EN BANC have gained ingress into these walls, hence, fences not necessarily
providing security, but becomes itself a "security problem";
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
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.
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.
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.
23
The City made subsequent demands 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 relief 25 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.233chanRoblesvirtualLawlibraryV.
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.
(EN BANC) JENNY M. AGABON and G.R. No. 158693
VIRGILIO C. AGABON,
Petitioners, Present:
- versus - .
NATIONAL LABOR RELATIONS
COMMISSION (NLRC), RIVIERA
HOME IMPROVEMENTS, INC. Promulgated:
and VICENTE ANGELES,
Respondents. November 17, 2004
x ---------------------------------------------------------------------------------------- x
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 probandithereby 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 13th 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.
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC. V.
ANTI-TERRORISM COUNCIL (2010) EN BANC
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic
Act No. 9372 (RA 9372), An Act to Secure the State and Protect our People
from Terrorism, otherwise known as the Human Security Act of
2007,[1] signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization,
and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed
a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No.
178552. On even date, petitioners Kilusang Mayo Uno (KMU), National
Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center
for Trade Union and Human Rights (CTUHR), represented by their
respective officers[3] who are also bringing the action in their capacity as
citizens, filed a petition for certiorari and prohibition docketed as G.R. No.
178554.
The following day, July 17, 2007, organizations Bagong Alyansang
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil
Liberties (MCCCL), Confederation for Unity, Recognition and Advancement
of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap
(KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino
Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT),
Migrante, Health Alliance for Democracy (HEAD), and Agham, represented
by their respective officers,[4] and joined by concerned citizens and taxpayers
Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr.,
Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina
Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina
Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus,
Rita Baua and Rey Claro Casambre filed a petition for certiorari and
prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations
Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Justice and Peace (EMJP), and Promotion of Church Peoples Response
(PCPR), which were represented by their respective officers[5] who are also
bringing action on their own behalf, filed a petition for certiorari and
prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels
for the Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S.
Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for
certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other
regional chapters and organizations mostly based in the Southern Tagalog
Region,[7] and individuals[8] followed suit by filing on September 19, 2007 a
petition for certiorari and prohibition docketed as G.R. No. 179461 that
replicates the allegations raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism
Council[9] composed of, at the time of the filing of the petitions, Executive
Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales
as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting
Defense Secretary and National Security Adviser Norberto Gonzales, Interior
and Local Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the IBP, also
impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen.
Hermogenes Esperon and Philippine National Police (PNP) Chief Gen.
Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded
President Gloria Macapagal-Arroyo and the support agencies for the Anti-
Terrorism Council like the National Intelligence Coordinating Agency,
National Bureau of Investigation, Bureau of Immigration, Office of Civil
Defense, Intelligence Service of the AFP, Anti-Money Laundering Center,
Philippine Center on Transnational Crime, and the PNP intelligence and
investigative elements.
The petitions fail.
Petitioners resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is
clear:
Section 1. Petition for certiorari.When any
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts
with certainty and praying that judgment be
rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such
incidental reliefs as law and justice may
require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of
particularity how respondents acted without or in excess of their respective
jurisdictions, or with grave abuse of discretion amounting to lack or excess of
jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the
same.
In constitutional litigations, the power of judicial review is limited by four
exacting requisites, viz: (a) there must be an actual case or controversy; (b)
petitioners must possess locus standi; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.[10]
In the present case, the dismal absence of the first two requisites, which are
the most essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.[11]
Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized
the rule on locus standi, thus:
Locus standi or legal standing has been defined as a
personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged.
The gist of the question on standing is whether a party
alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which
the court depends for illumination of difficult
constitutional questions.
[A] party who assails the constitutionality of a statute
must have a direct and personal interest. It must show
not only that the law or any governmental act is invalid,
but also that it sustained or is in immediate danger of
sustaining some direct injury as a result of its
enforcement, and not merely that it suffers thereby in
some indefinite way. It must show that it has been or is
about to be denied some right or privilege to which it is
lawfully entitled or that it is about to be subjected to
some burdens or penalties by reason of the statute or
act complained of.
For a concerned party to be allowed to raise a
constitutional question, it must show that (1) it
has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the
government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be
redressed by a favorable action. (emphasis and
underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected
communist fronts by the government, especially the military; whereas
individual petitioners invariably invoke the transcendental importance
doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG[13] holds that transcendental public importance
dispenses with the requirement that petitioner has experienced or is in actual
danger of suffering direct and personal injury, cases involving the
constitutionality of penal legislation belong to an altogether different genus of
constitutional litigation. Compelling State and societal interests in the
proscription of harmful conduct, as will later be elucidated, necessitate a
closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA,
EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been
subjected to close security surveillance by state security forces, their
members followed by suspicious persons and vehicles with dark
windshields, and their offices monitored by men with military build. They
likewise claim that they have been branded as enemies of the [S]tate. [14]
Even conceding such gratuitous allegations, the Office of the Solicitor
General (OSG) correctly points out that petitioners have yet to show
any connection between the
purported surveillance and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham,
petitioner-organizations in G.R. No. 178581, would like the Court to
take judicial notice of respondents alleged action of tagging them as militant
organizations fronting for the Communist Party of the Philippines (CPP) and
its armed wing, the National Peoples Army (NPA). The tagging, according to
petitioners, is tantamount to the effects of proscription without following the
procedure under the law.[15] The petition of BAYAN-ST, et al. in G.R. No.
179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged tagging of petitioners.
Generally speaking, matters of judicial notice have three
material requisites: (1) the matter must be one of
common and general knowledge; (2) it must be well
and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the
limits of the jurisdiction of the court. The principal guide
in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be said
that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally
known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready
determination by resorting to sources whose accuracy
cannot reasonably be questionable.
Things of common knowledge, of which courts take
judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of
life, or they may be matters which are generally
accepted by mankind as true and are capable of ready
and unquestioned demonstration. Thus, facts which are
universally known, and which may be found in
encyclopedias, dictionaries or other publications, are
judicially noticed, provided, they are of such universal
notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of
every person. As the common knowledge of man ranges
far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common
knowledge. But a court cannot take judicial notice of
any fact which, in part, is dependent on the
existence or non-existence of a fact of which the
court has no constructive knowledge.[16] (emphasis
and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial
notice. Petitioners apprehension is insufficient to substantiate their
plea. That no specific charge or proscription under RA 9372 has been filed
against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No.
178554, who merely harp as well on their supposed link to the CPP and
NPA. They fail to particularize how the implementation of specific provisions
of RA 9372 would result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist
organization, the United States of America[17] (US) and the European
Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement of
Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales
that the Arroyo Administration would adopt the US and EU classification of
the CPP and NPA as terrorist organizations.[19] Such statement
notwithstanding, there is yet to be filed before the courts an application
to declare the CPP and NPA organizations as domestic terrorist or
outlawed organizations under RA 9372. Again, RA 9372 has been in
effect for three years now. From July 2007 up to the present, petitioner-
organizations have conducted their activities fully and freely without any
threat of, much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-
list Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and
Luzviminda Ilagan,[20] urged the government to resume peace negotiations
with the NDF by removing the impediments thereto, one of which is the
adoption of designation of the CPP and NPA by the US and EU as foreign
terrorist organizations. Considering the policy statement of the Aquino
Administration[21] of resuming peace talks with the NDF, the government is
not imminently disposed to ask for the judicial proscription of the CPP-NPA
consortium and its allied organizations.
More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.[22] Of recent development is
the filing of the first case for proscription under Section 17[23] of RA 9372 by
the Department of Justice before the Basilan Regional Trial Court against
the Abu Sayyaf Group.[24] Petitioner-organizations do not in the least allege
any link to the Abu SayyafGroup.
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.
COMELEC[33] cannot be more emphatic:
[C]ourts do not sit to adjudicate mere
academic questions to satisfy scholarly interest,
however intellectually challenging. The
controversy must be justiciabledefinite and concrete,
touching on the legal relations of parties having
adverse legal interests. In other words, the
pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a
denial thereof on the other hand; that is, it must
concern a real and not merely a theoretical
question or issue. There ought to be an actual
and substantial controversy admitting of specific
relief through a decree conclusive in nature, as
distinguished from an opinion advising what the
law would be upon a hypothetical state of
facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting
the Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent events.[34] Similarly,
apetition that fails to allege that an application for a license to operate a radio
or television station has been denied or granted by the authorities does not
present a justiciable controversy, and merely wheedles the Court to rule on a
hypothetical problem.[35]
The Court dismissed the petition in Philippine Press Institute v. Commission
on Elections[36] for failure to cite any specific affirmative action of the
Commission on Elections to implement the assailed resolution. It refused,
in Abbas v. Commission on Elections,[37] to rule on the religious freedom
claim of the therein petitioners based merely on a perceived potential conflict
between the provisions of the Muslim Code and those of the national law,
there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory
grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of
a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This,
however, is qualified by the requirement that there must be sufficient
facts to enable the Court to intelligently adjudicate the issues.[38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,[39] allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since plaintiffs faced a credible threat of
prosecution and should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.[40] The plaintiffs therein filed
an action before a federal court to assail the constitutionality of the material
support statute, 18 U.S.C. 2339B (a) (1),[41] proscribing the provision of
material support to organizations declared by the Secretary of State as
foreign terrorist organizations.They claimed that they intended to provide
support for the humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when
an anticipatory petition clearly shows that the challenged prohibition
forbids the conduct or activity that a petitioner seeks to do, as there
would then be a justiciable controversy.[42]
Unlike the plaintiffs in Holder, however, herein petitioners have failed to
show that the challenged provisions of RA 9372 forbid constitutionally
protected conduct or activity that they seek to do. No demonstrable threat
has been established, much less a real and existing one.
Petitioners obscure allegations of sporadic surveillance and
supposedly being tagged as communist fronts in no way approximate
a credible threat of prosecution. From these allegations, the Court is being
lured to render an advisory opinion, which is not its function.[43]
Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then
again, declaratory actions characterized by double contingency, where both
the activity the petitioners intend to undertake and the anticipated reaction to
it of a public official are merely theorized, lie beyond judicial review for lack
of ripeness.[44]
The possibility of abuse in the implementation of RA 9372 does not avail to
take the present petitions out of the realm of the surreal and merely
imagined. Such possibility is not peculiar to RA 9372 since the exercise of
any power granted by law may be abused.[45] Allegations of abuse must be
anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and
enforceable.
A facial invalidation of a statute is allowed only in free
speech cases, wherein certain rules of constitutional
litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism [46] under RA 9372 in that terms
like widespread and extraordinary fear and panic among the
populace and coerce the government to give in to an unlawful demand are
nebulous, leaving law enforcement agencies with no standard to measure
the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-
vagueness and overbreadth find no application in the present case since
these doctrines apply only to free speech cases; and that RA 9372 regulates
conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is
imperative to outline the schools of thought on whether the void-for-
vagueness and overbreadth doctrines are equally applicable grounds to
assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of
limiting the application of the two doctrines to free speech cases. They
particularly cite Romualdez v. Hon. Sandiganbayan[47] and Estrada v.
Sandiganbayan.[48]
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word intervene in
Section 5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically
vague and impermissibly broad. The Court stated that the overbreadth and
the vagueness doctrines have special application only to free-speech cases,
and are not appropriate for testing the validity of penal statutes. [50] It added
that, at any rate, the challenged provision, under which the therein petitioner
was charged, is not vague.[51]
While in the subsequent case of Romualdez v. Commission on
Elections,[52] the Court stated that a facial invalidation of criminal statutes is
not appropriate, it nonetheless proceeded to conduct a vagueness analysis,
and concluded that the therein subject election offense[53] under the Voters
Registration Act of 1996, with which the therein petitioners were charged, is
couched in precise language.[54]
The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice
Vicente V. Mendoza in the Estrada case, where the Court found the Anti-
Plunder Law (Republic Act No. 7080) clear and free from ambiguity
respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two
doctrines to the concept of a facial invalidation as opposed to an as-applied
challenge. He basically postulated that allegations that a penal statute is
vague and overbroad do not justify a facial review of its validity. The
pertinent portion of the Concurring Opinion of Justice Mendoza, which was
quoted at length in the main Estrada decision, reads:
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 facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not only on
the basis of its actual operation to the parties, but also on the assumption or
prediction that its very existence may cause others not before the court to
refrain from constitutionally protected speech or activities. [60]
Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion
that the vagueness and overbreadth doctrines, as grounds for a facial
challenge, are not applicable to penal laws. A litigant cannot thus
successfully mount a facial challenge against a criminal statute on
either vagueness or overbreadth grounds.
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,[68] and that claims of facial overbreadth have been entertained
in cases involving statutes which, by their terms, seek to regulate
only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever,
will an overbreadth challenge succeed against a law or regulation that is not
specifically addressed to speech or speech-related conduct. Attacks on
overly broad statutes are justified by the transcendent value to all society of
constitutionally protected expression.[71]
Since a penal statute may only be assailed for being vague as applied to
petitioners, a limited vagueness analysis of the definition of terrorism in RA
9372 is legally impermissible absent an actual or imminent charge against
them
While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the
therein petitioner, finding, however, that there was no basis to review the law
on its face and in its entirety.[72] It stressed that statutes found vague as a
matter of due process typically are invalidated only 'as applied' to a particular
defendant.[73]
American jurisprudence[74] instructs that vagueness challenges that do not
involve the First Amendment must be examined in light of the specific
facts of the case at hand and not with regard to the statute's facial validity.
For more than 125 years, the US Supreme Court has evaluated defendants
claims that criminal statutes are unconstitutionally vague, developing a
doctrine hailed as among the most important guarantees of liberty under
law.[75]
In this jurisdiction, the void-for-vagueness doctrine asserted under the due
process clause has been utilized in examining the constitutionality of criminal
statutes. In at least three cases,[76] the Court brought the doctrine into play in
analyzing an ordinance penalizing the non-payment of municipal tax on
fishponds, the crime of illegal recruitment punishable under Article 132(b) of
the Labor Code, and the vagrancy provision under Article 202 (2) of the
Revised Penal Code. Notably, the petitioners in these three cases, similar to
those in the two Romualdez and Estrada cases, were actually charged with
the therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to
permit a facial analysis of its validity
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 terrorism[77] 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.case[78] illustrated that the fact that the
prohibition on discrimination in hiring on the basis of race will require an
employer to take down a sign reading White Applicants Only hardly means
that the law should be analyzed as one regulating speech rather than
conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not
speech. This holds true a fortiori in the present case where the expression
figures only as an inevitable incident of making the element of coercion
perceptible.
[I]t is true that the agreements and course of conduct here
were as in most instances brought about through speaking
or writing. But it has never been deemed an abridgement
of freedom of speech or press to make a course of
conduct illegal merely because the conduct was, in part,
initiated, evidenced, or carried out by means of language,
either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech
and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as
well as many other agreements and conspiracies deemed
injurious to society.[79] (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because
they merely evidence a prohibited conduct.[80] Since speech is not involved
here, the Court cannot heed the call for a facial analysis.
IN FINE, Estrada and the other cited authorities engaged in a vagueness
analysis of the therein subject penal statute as applied to the therein
petitioners inasmuch as they were actually charged with the pertinent
crimes challenged on vagueness grounds. The Court in said cases,
however, found no basis to review the assailed penal statute on its face and
in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds,
since the therein plaintiffs faced a credible threat of prosecution and
should not be required to await and undergo a criminal prosecution as the
sole means of seeking relief.
As earlier reflected, petitioners have established neither an actual charge
nor a credible threat of prosecution under RA 9372. Even a limited
vagueness analysis of the assailed definition of terrorism is thus legally
impermissible. The Court reminds litigants that judicial power neither
contemplates speculative counseling on a statutes future effect on
hypothetical scenarios nor allows the courts to be used as an extension of a
failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED. SO ORDERED.
 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*
*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.
By way of Petition for Review under Rule 45 of the Rules of Court, petitioner
assails the December 8, 2004 Decision3 and April 1, 2005 Resolution4 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

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
Hours of work 48.0 hours per week
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
Overtime US$700.00 per month
but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is,
as it should be, sustained.
Vacation leave with pay 7.00 days per month5

WHEREFORE, the instant petition for review on certiorari is hereby DENIED

for lack of merit. 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
SO ORDERED.
representation of respondents that he would be made Chief Officer by the
end of April 1998.6
EN BANC
Respondents did not deliver on their promise to make petitioner Chief
G.R. No. 167614 March 24, 2009 Officer.7 Hence, petitioner refused to stay on as Second Officer and was
repatriated to the Philippines on May 26, 1998.8
ANTONIO M. SERRANO, Petitioner,
vs. Petitioner's employment contract was for a period of 12 months or from
Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., March 19, 1998 up to March 19, 1999, but at the time of his repatriation on
INC., Respondents. 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.
DECISION

Petitioner filed with the Labor Arbiter (LA) a Complaint9 against respondents
AUSTRIA-MARTINEZ, J.:
for constructive dismissal and for payment of his money claims in the total
amount of US$26,442.73, broken down as follows:
For decades, the toil of solitary migrants has helped lift entire families and
communities out of poverty. Their earnings have built houses, provided
health care, equipped schools and planted the seeds of businesses. They May 27/31, 1998 (5 US$ 413.90
have woven together the world by transmitting ideas and knowledge from days) incl. Leave
country to country. They have provided the dynamic human link between pay
cultures, societies and economies. Yet, only recently have we begun to
understand not only how much international migration impacts development, June 01/30, 1998 2,590.00
but how smart public policies can magnify this effect.
July 01/31, 1998 2,590.00

United Nations Secretary-General Ban Ki-Moon August 01/31, 1998 2,590.00

Global Forum on Migration and Development
Brussels, July 10, 20071 Sept. 01/30, 1998 2,590.00

Oct. 01/31, 1998 2,590.00

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th
paragraph of Section 10, Republic Act (R.A.) No. 8042, 2 to wit: Nov. 01/30, 1998 2,590.00

Dec. 01/31, 1998 2,590.00

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 Jan. 01/31, 1999 2,590.00
contract, the workers shall be entitled to the full reimbursement of his
placement fee with interest of twelve percent (12%) per annum, plus his Feb. 01/28, 1999 2,590.00
salaries for the unexpired portion of his employment contract or for three (3)
Mar. 1/19, 1999 (19 1,640.00
months for every year of the unexpired term, whichever is less.
days) incl. leave
pay
x x x x (Emphasis and underscoring supplied)
------------------------------------------------------------------

does not magnify the contributions of overseas Filipino workers (OFWs) to 25,382.23
national development, but exacerbates the hardships borne by them by
unduly limiting their entitlement in case of illegal dismissal to their lump-sum Amount adjusted to
salary either for the unexpired portion of their employment contract "or for chief mate's salary
three months for every year of the unexpired term, whichever is less"
(subject clause). Petitioner claims that the last clause violates the OFWs' (March 19/31, 1998 1,060.5010
constitutional rights in that it impairs the terms of their contract, deprives to April 1/30, 1998)
them of equal protection and denies them due process. +

------------------------------------------------------------------
TOTAL CLAIM US$ 26,442.7311
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 $8,770.00), representing the complainants
salary for three (3) months of the unexpired portion of the
aforesaid contract of employment.1avvphi1
The respondents are likewise ordered to pay the complainant
[petitioner], jointly and severally, in Philippine Currency, based on
the rate of exchange prevailing at the time of payment, the amount
of FORTY FIVE U.S. DOLLARS (US$ 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 appealed15 to the National Labor Relations
Commission (NLRC) to question the finding of the LA that
petitioner was illegally dismissed.
Petitioner also appealed16 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 Commission17 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
2. Salary differential
US$4,245.00
3. 10% Attorneys fees
TOTAL
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 Certiorari23 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 Reconsideration26 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.
US$4,200.00
On the first and second issues
45.00
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
424.50
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;33and 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 Commission43 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 party48 and at the earliest
opportunity;49 and (3) that the constitutional question is the very lis mota of
the case,50otherwise 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.54Nonetheless, 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 receive57 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,58and 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.61Police 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 scrutiny69 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
classifications73 based on race74 or gender75 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
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:

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.
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:
Case Title Contract Period of Unexp
Period Service

Upon cursory reading, the subject clause appears facially neutral, for it
Skippers v. 6 months 2 months 4
applies to all OFWs. However, a closer examination reveals that the subject
Maguad84
clause has a discriminatory intent against, and an invidious impact on,
OFWs at two levels:
Bahia Shipping v. 9 months 8 months 4
Reynaldo Chua 85
First, OFWs with employment contracts of less than one year vis-
-vis OFWs with employment contracts of one year or more; Centennial 9 months 4 months 5
Transmarine v. dela
Cruz l86
Second, among OFWs with employment contracts of more than
one year; and
Talidano v. Falcon87 12 months 3 months 9

Third, OFWs vis--vis local workers with fixed-period employment; Univan v. CA 88 12 months 3 months 9

Oriental v. CA 89 12 months more than 2 10

OFWs with employment contracts of less than one year vis--vis OFWs months
with employment contracts of one year or more
PCL v. NLRC90 12 months more than 2 more or
78
As pointed out by petitioner, it was in Marsaman Manning Agency, Inc. v. months
National Labor Relations Commission79(Second Division, 1999) that the
Court laid down the following rules on the application of the periods Olarte v. Nayona91 12 months 21 days 11 month
prescribed under Section 10(5) of R.A. No. 804, to wit:
 It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract
JSS v.Ferrer92 12 months 16 days 11 months and 24 or the unexpired
periods 3 months
portions thereof, were treated alike in terms of the
days computation of their monetary benefits in case of illegal dismissal. Their
claims were subjected to a uniform rule of computation: their basic salaries
Pentagon v. 12 months 9 months and 7 2 months and 23 days 2 months and 23 days
multiplied by the entire unexpired portion of their employment contracts.
Adelantar93 days

Phil. Employ v. 12 months 10 months The enactment Unexpired

2 months of the subject clause in R.A. No. 8042 introduced a
portion
Paramio, et al.94 differentiated rule of computation of the money claims of illegally dismissed
OFWs based on their employment periods, in the process singling out one
Flourish Maritime v. 2 years 26 days 23 months and 4 days whose
category 6 months or 3 months
contracts have anforunexpired portion of one year or more
Almanzor 95 and subjectingeach
themyear of contract
to the peculiar disadvantage of having their monetary
awards limited to their salaries for 3 months or for the unexpired portion
Athenna Manpower 1 year, 10 1 month 1 year, 9 months and whichever
thereof, 6 months or 3 months
is less, for while sparing the other category from
but all the
v. Villanos 96 months and 28 28 days
such prejudice,each yearbecause
simply of contract
the latter's unexpired contracts fall short of
days one year.

Among OFWs With Employment Contracts of More Than One Year

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.
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.

The disparity becomes more aggravating when the Court takes into account To concretely illustrate the application of the foregoing interpretation of the
jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14, subject clause, the Court assumes hypothetical OFW-C and OFW-D, who
1995,97 illegally dismissed OFWs, no matter how long the period of their each have a 24-month contract at a salary rate of US$1,000.00 per month.
employment contracts, were entitled to their salaries for the entire unexpired OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th
portions of their contracts. The matrix below speaks for itself: 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
Case Title Contract Period Period of Unexpiredlatter's totalPeriod
salaries for the in
Applied 12the
months unexpired portion of the contract, but
Service Period to the lesserComputation
amount of US$3,000.00
of the or the latter's salaries for 3 months out
of the 12-month unexpired
Monetary term of the contract. On the other hand, OFW-D
Award
is spared from the effects of the subject clause, for there are only 11 months
ATCI v. CA, et al.98 2 years 2 months 22 monthsleft in the latter's 22
contract
months period. Thus, OFW-D will be entitled to
US$11,000.00, which is equivalent to his/her total salaries for the entire 11-
Phil. Integrated v. 2 years 7 days 23 months andmonth
23 unexpired
23 months portion.
and 23 days
NLRC99 days
OFWs vis--vis Local Workers
JGB v. NLC100 2 years 9 months 15 months 15 months
With Fixed-Period Employment
Agoy v. NLRC101 2 years 2 months 22 months 22 months
As discussed earlier, prior to R.A. No. 8042, a uniform system of
EDI v. NLRC, et 2 years 5 months 19 monthscomputation of the19 monetary
months awards of illegally dismissed OFWs was in
al.102 place. This uniform system was applicable even to local workers with fixed-
term employment.107
Barros v. NLRC, et 12 months 4 months 8 months 8 months
al.103
The earliest rule prescribing a uniform system of computation was actually
Philippine 12 months 6 months and 22 5 months andArticle
18 2995ofmonths
the Code
andof18
Commerce
days (1888),108 to wit:
Transmarine v. days days
Carilla104 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. Alkan112 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.
Gay114 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,119involving 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 state125 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-vistheir 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 5th paragraph of Section 10 of R.A. No. 8042
is violative of the right of petitioner and other OFWs to equal
protection.1avvphi1
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 3,131Article 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 DECLAREDUNCONSTITUTIONAL; 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.
AAA,* G.R. No. 171465
Petitioner,
Present:
- versus - Ynares-Santiago, J. (Chairperson),
Austria-Martinez,
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
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 2nd 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]
I
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.
RUBEN DEL CASTILLO @ BOY G.R. No. 185128
CASTILLO, Promulgated:
Petitioner, January 30, 2012
- versus -
PEOPLE OF THE PHILIPPINES,
Respondent.
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 tanod and a few minutes thereafter, his men returned with
two barangay tanods.
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]

In the presence of the barangay tanod, Nelson Gonzalado, and the elder
sister of petitioner named Dolly del Castillo, searched the house of petitioner After the motion for reconsideration of petitioner was denied by the CA,
including the nipa hut where the petitioner allegedly ran for cover. His men petitioner filed with this Court the present petition for certiorari under Rule 45
who searched the residence of the petitioner found nothing, but one of of the Rules of Court with the following arguments raised:
the barangay tanods was able to confiscate from the nipa hut several
articles, including four (4) plastic packs containing white crystalline 1. THE COURT OF APPEALS ERRED IN
substance. Consequently, the articles that were confiscated were sent to the ITS APPLICATION OF THE PROVISIONS OF THE
PNP Crime Laboratory for examination. The contents of the four (4) heat- CONSTITUTION, THE RULES OF COURT AND
sealed transparent plastic packs were subjected to laboratory examination, ESTABLISHED JURISPRUDENCE VIS-A-
the result of which proved positive for the presence of methamphetamine VIS VALIDITY OF SEARCH WARRANT NO. 570-9-
hydrochloride, or shabu. 1197-24;

Thus, an Information was filed before the RTC against petitioner, charging 2. THE COURT OF APPEALS ERRED IN
him with violation of Section 16, Article III of R.A. 6425, as amended. The RULING THAT THE FOUR (4) PACKS OF WHITE
Information[5] reads: CRYSTALLINE POWDER ALLEGEDLY FOUND ON
THE FLOOR OF THE NIPA HUT OR STRUCTURE
That on or about the 13th day of September 1997, at ARE ADMISSIBLE IN EVIDENCE AGAINST THE
about 3:00 p.m. in the City of Cebu, Philippines and PETITIONER, NOT ONLY BECAUSE THE SAID
within the jurisdiction of this Honorable Court, the said COURT SIMPLY PRESUMED THAT IT WAS USED
accused, with deliberate intent, did then and there have BY THE PETITIONER OR THAT THE PETITIONER
in his possession and control four (4) packs of white RAN TO IT FOR COVER WHEN THE SEARCHING
crystalline powder, having a total weight of 0.31 gram, TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO,
locally known as shabu, all containing PRESUMING THAT THE SAID NIPA HUT OR
methamphetamine hydrochloride, a regulated drug, STRUCTURE WAS INDEED USED BY THE
without license or prescription from any competent PETITIONER AND THE FOUR (4) PACKS OF WHITE
authority. CRYSTALLINE POWDER WERE FOUND
THEREAT. THE SUBJECT FOUR (4) PACKS OF
CONTRARY TO LAW.[6] WHITE CRYSTALLINE POWDER ARE FRUITS OF
THE POISONOUS TREE; and

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.
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:
I
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.

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
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 It was testified to during trial by the police officers who effected the search
during a test-buy operation conducted prior to the application of the same warrant that they asked the assistance of the barangay tanods, thus, in the
search warrant. The OSG, however, maintains that the petitioner, aside from testimony of SPO3 Masnayon:
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 Fiscal Centino:
conscious of the falsity of his assertion or representation.
Q For how long did the chase take place?
Anent the second argument, petitioner asserts that the nipa hut located A Just a very few moments.
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 Q After that, what did you [do] when you were not able
that the search warrant did not include the same nipa hut as one of the to reach him?
places to be searched. The OSG, on the other hand, argues that the A I watched his shop and then I requested my men to
constitutional guaranty against unreasonable searches and seizure is get a barangay tanod.
applicable only against government authorities and not to private individuals
such as the barangay tanod who found the folded paper containing packs of Q Were you able to get a barangay tanod?
shabu inside the nipa hut. A Yes.

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 tanodin 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.
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.
RODEL LUZ Y ONG VS. REP OF THE PHILS
FEB 29, 2012
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,
5th 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.
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,
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 Vernonia School 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 constitutedreasonable 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.
BRICCIO Ricky A. POLLO, G.R. No. 181881
Petitioner,
- versus-
CHAIRPERSON KARINA
CONSTANTINO-DAVID,
DIRECTOR IV RACQUEL DE
GUZMAN BUENSALIDA,
DIRECTOR IV LYDIA A.
CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE Promulgated:
AND THE CIVIL SERVICE
COMMISSION, October 18, 2011
Respondents.
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
I
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 2nd 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. Users understand 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 areAFFIRMED.
With costs against the petitioner.
SO ORDERED.
JESSE U. LUCAS VS. JESUS S. LUCAS
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 res is
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.