipal ordinance which requires all motorcycle drivers to wear helmet (sic) while
driving said motor vehicle; that he invited the accused to come inside their sub-station since the place where
he flagged down the accused is almost in front of the said sub-station; that while he and SPO1 Rayford
Brillante were issuing a citation ticket for violation of municipal ordinance, he noticed that the accused was
uneasy and kept on getting something from his jacket; that he was alerted and so, he told the accused to take
out the contents of the pocket of his jacket as the latter may have a weapon inside it; that the accused
obliged and slowly put out the contents of the pocket of his jacket which was a nickel-like tin or metal
container about two (2) to three (3) inches in size, including two (2) cellphones, one (1) pair of scissors and
one (1) Swiss knife; that upon seeing the said container, he asked the accused to open it; that after the
accused opened the container, he noticed a cartoon cover and something beneath it; and that upon his
instruction, the accused spilled out the contents of the container on the table which turned out to be four (4)
plastic sachets, the two (2) of which were empty while the other two (2) contained suspected shabu.[3]
Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of Not guilty to the charge of illegal
possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the prosecution. On the other
hand, petitioner testified for himself and raised the defense of planting of evidence and extortion.

In its 19 February 2009 Decision, [4] the RTC convicted petitioner of illegal possession of dangerous drugs [5] committed
on 10 March 2003. It found the prosecution evidence sufficient to show that he had been lawfully arrested for a traffic violation
and then subjected to a valid search, which led to the discovery on his person of two plastic sachets later found to
contain shabu. The RTC also found his defense of frame-up and extortion to be weak, self-serving and unsubstantiated. The
dispositive portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond
reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and sentencing
him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years and (1) day, as
minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred Thousand Pesos
(300,000.00).

The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency for
its proper disposition and destruction in accordance with law.

SO ORDERED.[6]

Upon review, the CA affirmed the RTCs Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari dated 1 September
2011. In a Resolution dated 12 October 2011, this Court required respondent to file a comment on the Petition. On 4 January
2012, the latter filed its Comment dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE POLICE


OFFICER CANNOT BE RELIED UPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT SPECIMEN HAS
BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE
REASONABLE DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He claims that the finding
that there was a lawful arrest was erroneous, since he was not even issued a citation ticket or charged with violation of the city
ordinance. Even assuming there was a valid arrest, he claims that he had never consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:
It is beyond dispute that the accused was flagged down and apprehended in this case by Police Officers
Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the use of crash helmet
by motorcycle drivers and riders thereon in the City of Naga and prescribing penalties for violation
thereof. The accused himself admitted that he was not wearing a helmet at the time when he was flagged
down by the said police officers, albeit he had a helmet in his possession. Obviously, there is legal basis on
the part of the apprehending officers to flag down and arrest the accused because the latter was actually
committing a crime in their presence, that is, a violation of City Ordinance No. 98-012. In other words, the
accused, being caught in flagrante delicto violating the said Ordinance, he could therefore be lawfully stopped
or arrested by the apprehending officers. x x x.[8]

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal cases, an appeal throws
the entire case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed
judgment, or even reverse the trial courts decision based on grounds other than those that the parties raised as errors.[9]

First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic violation, he was not, ipso
facto and solely for this reason, arrested.

Arrest is the taking of a person into custody in order that he or she may be bound to answer for the commission of an
offense.[10] It is effected by an actual restraint of the person to be arrested or by that persons voluntary submission to the
custody of the one making the arrest. Neither the application of actual force, manual touching of the body, or physical restraint,
nor a formal declaration of arrest, is required. It is enough that there be an intention on the part of one of the parties to arrest
the other, and that there be an intent on the part of the other to submit, under the belief and impression that submission is
necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a traffic violation
is not the arrest of the offender, but the confiscation of the drivers license of the latter:

SECTION 29. Confiscation of Driver's License. Law enforcement and peace officers of other
agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any
regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to any provisions of
this Act, confiscate the license of the driver concerned and issue a receipt prescribed and issued by the
Bureau therefor which shall authorize the driver to operate a motor vehicle for a period not exceeding
seventy-two hours from the time and date of issue of said receipt. The period so fixed in the receipt shall not
be extended, and shall become invalid thereafter. Failure of the driver to settle his case within fifteen days
from the date of apprehension will be a ground for the suspension and/or revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual[12] provides the following procedure for flagging down vehicles
during the conduct of checkpoints:

SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a
general concept and will not apply in hot pursuit operations. The mobile car crew shall undertake the
following, when applicable: x x x

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation Report
(TVR). Never indulge in prolonged, unnecessary conversation or argument with the driver or any of
the vehicles occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to have been
under arrest. There was no intention on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into custody.
Prior to the issuance of the ticket, the period during which petitioner was at the police station may be characterized merely as
waiting time. In fact, as found by the trial court, PO3 Alteza himself testified that the only reason they went to the police sub-
station was that petitioner had been flagged down almost in front of that place. Hence, it was only for the sake of convenience
that they were waiting there. There was no intention to take petitioner into custody.

In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed at length whether the roadside
questioning of a motorist detained pursuant to a routine traffic stop should be considered custodial interrogation. The Court held
that, such questioning does not fall under custodial interrogation, nor can it be considered a formal arrest, by virtue of the
nature of the questioning, the expectations of the motorist and the officer, and the length of time the procedure is conducted. It
ruled as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails the freedom of action of
the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either
to ignore a policemans signal to stop ones car or, once having stopped, to drive away without permission. x x
x

However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized
by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in
those types of situations in which the concerns that powered the decision are implicated. Thus, we must
decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise
of his privilege against self-incrimination to require that he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced
to speak where he would not otherwise do so freely, Miranda v. Arizona, 384 U. S., at 467. First, detention
of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of
roadside detentions last only a few minutes. A motorists expectations, when he sees a policemans light
flashing behind him, are that he will be obliged to spend a short period of time answering questions and
waiting while the officer checks his license and registration, that he may then be given a citation, but that in
the end he most likely will be allowed to continue on his way. In this respect, questioning incident to an
ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in
which the detainee often is aware that questioning will continue until he provides his interrogators the
answers they seek. See id., at 451.

Second, circumstances associated with the typical traffic stop are not such that the motorist
feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a
citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of
the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at
least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-called Terry stop, see
Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The comparatively nonthreatening character
of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject
to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that
persons temporarily detained pursuant to such stops are not in custody for the purposes of Miranda.

xxxxxxxxx

We are confident that the state of affairs projected by respondent will not come to pass. It is settled
that the safeguards prescribed by Miranda become applicable as soon as a suspects freedom of action is
curtailed to a degree associated with formal arrest. California v. Beheler, 463 U. S. 1121, 1125 (1983) (per
curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that
renders him in custody for practical purposes, he will be entitled to the full panoply of protections prescribed
by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest questions while still at the
scene of the traffic stop, he was not at that moment placed under custody (such that he should have been apprised of
his Miranda rights), and neither can treatment of this sort be fairly characterized as the functional equivalent of a formal arrest.
Similarly, neither can petitioner here be considered under arrest at the time that his traffic citation was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the failure to wear a crash
helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if
the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a
warrantless arrest be made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an intent on the part of the
police officer to deprive the motorist of liberty, or to take the latter into custody, the former may be deemed to have arrested the
motorist. In this case, however, the officers issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest
for the same violation.

Even if one were to work under the assumption that petitioner was deemed arrested upon being flagged down for a
traffic violation and while awaiting the issuance of his ticket, then the requirements for a valid arrest were not
complied with.

This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to inform the latter
of the reason for the arrest and must show that person the warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that any statement they might make could be used against them. [14] It
may also be noted that in this case, these constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person apprehended due to
a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce
or trick captive suspects into confessing, to relieve the inherently compelling pressures generated by the
custodial setting itself, which work to undermine the individuals will to resist, and as much as possible to free
courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular
confessions were voluntary. Those purposes are implicated as much by in-custody questioning of persons
suspected of misdemeanors as they are by questioning of persons suspected of felonies.

If it were true that petitioner was already deemed arrested when he was flagged down for a traffic violation and while he waiting
for his ticket, then there would have been no need for him to be arrested for a second timeafter the police officers allegedly
discovered the drugsas he was already in their custody.

Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal.

The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental to a lawful arrest; (ii)
search of evidence in plain view; (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) a
stop and frisk search; and (vii) exigent and emergency circumstances. [15] None of the above-mentioned instances, especially a
search incident to a lawful arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in plain view. It was actually
concealed inside a metal container inside petitioners pocket. Clearly, the evidence was not immediately apparent.[16]

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear and
convincing evidence.[17] It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be
unequivocal, specific, intelligently given and uncontaminated by any duress or coercion. While the prosecution claims that
petitioner acceded to the instruction of PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent
consent. In fact, the RTC found that petitioner was merely told to take out the contents of his pocket.[18]

Whether consent to the 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 the defendant was in a public or a secluded
location; (3) whether the defendant 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 defendants belief that no incriminating evidence would 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 that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was freely and voluntarily given. [19] In this case, all that was alleged
was that petitioner was alone at the police station at three in the morning, accompanied by several police officers. These
circumstances weigh heavily against a finding of valid consent to a warrantless search.

Neither does the search qualify under the stop and frisk rule. While the rule normally applies when a police officer observes
suspicious or unusual conduct, which may lead him to believe that a criminal act may be afoot, the stop and frisk is merely a
limited protective search of outer clothing for weapons.[20]

In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops a person for speeding and correspondingly
issues a citation instead of arresting the latter, this procedure does not authorize the officer to conduct a full search of the car.
The Court therein held that there was no justification for a full-blown search when the officer does not arrest the motorist.
Instead, police officers may only conduct minimal intrusions, such as ordering the motorist to alight from the car or doing a
patdown:

In Robinson, supra, we noted the two historical rationales for the search incident to arrest exception:
(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for
later use at trial. x x x But neither of these underlying rationales for the search incident to arrest exception is
sufficient to justify the search in the present case.

We have recognized that the first rationaleofficer safetyis both legitimate and weighty, x x x The
threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a
custodial arrest. In Robinson, we stated that a custodial arrest involves danger to an officer because of the
extended exposure which follows the taking of a suspect into custody and transporting him to the police
station. 414 U. S., at 234-235. We recognized that [t]he danger to the police officer flows from the fact of the
arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest. Id., at 234, n.
5. A routine traffic stop, on the other hand, is a relatively brief encounter and is more analogous to a
so-called Terry stop . . . than to a formal arrest. Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also
Cupp v. Murphy, 412 U. S. 291, 296 (1973) (Where there is no formal arrest . . . a person might well be less
hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence).

This is not to say that the concern for officer safety is absent in the case of a routine traffic
stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for
officer safety in this context may justify the minimal additional intrusion of ordering a driver and
passengers out of the car, it does not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search authority Iowa urges, officers have other,
independent bases to search for weapons and protect themselves from danger. For example, they may order
out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; perform a
patdown of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous,
Terry v. Ohio, 392 U. S. 1 (1968); conduct a Terry patdown of the passenger compartment of a vehicle upon
reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan
v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the passenger compartment,
including any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460
(1981).
Nor has Iowa shown the second justification for the authority to search incident to arrestthe need to discover
and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence
necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to
be found either on the person of the offender or in the passenger compartment of the car. (Emphasis
supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to object to the illegality of his arrest at the
earliest opportunity, a waiver of an illegal warrantless arrest does not, however, mean a waiver of the inadmissibility of evidence
seized during the illegal warrantless arrest.[22]

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures.[23] Any evidence obtained in violation of said right shall be inadmissible for any purpose in
any proceeding. 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 citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of government.[24]

The subject items seized during the illegal arrest are inadmissible.[25] The drugs are the very corpus delicti of the crime
of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of the
accused.[26]

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in CA-G.R. CR No.
32516 affirming the judgment of conviction dated 19 February 2009 of the Regional Trial Court, 5 th Judicial Region, Naga City,
Branch 21, in Criminal Case No. RTC 2003-0087, is hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is
hereby ACQUITTED and ordered immediately released from detention, unless his continued confinement is warranted by some
other cause or ground.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

SOCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870


Petitioner,
- versus -

DANGEROUS DRUGS BOARD and


PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),
Respondents.
x-----------------------------------------------x
ATTY. MANUEL J. LASERNA, JR., G.R. No. 158633
Petitioner,

- versus -

DANGEROUS DRUGS BOARD and


PHILIPPINE DRUG ENFORCEMENT
AGENCY,
Respondents.
x-----------------------------------------------x
AQUILINO Q. PIMENTEL, JR., G.R. No. 161658
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS, Promulgated:


Respondent.
November 3, 2008
x-----------------------------------------------------------------------------------------x
DECISION

VELASCO, JR., J.:


In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office,
students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before
the prosecutors office with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:


SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic
laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the
quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the
screening test which will determine the positive result as well as the type of drug used and the confirmatory
test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug
testing:

xxxx

(c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall,
pursuant to the related rules and regulations as contained in the schools student handbook and with notice to
the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.Officers and employees of public and private
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the
companys work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutors office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo
a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use
shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and
regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized
national and local elections. The pertinent portions of the said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing.x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory
drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at
all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of
candidates they are electing and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas
Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate,
as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to
candidates for public office[:]

SECTION 1. Coverage.All candidates for public office, both national and local, in the May 10, 2004
Synchronized National and Local Elections shall undergo mandatory drug test in government forensic
laboratories or any drug testing laboratories monitored and accredited by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices
and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first
list shall consist of those candidates who complied with the mandatory drug test while the second list shall
consist of those candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates.Before the start of the campaign period, the
[COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall consist of those candidates who failed to
comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.No person elected to any
public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with
the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10, 2004 elections,
[1]
filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for
senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing
Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and,
on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a
resident of the Philippines for not less than two years immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for,
elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and
Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional
qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous


Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit
the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f),
and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue
delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug
testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or
an employee deemed undesirable. And for a third, a persons constitutional right against unreasonable searches is also
breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under
Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to
privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the
due process and equal protection guarantees.

The Issue on Locus Standi


First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and
Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation
of the constitutional rights mentioned in their separate petitions.[2]

It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which
involves the statute sought to be reviewed.[3] But even with the presence of an actual case or controversy, the Court may refuse
to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to
challenge it.[4] To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of
the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be
redressed by a favorable action.[5]

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary
citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overarching significance to society, or of paramount public interest.[6] There is no doubt that Pimentel, as senator
of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial
interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is
wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest
involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for
senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid
down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right
to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue
delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an
additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a
candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship,
(2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for
senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate.
The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken
the force of a constitutional mandate,[7] or alter or enlarge the Constitution.

Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as,
unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and
void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with
the Constitution.[8] In the discharge of their defined functions, the three departments of government have no choice but to yield
obedience to the commands of the Constitution. Whatever limits it imposes must be observed.[9]

Congress inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927,
in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government, like the boundaries of
the ocean, are unlimited. In constitutional governments, however, as well as governments acting under
delegated authority, the powers of each of the departments x x x are limited and confined within the four walls
of the constitution or the charter, and each department can only exercise such powers as are necessarily
implied from the given powers. The Constitution is the shore of legislative authority against which the waves
of legislative enactment may dash, but over which it cannot leap.[10]

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which
circumscribe both the exercise of the power itself and the allowable subjects of legislation. [11] The substantive constitutional
limitations are chiefly found in the Bill of Rights[12] and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the
qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating
rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the
Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the
COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be
defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.[13]
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the
qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably
requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of
candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-
elect. The COMELEC resolution completes the chain with the proviso that [n]o person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug test. Viewed, therefore, in its proper context, Sec. 36(g) of
RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the
minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to
be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office
for non-compliance with the drug-testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly
state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy.
This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without
exception, made drug-testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer
the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public
office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the
assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165
into a pure jargon without meaning and effect whatsoever.
While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its
terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral
event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as
an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its
having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and
serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public
and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug
and safeguard in the process the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous
drugs. This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of an
intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of
planning, implementation and enforcement of anti-drug abuse policies, programs and projects. [14] The primary legislative intent
is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily
treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo
rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.A
drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her
parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that
the applicant be examined for drug dependency. If the examination x x x results in the certification that the
applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in
a Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.A drug
dependent under the voluntary submission program, who is finally discharged from confinement, shall be
exempt from the criminal liability under Section 15 of this Act subject to the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive
effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to
drug dependency. Their recovery is also at a depressingly low rate.[15]

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure[16] under Sec. 2, Art. III[17] of the Constitution. But while the right to privacy has long
come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the
medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus,
the issue tendered in these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among
school children, we turn to the teachings of VernoniaSchool District 47J v. Acton (Vernonia) and Board of Education of
Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),[18]both fairly pertinent US
Supreme Court-decided cases involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective
institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required
random urinalysis drug testing for the schools athletes. James Acton, a high school student, was denied participation in the
football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the schools drug
testing policy violated, inter alia, the Fourth Amendment[19] of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools
stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate,
have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress
before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree
of school supervision and regulation; (5) requiring urine samples does not invade a students privacy since a student need not
undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs
on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth[20] and 14th
Amendments and declared the random drug-testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school
students desiring to join extra-curricular activities.Lindsay Earls, a member of the show choir, marching band, and academic
team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth
and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their
peers in locker rooms, non-athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the
basis of the schools custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and
an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding
the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that
such a test was a kind of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an
adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco
parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may
reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for
admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of
the people,[21] particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective
method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only
acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the
government, are to be promoted and protected. To borrow from Vernonia, [d]eterring drug use by our Nations schoolchildren is
as important as enhancing efficient enforcement of the Nations laws against the importation of drugs; the necessity for the State
to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire
student body and faculty.[22] Needless to stress, the random testing scheme provided under the law argues against the idea that
the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36
of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The
Court notes in this regard that petitioner SJS, other than saying that subjecting almost everybody to drug testing, without
probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,[23] has failed to show how the
mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and
constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution. [24] Petitioner Lasernas lament is
just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without
elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests violate a citizens constitutional right to privacy and
right against unreasonable search and seizure. They are quoted extensively hereinbelow.[25]

The essence of privacy is the right to be left alone. [26] In context, the right to privacy means the right to be free from
unwarranted exploitation of ones person or from intrusion into ones private activities in such a way as to cause humiliation to a
persons ordinary sensibilities. [27] And while there has been general agreement as to the basic function of the guarantee against
unwarranted search, translation of the abstract prohibition against unreasonable searches and seizures into workable broad
guidelines for the decision of particular cases is a difficult task, to borrow from C. Camara v. Municipal Court.[28] Authorities are
agreed though that the right to privacy yields to certain paramount rights of the public and defers to the states exercise of police
power.[29]

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, reasonableness is the
touchstone of the validity of a government search or intrusion. [30] And whether a search at issue hews to the reasonableness
standard is judged by the balancing of the government-mandated intrusion on the individuals privacy interest against the
promotion of some compelling state interest.[31] In the criminal context, reasonableness requires showing of probable cause to
be personally determined by a judge. Given that the drug-testing policy for employeesand students for that matterunder RA
9165 is in the nature of administrative search needing what was referred to in Vernonia as swift and informal disciplinary
procedures, the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the
reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug
testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug
testing requirement. The employees privacy interest in an office is to a large extent circumscribed by the companys work
policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right
of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a
question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law
authorizing a search narrowly drawn or narrowly focused?[32]

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and
regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly
embarrass the employees or place them under a humiliating experience. While every officer and employee in a private
establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really
singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to
be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by
providing that the employees concerned shall be subjected to random drug test as contained in the companys work rules and
regulations x x x for purposes of reducing the risk in the work place.

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible
the employees privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing
methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the
results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-
controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an
accurate chain of custody.[33] In addition, the IRR issued by the DOH provides that access to the drug results shall be on the
need to know basis;[34] that the drug test result and the records shall be [kept] confidential subject to the usual accepted
practices to protect the confidentiality of the test results. [35] Notably, RA 9165 does not oblige the employer concerned to report
to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs
Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees privacy, under
RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively
minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-
being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this
through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a
mandatory random drug test.[36] To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough
to override the individuals privacy interest under the premises. The Court can consider that the illegal drug menace cuts across
gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of
illegal drugs, with their ready market, would be an investors dream were it not for the illegal and immoral components of any of
such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The
state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a
mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices,
the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a
reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the
compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide
authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context
of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and employees also labor under reasonable
supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high
standard of ethics in the public service.[37] And if RA 9165 passes the norm of reasonableness for private employees, the more
reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times
to the people and to serve them with utmost responsibility and efficiency.[38]

Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power
hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give
unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug
testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It
enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the
school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing
shall take into account the companys work rules. In either case, the random procedure shall be observed, meaning that the
persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against
misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the
Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies,
the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall
always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked
discretion to determine how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape. [39] In the face of the
increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many
problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of
subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],


[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug
testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and
suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they
seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the
case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing
proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutors office with criminal
offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are
randomness and suspicionless. In the case of persons charged with a crime before the prosecutors office, a mandatory drug
testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being
made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus
charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if
that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. [40] To impose mandatory
drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 9165. Drug testing in this case would violate a persons right to privacy guaranteed under Sec. 2, Art. III
of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos.
157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec.
36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and
(g) of RA 9165. No costs.

SO ORDERED.
EN BANC

BRICCIO Ricky A. POLLO, G.R. No. 181881


Petitioner,
Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
CHAIRPERSON KARINA CONSTANTINO-DAVID, PEREZ,
DIRECTOR IV RACQUEL DE GUZMAN MENDOZA,
BUENSALIDA, SERENO,
DIRECTOR IV LYDIA A. REYES, and
CASTILLO, DIRECTOR III PERLAS-BERNABE, JJ.
ENGELBERT ANTHONY D. UNITE AND THE CIVIL Promulgated:
SERVICE COMMISSION,
Respondents. October 18, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged administratively and
eventually dismissed from the service. The employees personal files stored in the computer were used by the government
employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
Decision[1] dated October 11, 2007 and Resolution[2] dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed
the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio Ricky A. Pollo to nullify the proceedings conducted
by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best
interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-
Charge of the Public Assistance and Liaison Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of the
CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina
Constantino-David which was marked Confidential and sent through a courier service (LBC) from a certain Alan San Pascual of
Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office.
Following office practice in which documents marked Confidential are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:


The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright
for an employee of your agency to be a lawyer of an accused govt employee having a pending case in the
csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of
the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in
the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being tainted.

Concerned Govt employee[3]

Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a
memo directing them to conduct an investigation and specifically to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions.[4] After some briefing, the team proceeded at once to the CSC-ROIV office
at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids
directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by
several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director
Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the
ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner
read:

Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the
Chairman. If you can make it here now it would be better.

All PCs Of PALD and LSD are being backed up per memo of the chair.

CO IT people arrived just now for this purpose. We were not also informed about this.

We cant do anything about it its a directive from chair.

Memo of the chair was referring to an anonymous complaint; ill send a copy of the memo via mms[5]

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a
lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main
office: Sir may mga taga C.O. daw sa kuarto natin. [6] At around 10:00 p.m. of the same day, the investigating team finished their
task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned
over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was
found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the
petitioner, numbering about 40 to 42 documents, were draft pleadings or letters [7] in connection with administrative cases in the
CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order [8] dated January 11,
2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days
from notice.
Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or
connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the
CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are
for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives
rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and
advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the
government tasked to discipline misfeasance and malfeasance in the government service. The number of
pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice
but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in this customary practice
without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the
collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably
raises the presumption that he was the one responsible or had a hand in their drafting or preparation since
the computer of origin was within his direct control and disposition.[9]

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no
attachments to it, because he is not a lawyer and neither is he lawyering for people with cases in the CSC. He accused CSC
officials of conducting a fishing expedition when they unlawfully copied and printed personal files in his computer, and
subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he
informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives, friends and
some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his
constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that
though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR)
is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the
anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint
under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the
files/documents copied from his computer without his consent is thus inadmissible as evidence, being fruits of a poisonous tree.
[10]

On February 26, 2007, the CSC issued Resolution No. 070382 [11] finding prima facie case against the petitioner and charging
him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713
(Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer
under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under
Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon
receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without
basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining
solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that those
files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or another, to
make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R.
Solosa who entrusted his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client
who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised
in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated
this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No.
070519[12] dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioners
answer.

On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the Rules of Court, docketed as CA-G.R. SP
No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as
having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however,
petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff,
Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint
for disbarment against Director Buensalida.[14]

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30,
2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction. [15] Since he
failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning
that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to
proceed with the formal investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing conference, claiming that
the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his
request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of
petitioner and/or his counsels non-appearance.[17] This prompted petitioner to file another motion in the CA, to cite the
respondents, including the hearing officer, in indirect contempt.[18]

On June 12, 2007, the CSC issued Resolution No. 071134 [19] denying petitioners motion to set aside the denial of his motion to
defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed
to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have
waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a.
Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the
Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE
with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits,
cancellation of civil service eligibilities and bar from taking future civil service examinations.[21]

On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the dearth of
jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an
employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct
committed by said employee and without the latters consent or participation. The CSC thus turned to relevant rulings of the
United States Supreme Court, and cited the leading case of OConnor v. Ortega[22] as authority for the view that government
agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the
governmental workplace without meeting the probable cause or warrant requirement for search and seizure. Another ruling
cited by the CSC is the more recent case of United States v. Mark L. Simons[23] which declared that the federal agencys
computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the
Court therein recognized that such policy did not, at the same time, erode the respondents legitimate expectation of privacy in
the office in which the computer was installed, still, the warrantless search of the employees office was upheld as valid because
a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct
provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of
privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming
that there was no such administrative policy, the CSC was of the view that the search of petitioners computer successfully
passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The
CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with
an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With
the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately
supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of
R.A. No. 6713 against the petitioner. These grave infractions justified petitioners dismissal from the service with all its
accessory penalties.

In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the
service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed
for the inclusion of Resolution No. 071800[25] which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of
discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the
anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof
yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioners computer and
later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy
declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in
anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSCs act of
proceeding with the formal investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS


IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH
AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2 nd PARAGRAPH OF SECTION 8 OF
CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC
RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT
INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL
AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN
IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE
EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE
DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE
CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL
WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE
DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS,
ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE
ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED
JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE
LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO. [26]

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his personal
files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,[27] which provides:

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.

The constitutional guarantee is not a prohibition of all searches and seizures but only of unreasonable searches and seizures.
[28]
But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we
examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti[29]:

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

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. (Sec. 1[3],
Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such,
the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate
Courts which are considered doctrinal in this jurisdiction.[30]

In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI agents in electronically recording a
conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a search and
seizure. Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal
telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it
was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person
has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to
recognize as reasonable (objective).[32]

In Mancusi v. DeForte[33] which addressed the reasonable expectations of private employees in the workplace, the US Supreme
Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared
with other union officials, even as the latter or their guests could enter the office. The Court thus recognized that employees
may have a reasonable expectation of privacy against intrusions by police.

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of OConnor v.
Ortega[34] where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual
harassment of female hospital employees and other irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and filing cabinets. In that case, the Court categorically
declared that [i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a
private employer.[35] A plurality of four Justices concurred that the correct analysis has two steps: first, because some
government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable, a court must
consider [t]he operational realities of the workplace in order to determine whether an employees Fourth Amendment rights are
implicated; and next, where an employee has a legitimate privacy expectation, an employers intrusion on that expectation for
noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the
standard of reasonableness under all the circumstances.[36]

On the matter of government employees reasonable expectations of privacy in their workplace, OConnor teaches:

x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employees expectation of privacy must be assessed in the
context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other
employees, and business and personal invitees. Instead, in many cases offices are continually entered by
fellow employees and other visitors during the workday for conferences, consultations, and other work-related
visits. Simply put, it is the nature of government offices that others such as fellow employees, supervisors,
consensual visitors, and the general public may have frequent access to an individuals office. We agree with
JUSTICE SCALIA that [c]onstitutional protection against unreasonable searches by the government does not
disappear merely because the government has the right to make reasonable intrusions in its capacity as
employer, x x x but some government offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable. x x x Given the great variety of work environments in the public
sector, the question of whether an employee has a reasonable expectation of privacy must be
addressed on a case-by-case basis.[37] (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas Fourth Amendment
rights are implicated only if the conduct of the hospital officials infringed an expectation of privacy that society is prepared to
consider as reasonable. Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with
any other employees, kept personal correspondence and other private items in his own office while those work-related files (on
physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established
any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desks or file
cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise exist),
the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.[38]

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the OConnor plurality
decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the searchwas not a reasonable search under the fourth
amendment. x x x [t]o hold that the Fourth Amendment applies to searches conducted by [public employers]
is only to begin the inquiry into the standards governing such searches[W]hat is reasonable depends on the
context within which a search takes place. x x x Thus, we must determine the appropriate standard of
reasonableness applicable to the search.A determination of the standard of reasonableness applicable to a
particular class of searches requires balanc[ing] the nature and quality of the intrusion on the individuals
Fourth Amendment interests against the importance of the governmental interests alleged to justify the
intrusion. x x x In the case of searches conducted by a public employer, we must balance the invasion
of the employees legitimate expectations of privacy against the governments need for supervision,
control, and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employees office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct
of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar with such procedures, is simply
unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices
such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-
related searches are merely incident to the primary business of the agency. Under these circumstances, the
imposition of a warrant requirement would conflict with the common-sense realization that government offices
could not function if every employment decision became a constitutional matter. x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and the work
of these agencies would suffer if employers were required to have probable cause before they entered an
employees desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give
the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the
purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has
little meaning for a routine inventory conducted by public employers for the purpose of securing state
property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related


employee misconduct. Even when employers conduct an investigation, they have an interest substantially
different from the normal need for law enforcement. x x x Public employers have an interest in ensuring that
their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers
from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its
employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the
consequences of their misconduct or incompetence to both the agency and the public interest can be
severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal
law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is
conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for
searches of the type at issue here would impose intolerable burdens on public employers. The delay
in correcting the employee misconduct caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable damage to the agencys work, and
ultimately to the public interest. x x x

xxxx

In sum, we conclude that the special needs, beyond the normal need for law enforcement
make theprobable-cause requirement impracticable, x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of
reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and
proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public
employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy
interests of government employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this reasonableness standard, both the inception
and the scope of the intrusion must be reasonable:

Determining the reasonableness of any search involves a twofold inquiry: first, one must
consider whether theaction was justified at its inception, x x x ; second, one must determine
whether the search as actually conducted was reasonably related in scope to the
circumstances which justified the interference in the first place, x x x

Ordinarily, a search of an employees office by a supervisor will be justified at its inception


when there are reasonable grounds for suspecting that the search will turn up evidence that the
employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory
work-related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope
when the measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the nature of the [misconduct]. x x x[39] (Citations omitted; emphasis
supplied.)
Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search
and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said
court for the determination of the justification for the search and seizure, and evaluation of the reasonableness of both the
inception of the search and its scope.

In OConnor the Court recognized that special needs authorize warrantless searches involving public employees for
work-related reasons. The Court thus laid down a balancing test under which government interests are weighed against the
employees reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant
requirement, which are related to law enforcement.[40]

OConnor was applied in subsequent cases raising issues on employees privacy rights in the workplace. One of these
cases involved a government employers search of an office computer, United States v. Mark L. Simons [41] where the defendant
Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing
materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a
computer with Internet access.The agency had instituted a policy on computer use stating that employees were to use the
Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also
stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as
deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer network, upon initial
discovery of prohibited internet activity originating from Simons computer, to conduct a remote monitoring and examination of
Simons computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files
on the hard drive of Simons computer were copied from a remote work station. Days later, the contractors representative finally
entered Simons office, removed the original hard drive on Simons computer, replaced it with a copy, and gave the original to the
agency security officer. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was
not around. The search team copied the contents of Simons computer; computer diskettes found in Simons desk drawer;
computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal
correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer
violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as
charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and office did
not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under
the OConnor exception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise
proper administrative inspection. Simons violation of the agencys Internet policy happened also to be a violation of criminal law;
this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons office
was reasonable under the Fourth Amendment standard announced in OConnor because at the inception of the search, the
employer had reasonable grounds for suspecting that the hard drive would yield evidence of misconduct, as the employer was
already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of
the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while
Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard
to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that
he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to
prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one
that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in
the files downloaded from the Internet. Additionally, we conclude that Simons Fourth Amendment rights were
not violated by FBIS retrieval of Simons hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of
his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would audit,
inspect, and/or monitor employees use of the Internet, including all file transfers, all websites visited,
and all e-mail messages, as deemed appropriate. x x x This policy placed employees on notice that they
could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether
Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not
objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly,
FBIS actions in remotely searching and seizing the computer files Simons downloaded from the Internet did
not violate the Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his
office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the
operational realities of Simons workplace may have diminished his legitimate privacy expectations. However,
there is no evidence in the record of any workplace practices, procedures, or regulations that had such an
effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy
in his office.

xxxx

In the final analysis, this case involves an employees supervisor entering the employees
government office and retrieving a piece of government equipment in which the employee had absolutely no
expectation of privacy equipment that the employer knew contained evidence of crimes committed by the
employee in the employees office. This situation may be contrasted with one in which the criminal acts of a
government employee were unrelated to his employment. Here, there was a conjunction of the conduct that
violated the employers policy and the conduct that violated the criminal law. We consider that FBIS intrusion
into Simons office to retrieve the hard drive is one in which a reasonable employer might engage. x x
x[42] (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which involved the constitutionality of a provision in
R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools,
officers and employees of public and private offices, and persons charged before the prosecutors office with certain offenses,
have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,
intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy
expectation of the employees and the reasonableness of drug testing requirement. The employees privacy
interest in an office is to a large extent circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent
right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in
a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been
upheld. (Emphasis supplied.)

Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the following
questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer reasonable in its inception
and scope?

In this inquiry, the relevant surrounding circumstances to consider include (1) the employees relationship to the item seized; (2)
whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions
to maintain his privacy in the item. These factors are relevant to both the subjective and objective prongs of the reasonableness
inquiry, and we consider the two questions together.[44] Thus, where the employee used a password on his computer, did not
share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that
space and items located therein must comply with the Fourth Amendment.[45]
We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy
either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other
employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from
accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he
normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his
computer which to him seemed a trivial request. He described his office as full of people, his friends, unknown people and that
in the past 22 years he had been discharging his functions at the PALD, he is personally assisting incoming clients, receiving
documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector
Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the
office as a paying customer.[46] Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that
society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that
petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of
policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be used only for
legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of their
respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of
privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle
the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or
receive on the computer through the Internet or any other computer network. Usersunderstand that
the CSC may use human or automated means to monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the
exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or
operated by other users. However, he is accountable therefor and must insure its care and
maintenance.

xxxx

Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to
the computer system. Individual passwords shall not be printed, stored online, or given to
others. Users shall be responsible for all transactions made using their passwords. No User may
access the computer system with another Users password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode
particular files or messages does not imply that Users have an expectation of privacy in the material
they create or receive on the computer system. The Civil Service Commission has global passwords
that permit access to all materials stored on its networked computer system regardless of whether
those materials have been encoded with a particular Users password. Only members of the
Commission shall authorize the application of the said global passwords.

x x x x[47] (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy
in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer
resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure that the
computer resources were used only for such legitimate business purposes.

One of the factors stated in OConnor which are relevant in determining whether an employees expectation of privacy in the
workplace is reasonable is the existence of a workplace privacy policy. [48] In one case, the US Court of Appeals Eighth Circuit
held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files
where the universitys computer policy, the computer user is informed not to expect privacy if the university has a legitimate
reason to conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the
university is responding to a discovery request in the course of litigation.Petitioner employee thus cannot claim a violation of
Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.[49]

As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we answer in the
affirmative.

The search of petitioners computer files was conducted in connection with investigation of work-related misconduct prompted
by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of
the Mamamayan Muna Hindi Mamaya Na division is supposedly lawyering for individuals with pending cases in the
CSC. Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown
sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV)
such as, staff working in another government agency, selling cases and aiding parties with pending
cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions
involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on
the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in
the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x[50]

A search by a government employer of an employees office is justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is guilty of work-related misconduct. [51] Thus, in the 2004 case decided
by the US Court of Appeals Eighth Circuit, it was held that where a government agencys computer use policy
prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any
personal privacy rights regarding their use of the agency information systems and technology, the government employee had
no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during
warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employees
computer hard drive was first remotely examined by a computer information technician after his supervisor received complaints
that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout the office. When the
supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express
policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation
ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of
petitioners computer, as well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public
employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in
scope to the circumstances that justified it in the first place.[52]

Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and scope. We quote with
approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines established
by OConnor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollos computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American
authorities. It bears emphasis that the Commission pursued the search in its capacity as a government
employer and that it was undertaken in connection with an investigation involving a work-related
misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the
search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was lawyering
for parties having pending cases with the said regional office or in the Commission. The nature of the
imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be
furtively engaged in the practice of lawyering for parties with pending cases before the Commission would be
a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the
process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial
but must be seen to be so, otherwise the general public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to
arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was
received, a search was forthwith conducted involving the computer resources in the concerned regional
office. That it was the computers that were subjected to the search was justified since these furnished
the easiest means for an employee to encode and store documents. Indeed, the computers would be
a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of
computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and
immediate action. Pointedly, to impose the need to comply with the probable cause requirement would
invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open
and transparent manner. Officials and some employees of the regional office, who happened to be in the
vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly
notified, through text messaging, of the search and the concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency
by going after the work-related misfeasance of its employees.Consequently, the evidence derived from the
questioned search are deemed admissible.[53]
Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the
privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable
considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace
under the aforecited authorities. We likewise find no merit in his contention that OConnor and Simons are not relevant because
the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioners
computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating
evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the
anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches
defined in OConnor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court,
Metropolitan Trial Court of Manila [54] involving a branch clerk (Atty. Morales) who was investigated on the basis of an
anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office
supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access
Atty. Morales personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one
filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales computer was seized and
taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files
stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge
against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement
affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA
recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales
may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained
from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures. The
Court found no evidence to support the claim of OCA that they were able to obtain the subject pleadings with the consent of
Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot
investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable
search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal
computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved
a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a
government-issued computer, hence government property the use of which the CSC has absolute right to regulate and
monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances
under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy,
failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible in the
administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of
the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect
but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant
evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds
might conceivably opine otherwise.[55]

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents
stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those
on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also
substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the
explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his
lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they
handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual finding regarding the authorship of
the subject pleadings and misuse of the office computer is well-supported by the evidence on record, thus:
It is also striking to note that some of these documents were in the nature of pleadings responding to
the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for
certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly
and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic
to the Commission. Worse, the appearance in one of the retrieved documents the phrase, Eric N.
Estr[e]llado, Epal kulang ang bayad mo,lends plausibility to an inference that the preparation or drafting of the
legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these
documents was simply doing the same for the money a legal mercenary selling or purveying his expertise to
the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said
computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written
copy of one of the pleadings found in the case records lying on the table of the respondent. This was the
Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances
indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own
employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally
served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself
executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted
by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty.
Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in
close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the
computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to
confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and
credence. The same is true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose,
not only once but several times gauging by the number of pleadings, for ends not in conformity with the
interests of the Commission. He was, in effect, acting as a principal by indispensable cooperationOr at the
very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is,
the computer and the electricity, to be utilized for purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, Eric N. Estrellado, Epal kulang ang bayad mo, was a private joke
between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of
anything more sinister. The same is too preposterous to be believed.Why would such a statement appear in a
legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?[56]

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since
Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course
unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the
proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation
therein or supported by documentary or direct evidence, in which case the person complained of may be
required to comment.

xxxx
We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC
itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two
divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own fact-finding investigation and
information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court
held in Civil Service Commission v. Court of Appeals[57] --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II
of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil
service officer or employee by the appropriate disciplining authority, even without being subscribed
and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint,
jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged
infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial
body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her
Reply to the Addendum to Commissioner Buenaflors previous memo expressing his dissent to the actions and disposition of the
Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed,
provision by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr.
and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further
because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order. [58] Moreover,
being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the
public, the CUP need not be published prior to its effectivity.[59]

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that petitioner is guilty of
grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity
of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties,
pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and
Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.
SECOND DIVISION
JESSE U. LUCAS, G.R. No. 190710
Petitioner,
Present:

CARPIO, J.,
Chairperson,
- versus - NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

Promulgated:
JESUS S. LUCAS,
Respondent. June 6, 2011

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

DECISION

NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on certiorari, we
address this question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailed in this petition
are the Court of Appeals (CA) Decision[1] dated September 25, 2009 and Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of
Parties to DNA Testing)[2] before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime
in 1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a certain Ate Belen (Belen) who worked in
a prominent nightspot in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with
respondent, Jesus S. Lucas, at Belens workplace, and an intimate relationship developed between the two. Elsie eventually got
pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of petitioners father was not stated in
petitioners certificate of live birth. However, Elsie later on told petitioner that his father is respondent. On August 1, 1969,
petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie
and petitioner for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to accept
respondents offer of support and decided to raise petitioner on her own. While petitioner was growing up, Elsie made several
attempts to introduce petitioner to respondent, but all attempts were in vain.

Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate; (c)
petitioners college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology;
(d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from the University of the Philippines,
College of Music; and (f) clippings of several articles from different newspapers about petitioner, as a musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish filiation. His
counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC, finding
the petition to be sufficient in form and substance, issued the Order [3] setting the case for hearing and urging anyone who has
any objection to the petition to file his opposition. The court also directed that the Order be published once a week for three
consecutive weeks in any newspaper of general circulation in the Philippines, and that the Solicitor General be furnished with
copies of the Order and the petition in order that he may appear and represent the State in the case.
On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearance and
Comment. He manifested inter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petition was
adversarial in nature and therefore summons should be served on him as respondent; (3) should the court agree that summons
was required, he was waiving service of summons and making a voluntary appearance; and (4) notice by publication of the
petition and the hearing was improper because of the confidentiality of the subject matter.[4]

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to Try and
Hear the Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he should be served with
summons.
After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration. [5] Respondent averred that the
petition was not in due form and substance because petitioner could not have personally known the matters that were alleged
therein. He argued that DNA testing cannot be had on the basis of a mere allegation pointing to respondent as petitioners
father. Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.
On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order [6] dismissing the case. The court
remarked that, based on the case of Herrera v. Alba,[7] there are four significant procedural aspects of a traditional paternity
action which the parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and the child. The court opined that petitioner must first establish these four
procedural aspects before he can present evidence of paternity and filiation, which may include incriminating acts or scientific
evidence like blood group test and DNA test results. The court observed that the petition did not show that these procedural
aspects were present. Petitioner failed to establish a prima facie case considering that (a) his mother did not personally declare
that she had sexual relations with respondent, and petitioners statement as to what his mother told him about his father was
clearly hearsay; (b) the certificate of live birth was not signed by respondent; and (c) although petitioner used the surname of
respondent, there was no allegation that he was treated as the child of respondent by the latter or his family. The court opined
that, having failed to establish a prima facie case, respondent had no obligation to present any affirmative defenses. The
dispositive portion of the said Order therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects
of a traditional paternity action in his petition, his motion for the submission of parties to DNA testing to
establish paternity and filiation is hereby DENIED. This case is DISMISSED without prejudice.
SO ORDERED.[8]

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in his favor.
Thus, on October 20, 2008, it issued the Order[9]setting aside the courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and
set aside.

Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing
on January 22, 2009 at 8:30 in the morning.

xxxx

SO ORDERED.[10]

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature considering
that a full-blown trial has not yet taken place. The court stressed that the petition was sufficient in form and substance. It was
verified, it included a certification against forum shopping, and it contained a plain, concise, and direct statement of the ultimate
facts on which petitioner relies on for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked
that the allegation that the statements in the petition were not of petitioners personal knowledge is a matter of evidence. The
court also dismissed respondents arguments that there is no basis for the taking of DNA test, and that jurisprudence is still
unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA Evidence[11] allows the conduct of DNA
testing, whether at the courts instance or upon application of any person who has legal interest in the matter in litigation.

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition,
[12]
reiterating that (a) the petition was not in due form and substance as no defendant was named in the title, and all the basic
allegations were hearsay; and (b) there was no prima facie case, which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing.[13]
Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and
January 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The
assailed Orders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court,
Branch 172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE.
Accordingly, the case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED.[14]

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been served
on him. Respondents special appearance could not be considered as voluntary appearance because it was filed only for the
purpose of questioning the jurisdiction of the court over respondent. Although respondent likewise questioned the courts
jurisdiction over the subject matter of the petition, the same is not equivalent to a waiver of his right to object to the jurisdiction
of the court over his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing
order to abbreviate the proceedings. It noted that petitioner failed to show that the four significant procedural aspects of a
traditional paternity action had been met. The CA further held that a DNA testing should not be allowed when the petitioner has
failed to establish a prima facie case, thus:

While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been
intended to trample on the substantive rights of the parties. It could have not meant to be an instrument to promote
disorder, harassment, or extortion. It could have not been intended to legalize unwarranted expedition to fish for
evidence. Such will be the situation in this particular case if a court may at any time order the taking of a DNA test. If
the DNA test in compulsory recognition cases is immediately available to the petitioner/complainant without requiring
first the presentation of corroborative proof, then a dire and absurd rule would result. Such will encourage and promote
harassment and extortion.

xxxx

At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNA
testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If at
anytime, motu proprio and without pre-conditions, the court can indeed order the taking of DNA test in compulsory
recognition cases, then the prominent and well-to-do members of our society will be easy prey for opportunists and
extortionists. For no cause at all, or even for [sic] casual sexual indiscretions in their younger years could be used as a
means to harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-
just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional
taking of DNA test for compulsory recognition case opens wide the opportunities for extortionist to prey on victims who
have no stomach for scandal.[15]

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit.[16]
In this petition for review on certiorari, petitioner raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF
JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER
RAISED IN THE PETITION FOR CERTIORARI.

I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT
JURISDICTION WAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.

I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE
THAT THE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE
JURISDICTION OF THE COURT A QUO.
I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY
RULED THAT THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS
CONTROLLING.

II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE
PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO)
FOR THE CONDUCT OF DNA TESTING.

II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY
RULED THAT DNA TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER
ESTABLISHES PRIMA FACIE PROOF OF FILIATION.

III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE
CASE OF HERRERA VS. ALBA,

ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL


PATERNITY ACTION.[17]

Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction over his
person. Hence, the CA had no legal basis to discuss the same, because issues not raised are deemed waived or abandoned.
At any rate, respondent had already voluntarily submitted to the jurisdiction of the trial court by his filing of several motions
asking for affirmative relief, such as the (a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex
Parte Motion to Resolve Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration
of the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly
admitted that he has waived his right to summons in his Manifestation and Comment on Petitioners Very Urgent Motion to Try
and Hear the Case. Hence, the issue is already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondents name,
the body of the petition clearly indicates his name and his known address. He maintains that the body of the petition is
controlling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since it is not a
legal ground for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it should have simply
denied the motion.[18] Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that there must be a
prior proof of filiation before DNA testing can be ordered. He adds that the CA erroneously relied on the four significant
procedural aspects of a paternity case, as enunciated in Herrera v. Alba.[19] Petitioner avers that these procedural aspects are
not applicable at this point of the proceedings because they are matters of evidence that should be taken up during the trial.[20]

In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merely reiterates his
previous arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to petitioners assertion, he
raised the issue before the CA in relation to his claim that the petition was not in due form and substance. Respondent denies
that he waived his right to the service of summons. He insists that the alleged waiver and voluntary appearance was conditional
upon a finding by the court that summons is indeed required. He avers that the assertion of affirmative defenses, aside from
lack of jurisdiction over the person of the defendant, cannot be considered as waiver of the defense of lack of jurisdiction over
such person.

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to dismiss
the petition for illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which neither terminates nor
finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As
such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, which
is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be
the subject of an appeal unless and until a final judgment or order is rendered. In a number of cases, the court has granted the
extraordinary remedy of certiorari on the denial of the motion to dismiss but only when it has been tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction.[21] In the present case, we discern no grave abuse of discretion on the part
of the trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his person due to the
absence of summons, and (b) defect in the form and substance of the petition to establish illegitimate filiation, which is
equivalent to failure to state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired
jurisdiction over the person of respondent, or whether respondent waived his right to the service of summons. We find that the
primordial issue here is actually whether it was necessary, in the first place, to serve summons on respondent for the court to
acquire jurisdiction over the case. In other words, was the service of summons jurisdictional? The answer to this question
depends on the nature of petitioners action, that is, whether it is an action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the
thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that
person's interest in a property to a corresponding lien or obligation. A petition directed against the "thing" itself or the res, which
concerns the status of a person, like a petition for adoption, annulment of marriage, or correction of entries in the birth
certificate, is an action in rem.[22]

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and
decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to
confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over the resis acquired either
(a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of
the institution of legal proceedings, in which the power of the court is recognized and made effective. [23]

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish
illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latter thereby
acquired jurisdiction over the case. An in rem proceeding is validated essentially through publication. Publication is notice to the
whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort to
the right sought to be established.[24] Through publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with
jurisdiction, but merely for satisfying the due process requirements.[25] This is but proper in order to afford the person concerned
the opportunity to protect his interest if he so chooses. [26] Hence, failure to serve summons will not deprive the court of its
jurisdiction to try and decide the case. In such a case, the lack of summons may be excused where it is determined that the
adverse party had, in fact, the opportunity to file his opposition, as in this case. We find that the due process requirement with
respect to respondent has been satisfied, considering that he has participated in the proceedings in this case and he has the
opportunity to file his opposition to the petition to establish filiation.

To address respondents contention that the petition should have been adversarial in form, we further hold that the
herein petition to establish filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the
name of a defendant, the failure to implead respondent as defendant, and the non-service of summons upon respondent. A
proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an
opportunity to contest it.[27] In this petitionclassified as an action in remthe notice requirement for an adversarial proceeding was
likewise satisfied by the publication of the petition and the giving of notice to the Solicitor General, as directed by the trial court.

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which
requires the complaint to contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his
claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action inadequate. [28] A
complaint states a cause of action when it contains the following elements: (1) the legal right of plaintiff, (2) the correlative
obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right.[29]
The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent.
Respondent, however, contends that the allegations in the petition were hearsay as they were not of petitioners personal
knowledge. Such matter is clearly a matter of evidence that cannot be determined at this point but only during the trial when
petitioner presents his evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the
sufficiency of the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are
true, for said motion must hypothetically admit the truth of the facts alleged in the complaint. [30]
The inquiry is confined to the four corners of the complaint, and no other. [31] The test of the sufficiency of the facts alleged in the
complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance
with the prayer of the complaint.[32]

If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it is
incumbent upon the court to deny the motion to dismiss and require the defendant to answer and go to trial to prove his
defense. The veracity of the assertions of the parties can be ascertained at the trial of the case on the merits.[33]

The statement in Herrera v. Alba[34] that there are four significant procedural aspects in a traditional paternity case
which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-called
procedural aspects during trial, when the parties have presented their respective evidence. They are matters of evidence that
cannot be determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CAs
observation that petitioner failed to establish a prima facie casethe first procedural aspect in a paternity caseis therefore
misplaced. A prima facie case is built by a partys evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNA
testing since no evidence has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, under
the circumstances, a DNA testing order is warranted considering that no such order has yet been issued by the trial court. In
fact, the latter has just set the said case for hearing.

At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well taken
and deserves the Courts attention. In light of this observation, we find that there is a need to supplement the Rule on DNA
Evidence to aid the courts in resolving motions for DNA testing order, particularly in paternity and other filiation cases. We, thus,
address the question of whether a prima facie showing is necessary before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence
in the judicial system. It provides the prescribed parameters on the requisite elements for reliability and validity (i.e., the proper
procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the
admission of DNA test results as evidence as well as the probative value of DNA evidence. It seeks to ensure that the evidence
gathered, using various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused
and, more importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the public.
[35]

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard
the accuracy and integrity of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on
application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order
shall issue after due hearing and notice to the parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested;
or (ii) was previously subjected to DNA testing, but the results may require confirmation for good
reasons;

(c) The DNA testing uses a scientifically valid technique;


(d) The DNA testing has the scientific potential to produce new information that is relevant to the
proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting the
accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any
party, including law enforcement agencies, before a suit or proceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the
said conditions are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the
applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good
cause for the holding of the test. [36] In these states, a court order for blood testing is considered a search, which, under their
Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of
a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The
Supreme Court of Louisiana eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches
and seizures is still applicable, and a proper showing of sufficient justification under the particular factual
circumstances of the case must be made before a court may order a compulsory blood test. Courts in various
jurisdictions have differed regarding the kind of procedures which are required, but those jurisdictions have
almost universally found that a preliminary showing must be made before a court can constitutionally order
compulsory blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the court
may issue an order for compulsory blood testing, the moving party must show that there is a reasonable
possibility of paternity. As explained hereafter, in cases in which paternity is contested and a party to the
action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the court can
determine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a
court order for blood testing.[37]

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment
suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a
reasonable possibility of paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the
court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already
preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its
discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September 25,
2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders dated October 20, 2008 and
January 19, 2009 of the Regional Trial Court of Valenzuela City are AFFIRMED.

SO ORDERED.