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woman's health and the potentiality of human life, each of which interests grows and

United States Supreme Court


reaches a "compelling" point at various stages of the woman's approach to term. Pp.
ROE v. WADE, (1973) 147-164.
No. 70-18 (a) For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant
Argued: December 13, 1971 Decided: January 22, 1973 woman's attending physician. Pp. 163, 164.
A pregnant single woman (Roe) brought a class action challenging the (b) For the stage subsequent to approximately the end of the first trimester, the State,
constitutionality of the Texas criminal abortion laws, which proscribe procuring or in promoting its interest in the health of the mother, may, if it chooses, regulate the
attempting an abortion except on medical advice for the purpose of saving the abortion procedure in ways that are reasonably related to maternal health. Pp. 163,
mother's life. A licensed physician (Hallford), who had two state abortion 164.
prosecutions pending against him, was permitted to intervene. A childless married (c) For the stage subsequent to viability the State, in promoting its interest in the
couple (the Does), the wife not being pregnant, separately attacked the laws, basing potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion
alleged injury on the future possibilities of contraceptive failure, pregnancy, except where necessary, in appropriate medical judgment, for the preservation of the
unpreparedness for parenthood, and impairment of the wife's health. A three-judge life or health of the mother. Pp. 163-164; 164-165.
District Court, which consolidated the actions, held that Roe and Hallford, and 4. The State may define the term "physician" to mean only a physician currently
members of their classes, had standing to sue and presented justiciable controversies. licensed by the State, and may proscribe any abortion by a person who is not a
Ruling that declaratory, though not injunctive, relief was warranted, the court physician as so defined. P. 165.
declared the abortion statutes void as vague and overbroadly infringing those 5. It is unnecessary to decide the injunctive relief issue since the Texas authorities
plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' will doubtless fully recognize the Court's ruling [410 U.S. 113, 115] that the Texas
complaint not justiciable. Appellants directly appealed to this Court on the injunctive criminal abortion statutes are unconstitutional. P. 166.
rulings, and appellee cross-appealed from the District Court's grant of declaratory 314 F. Supp. 1217, affirmed in part and reversed in part.
relief to Roe and Hallford. Held: BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and
DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined.
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant or BURGER, C. J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART, J., post,
denial of declaratory relief alone, review is not foreclosed when the case is properly p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which
before the Court on appeal from specific denial of injunctive relief and the arguments REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion,
as to both injunctive and declaratory relief are necessarily identical. P. 123. post, p. 171.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did Sarah Weddington reargued the cause for appellants. With her on the briefs were
not moot her suit. Litigation involving pregnancy, which is "capable of repetition, Roy Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen.
yet evading review," is an exception to the usual federal rule that an actual
controversy [410 U.S. 113, 114] must exist at review stages and not simply when Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for
the action is initiated. Pp. 124-125. appellee on the reargument. Jay Floyd, Assistant Attorney General, argued the cause
(b) The District Court correctly refused injunctive, but erred in granting declaratory, for appellee on the original argument. With them on the brief were Crawford C.
relief to Hallford, who alleged no federally protected right not assertable as a defense Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred
against the good-faith state prosecutions pending against him. Samuels v. Walker, Executive Assistant Attorney General, Henry Wade, and John B.
Mackell, 401 U.S. 66 . Pp. 125-127. Tolle. * [410 U.S. 113, 116]
(c) The Does' complaint, based as it is on contingencies, any one or more of which
may not occur, is too speculative to present an actual case or controversy. Pp. 127- [ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney General
129. of Arizona, Robert K. Killian, Attorney General of Connecticut, Ed W. Hancock,
3. State criminal abortion laws, like those involved here, that except from criminality Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of
only a life-saving procedure on the mother's behalf without regard to the stage of her Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P.
pregnancy and other interests involved violate the Due Process Clause of the Witherspoon, Jr., for the Association of Texas Diocesan Attorneys; by Charles E.
Fourteenth Amendment, which protects against state action the right to privacy, Rice for Americans United for Life; by Eugene J. McMahon for Women for the
including a woman's qualified right to terminate her pregnancy. Though the State Unborn et al.; by Carol Ryan for the American College of Obstetricians and
cannot override that right, it has legitimate interests in protecting both the pregnant Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham,
and Dolores V. Horan for Certain Physicians, Professors and Fellows of the
American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's
Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Penal Code. 1 These make it a crime to "procure an abortion," as therein [410 U.S.
Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of 113, 118] defined, or to attempt one, except with respect to "an abortion procured
the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by [410 or attempted by medical advice for the purpose of saving the life of the mother."
U.S. 113, 116] Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the Similar statutes are in existence in a majority of the States. 2 [410 U.S. 113, 119]
National Right to Life Committee; by Helen L. Buttenwieser for the American
Ethical Union et al.; by Norma G. Zarky for the American Association of University Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, 1, set
Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into
Committee to Legalize Abortion et al.; and by Robert E. Dunne for Robert L. language that has remained substantially unchanged to the present time. See Texas
Sassone. Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197
(1866); Texas Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts.
MR. JUSTICE BLACKMUN delivered the opinion of the Court. 1071-1076 (1911). The final article in each of these compilations provided the same
exception, as does the present Article 1196, for an abortion by "medical advice for
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, the purpose of saving the life of the mother." 3 [410 U.S. 113, 120]
present constitutional challenges to state criminal abortion legislation. The Texas
statutes under attack here are typical of those that have been in effect in many States II
for approximately a century. The Georgia statutes, in contrast, have a modern cast
Jane Roe, 4 a single woman who was residing in Dallas County, Texas, instituted
and are a legislative product that, to an extent at least, obviously reflects the
this federal action in March 1970 against the District Attorney of the county. She
influences of recent attitudinal change, of advancing medical knowledge and
sought a declaratory judgment that the Texas criminal abortion statutes were
techniques, and of new thinking about an old issue.
unconstitutional on their face, and an injunction restraining the defendant from
enforcing the statutes.
We forthwith acknowledge our awareness of the sensitive and emotional nature of
the abortion controversy, of the vigorous opposing views, even among physicians,
Roe alleged that she was unmarried and pregnant; that she wished to terminate her
and of the deep and seemingly absolute convictions that the subject inspires. One's
pregnancy by an abortion "performed by a competent, licensed physician, under safe,
philosophy, one's experiences, one's exposure to the raw edges of human existence,
clinical conditions"; that she was unable to get a "legal" abortion in Texas because
one's religious training, one's attitudes toward life and family and their values, and
her life did not appear to be threatened by the continuation of her pregnancy; and that
the moral standards one establishes and seeks to observe, are all likely to influence
she could not afford to travel to another jurisdiction in order to secure a legal
and to color one's thinking and conclusions about abortion.
abortion under safe conditions. She claimed that the Texas statutes were
unconstitutionally vague and that they abridged her right of personal privacy,
In addition, population growth, pollution, poverty, and racial overtones tend to
protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an
complicate and not to simplify the problem.
amendment to her complaint Roe purported to sue "on behalf of herself and all other
women" similarly situated.
Our task, of course, is to resolve the issue by constitutional measurement, free of
emotion and of predilection. We seek earnestly to do this, and, because we do,
James Hubert Hallford, a licensed physician, sought and was granted leave to
we [410 U.S. 113, 117] have inquired into, and in this opinion place some emphasis
intervene in Roe's action. In his complaint he alleged that he had been arrested
upon, medical and medical-legal history and what that history reveals about man's
previously for violations of the Texas abortion statutes and [410 U.S. 113, 121] that
attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr.
two such prosecutions were pending against him. He described conditions of patients
Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New
who came to him seeking abortions, and he claimed that for many cases he, as a
York, 198 U.S. 45, 76 (1905):
physician, was unable to determine whether they fell within or outside the exception
recognized by Article 1196. He alleged that, as a consequence, the statutes were
"[The Constitution] is made for people of fundamentally differing views, and the
vague and uncertain, in violation of the Fourteenth Amendment, and that they
accident of our finding certain opinions natural and familiar or novel and even
violated his own and his patients' rights to privacy in the doctor-patient relationship
shocking ought not to conclude our judgment upon the question whether statutes
and his own right to practice medicine, rights he claimed were guaranteed by the
embodying them conflict with the Constitution of the United States."
First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
I
John and Mary Doe, 5 a married couple, filed a companion complaint to that of Roe. U.S. 383 (1970), are to the effect that 1253 does not authorize an appeal to this Court
They also named the District Attorney as defendant, claimed like constitutional from the grant or denial of declaratory relief alone. We conclude, nevertheless, that
deprivations, and sought declaratory and injunctive relief. The Does alleged that they those decisions do not foreclose our review of both the injunctive and the declaratory
were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" aspects of a case of this kind when it is properly here, as this one is, on appeal under
disorder; that her physician had "advised her to avoid pregnancy until such time as 1253 from specific denial of injunctive relief, and the arguments as to both aspects
her condition has materially improved" (although a pregnancy at the present time are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320 (1970); Florida
would not present "a serious risk" to her life); that, pursuant to medical advice, she Lime Growers v. Jacobsen, 362 U.S. 73, 80 -81 (1960). It would be destructive of
had discontinued use of birth control pills; and that if she should become pregnant, time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post,
she would want to terminate the pregnancy by an abortion performed by a p. 179.
competent, licensed physician under safe, clinical conditions. By an amendment to
their complaint, the Does purported to sue "on behalf of themselves and all couples IV
similarly situated."
We are next confronted with issues of justiciability, standing, and abstention. Have
Roe and the Does established that "personal stake in the outcome of the
The two actions were consolidated and heard together by a duly convened three-
controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that "the dispute
judge district court. The suits thus presented the situations of the pregnant single
sought to be adjudicated will be presented in an adversary context and in a form
woman, the childless couple, with the wife not pregnant,[410 U.S. 113, 122] and
historically viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83,
the licensed practicing physician, all joining in the attack on the Texas criminal
101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)? And what effect
abortion statutes. Upon the filing of affidavits, motions were made for dismissal and
did the pendency of criminal abortion charges against Dr. Hallford in state court
for summary judgment. The court held that Roe and members of her class, and Dr.
have upon the propriety of the federal court's granting relief to him as a plaintiff-
Hallford, had standing to sue and presented justiciable controversies, but that the
intervenor? [410 U.S. 113, 124]
Does had failed to allege facts sufficient to state a present controversy and did not
have standing. It concluded that, with respect to the requests for a declaratory
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a
judgment, abstention was not warranted. On the merits, the District Court held that
fictitious person. For purposes of her case, we accept as true, and as established, her
the "fundamental right of single women and married persons to choose whether to
existence; her pregnant state, as of the inception of her suit in March 1970 and as late
have children is protected by the Ninth Amendment, through the Fourteenth
as May 21 of that year when she filed an alias affidavit with the District Court; and
Amendment," and that the Texas criminal abortion statutes were void on their face
her inability to obtain a legal abortion in Texas.
because they were both unconstitutionally vague and constituted an overbroad
infringement of the plaintiffs' Ninth Amendment rights. The court then held that Viewing Roe's case as of the time of its filing and thereafter until as late as May,
abstention was warranted with respect to the requests for an injunction. It therefore there can be little dispute that it then presented a case or controversy and that, wholly
dismissed the Does' complaint, declared the abortion statutes void, and dismissed the
apart from the class aspects, she, as a pregnant single woman thwarted by the Texas
application for injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).
criminal abortion laws, had standing to challenge those statutes. Abele v. Markle,
452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. 1253,
(CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v.
have appealed to this Court from that part of the District Court's judgment denying
Raich, 239 U.S. 33 (1915). Indeed, we do not read the appellee's brief as really
the injunction. The defendant District Attorney has purported to cross-appeal,
asserting anything to the contrary. The "logical nexus between the status asserted and
pursuant to the same statute, from the court's grant of declaratory relief to Roe and
the claim sought to be adjudicated," Flast v. Cohen, 392 U.S., at 102 , and the
Hallford. Both sides also have taken protective appeals to the United States Court of
necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are
Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance
both present.
pending decision here. We postponed decision on jurisdiction to the hearing on the
merits. 402 U.S. 941 (1971). [410 U.S. 113, 123] The appellee notes, however, that the record does not disclose that Roe was pregnant
at the time of the District Court hearing on May 22, 1970, 6 or on the following June
III 17 when the court's opinion and judgment were filed. And he suggests that Roe's
It might have been preferable if the defendant, pursuant to our Rule 20, had case must now be moot because she and all other members of her class are no longer
presented to us a petition for certiorari before judgment in the Court of Appeals with subject to any 1970 pregnancy. [410 U.S. 113, 125]
respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in
Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399
The usual rule in federal cases is that an actual controversy must exist at stages of We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S.
appellate or certiorari review, and not simply at the date the action is initiated. 66 (1971), compels the conclusion that the District Court erred when it granted
United States v. Munsingwear, Inc., 340 U.S. 36(1950); Golden v. Zwickler, supra; declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of
SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972). course, was correct in refusing to grant injunctive relief to the doctor. The reasons
supportive of that action, however, are those expressed in Samuels v. Mackell, supra,
But when, as here, pregnancy is a significant fact in the litigation, the normal 266- and in Younger v. [410 U.S. 113, 127] Harris, 401 U.S. 37 (1971); Boyle v.
day human gestation period is so short that the pregnancy will come to term before Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82(1971); and Byrne v.
the usual appellate process is complete. If that termination makes a case moot, Karalexis, 401 U.S. 216 (1971). See also Dombrowski v. Pfister, 380 U.S.
pregnancy litigation seldom will survive much beyond the trial stage, and appellate 479 (1965). We note, in passing, that Younger and its companion cases were decided
review will be effectively denied. Our law should not be that rigid. Pregnancy often after the three-judge District Court decision in this case.
comes more than once to the same woman, and in the general population, if man is to
survive, it will always be with us. Pregnancy provides a classic justification for a Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is
conclusion of nonmootness. It truly could be "capable of repetition, yet evading remitted to his defenses in the state criminal proceedings against him. We reverse the
review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). See judgment of the District Court insofar as it granted Dr. Hallford relief and failed to
Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, dismiss his complaint in intervention.
178 -179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632 -633 (1953).
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the
We, therefore, agree with the District Court that Jane Roe had standing to undertake Does' standing in their case has little significance. The claims they assert are
this litigation, that she presented a justiciable controversy, and that the termination of essentially the same as those of Roe, and they attack the same statutes. Nevertheless,
her 1970 pregnancy has not rendered her case moot. we briefly note the Does' posture.

B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a Their pleadings present them as a childless married couple, the woman not being
plaintiff-intervenor, alleging in his complaint that he: pregnant, who have no desire to have children at this time because of their having
received medical advice that Mrs. Doe should avoid pregnancy, and for "other highly
"[I]n the past has been arrested for violating the Texas Abortion Laws and at the personal reasons." But they "fear . . . they may face the prospect of becoming[410
present time stands charged by indictment with violating said laws in the Criminal U.S. 113, 128] parents." And if pregnancy ensues, they "would want to terminate" it
District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. [410 U.S. by an abortion. They assert an inability to obtain an abortion legally in Texas and,
113, 126] James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. consequently, the prospect of obtaining an illegal abortion there or of going outside
James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with Texas to some place where the procedure could be obtained legally and competently.
abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to We thus have as plaintiffs a married couple who have, as their asserted immediate
the abortion charges pending in the state court. These representations were also and present injury, only an alleged "detrimental effect upon [their] marital
repeated in the affidavit he executed and filed in support of his motion for summary happiness" because they are forced to "the choice of refraining from normal sexual
judgment. relations or of endangering Mary Doe's health through a possible pregnancy." Their
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory claim is that sometime in the future Mrs. Doe might become pregnant because of
and injunctive relief with respect to the same statutes under which he stands charged possible failure of contraceptive measures, and at that time in the future she might
in criminal prosecutions simultaneously pending in state court. Although he stated want an abortion that might then be illegal under the Texas statutes.
that he has been arrested in the past for violating the State's abortion laws, he makes
no allegation of any substantial and immediate threat to any federally protected right This very phrasing of the Does' position reveals its speculative character. Their
that cannot be asserted in his defense against the state prosecutions. Neither is there alleged injury rests on possible future contraceptive failure, possible future
any allegation of harassment or bad-faith prosecution. In order to escape the rule pregnancy, possible future unpreparedness for parenthood, and possible future
articulated in the cases cited in the next paragraph of this opinion that, absent impairment of health. Any one or more of these several possibilities may not take
harassment and bad faith, a defendant in a pending state criminal case cannot place and all may not combine. In the Does' estimation, these possibilities might
affirmatively challenge in federal court the statutes under which the State is have some real or imagined impact upon their marital happiness. But we are not
prosecuting him, Dr. Hallford seeks to distinguish his status as a present state prepared to say that the bare allegation of so indirect an injury is sufficient to present
defendant from his status as a "potential future defendant" and to assert only the an actual case or controversy. Younger v. Harris, 401 U.S., at 41 -42; Golden v.
latter for standing purposes here. Zwickler,394 U.S., at 109 -110; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v.
Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved (460(?)-377(?) B. C.), who has been described[410 U.S. 113, 131] as the Father of
otherwise in the cases that the Does urge upon us, namely, Investment Co. Institute Medicine, the "wisest and the greatest practitioner of his art," and the "most
v. Camp, 401 U.S. 617 (1971); Data Processing Service v. Camp, 397 U.S. important and most complete medical personality of antiquity," who dominated the
150 (1970);[410 U.S. 113, 129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See medical schools of his time, and who typified the sum of the medical knowledge of
also Truax v. Raich, 239 U.S. 33 (1915). the past? 13 The Oath varies somewhat according to the particular translation, but in
any translation the content is clear: "I will give no deadly medicine to anyone if
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint asked, nor suggest any such counsel; and in like manner I will not give to a woman a
was properly dismissed by the District Court, and we affirm that dismissal. pessary to produce abortion," 14 or "I will neither give a deadly drug to anybody if
asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a
V woman an abortive remedy." 15
The principal thrust of appellant's attack on the Texas statutes is that they improperly
Although the Oath is not mentioned in any of the principal briefs in this case or in
invade a right, said to be possessed by the pregnant woman, to choose to terminate
Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical
her pregnancy. Appellant would discover this right in the concept of personal
concepts in medicine, and its influence endures to this day. Why did not the authority
"liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in
of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr.
personal, marital, familial, and sexual privacy said to be protected by the Bill of
Edelstein provides us with a theory: 16 The Oath was not uncontested even in
Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965);
Hippocrates' day; only the Pythagorean school of philosophers frowned upon the
Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in
related act of suicide. Most Greek thinkers, on the other hand, commended abortion,
result); or among those rights reserved to the people by the Ninth Amendment,
at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b
Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring). Before
25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo
addressing this claim, we feel it desirable briefly to survey, in several aspects, the
was animate from the moment of conception, and abortion meant destruction of a
history of abortion, for such insight as that history may afford us, and then to
living being. The abortion clause of the Oath, therefore, "echoes Pythagorean
examine the state purposes and interests behind the criminal abortion laws.
doctrines," [410 U.S. 113, 132] and "[i]n no other stratum of Greek opinion were
such views held or proposed in the same spirit of uncompromising austerity." 17
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in Dr. Edelstein then concludes that the Oath originated in a group representing only a
effect in a majority of States today are of relatively recent vintage. Those laws, small segment of Greek opinion and that it certainly was not accepted by all ancient
generally proscribing abortion or its attempt at any time during pregnancy except physicians. He points out that medical writings down to Galen (A. D. 130-200) "give
when necessary to preserve the pregnant woman's life, are not of ancient or even of evidence of the violation of almost every one of its injunctions." 18 But with the end
common-law origin. Instead, they derive from statutory changes effected, for the of antiquity a decided change took place. Resistance against suicide and against
most part, in the latter half of the 19th century. [410 U.S. 113, 130] abortion became common. The Oath came to be popular. The emerging teachings of
Christianity were in agreement with the Pythagorean ethic. The Oath "became the
1. Ancient attitudes. These are not capable of precise determination. We are told that nucleus of all medical ethics" and "was applauded as the embodiment of truth."
at the time of the Persian Empire abortifacients were known and that criminal Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression
abortions were severely punished. 8 We are also told, however, that abortion was of an absolute standard of medical conduct." 19
practiced in Greek times as well as in the Roman Era, 9 and that "it was resorted to
without scruple." 10 The Ephesian, Soranos, often described as the greatest of the This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic
ancient gynecologists, appears to have been generally opposed to Rome's prevailing Oath's apparent rigidity. It enables us to understand, in historical context, a long-
free-abortion practices. He found it necessary to think first of the life of the mother, accepted and revered statement of medical ethics.
and he resorted to abortion when, upon this standard, he felt the procedure
advisable. 11 Greek and Roman law afforded little protection to the unborn. If 3. The common law. It is undisputed that at common law, abortion performed before
abortion was prosecuted in some places, it seems to have been based on a concept of "quickening" - the first recognizable movement of the fetus in utero, appearing
a violation of the father's right to his offspring. Ancient religion did not bar usually from the 16th to the 18th week of pregnancy 20- was not an indictable
abortion. 12 offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for pre-
quickening abortion appears to have developed from a confluence of earlier
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the philosophical, theological, and civil and canon law concepts of when life begins.
ethical guide of the medical profession and that bears the name of the great Greek These disciplines variously approached the question in terms of the point at which
the embryo or fetus became "formed" or recognizably human, or in terms of when a felony. It contained a proviso that one was not to be [410 U.S. 113, 137] found
"person" came into being, that is, infused with a "soul" or "animated." A loose guilty of the offense "unless it is proved that the act which caused the death of the
consensus evolved in early English law that these events occurred at some point child was not done in good faith for the purpose only of preserving the life of the
between conception and live birth. 22 This was "mediate animation." Although[410 mother."
U.S. 113, 134] Christian theology and the canon law came to fix the point of
animation at 40 days for a male and 80 days for a female, a view that persisted until A seemingly notable development in the English law was the case of Rex v. Bourne,
the 19th century, there was otherwise little agreement about the precise time of 1939. 1 K. B. 687. This case apparently answered in the affirmative the question
formation or animation. There was agreement, however, that prior to this point the whether an abortion necessary to preserve the life of the pregnant woman was
fetus was to be regarded as part of the mother, and its destruction, therefore, was not excepted from the criminal penalties of the 1861 Act. In his instructions to the jury,
homicide. Due to continued uncertainty about the precise time when animation Judge Macnaghten referred to the 1929 Act, and observed that that Act related to
occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to "the case where a child is killed by a wilful act at the time when it is being delivered
Aquinas' definition of movement as one of the two first principles of life, Bracton in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of
focused upon quickening as the critical point. The significance of quickening was the word "unlawfully," imported the same meaning expressed by the specific proviso
echoed by later common-law scholars and found its way into the received common in the 1929 Act, even though there was no mention of preserving the mother's life in
law in this country. the 1861 Act. He then construed the phrase "preserving the life of the mother"
broadly, that is, "in a reasonable sense," to include a serious and permanent threat to
Whether abortion of a quick fetus was a felony at common law, or even a lesser the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had
crime, is still disputed. Bracton, writing early in the 13th century, thought it acted in a good-faith belief that the abortion was necessary for this purpose. Id., at
homicide. 23 But the later and predominant view, following the great common-law 693-694. The jury did acquit.
scholars, has been that it was, at most, a lesser offense. In a frequently cited [410
U.S. 113, 135] passage, Coke took the position that abortion of a woman "quick Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967,
with childe" is "a great misprision, and no murder." 24 Blackstone followed, saying 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion
that while abortion after quickening had once been considered manslaughter (though where two other licensed physicians agree (a) "that the continuance of the pregnancy
not murder), "modern law" took a less severe view. 25 A recent review of the would involve risk to the life of the pregnant woman, or of injury to the physical or
common-law precedents argues, however, that those precedents contradict Coke and mental health of the pregnant woman or any existing children of her family, greater
that even post-quickening abortion was never established as a common-law than if the pregnancy were terminated," or (b) "that there is a substantial risk that if
crime. 26 This is of some importance because while most American courts ruled, in the child were born it would suffer from such physical or mental abnormalities
holding or dictum, that abortion of an unquickened fetus was not criminal under their as [410 U.S. 113, 138] to be seriously handicapped." The Act also provides that, in
received common law, 27 others followed Coke in stating that abortion [410 U.S. making this determination, "account may be taken of the pregnant woman's actual or
113, 136] of a quick fetus was a "misprision," a term they translated to mean reasonably foreseeable environment." It also permits a physician, without the
"misdemeanor." 28 That their reliance on Coke on this aspect of the law was concurrence of others, to terminate a pregnancy where he is of the good-faith opinion
uncritical and, apparently in all the reported cases, dictum (due probably to the that the abortion "is immediately necessary to save the life or to prevent grave
paucity of common-law prosecutions for post-quickening abortion), makes it now permanent injury to the physical or mental health of the pregnant woman."
appear doubtful that abortion was ever firmly established as a common-law crime
even with respect to the destruction of a quick fetus. 5. The American law. In this country, the law in effect in all but a few States until
mid-19th century was the pre-existing English common law. Connecticut, the first
4. The English statutory law. England's first criminal abortion statute, Lord State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick Act that related to a woman "quick with child." 29 The death penalty was not
fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony of abortion imposed. Abortion before quickening was made a crime in that State only in
before quickening, and thus preserved the "quickening" distinction. This contrast was 1860. 30 In 1828, New York enacted legislation 31 that, in two respects, was to serve
continued in the general revision of 1828, 9 Geo. 4, c. 31, 13. It disappeared, as a model for early anti-abortion statutes. First, while barring destruction of an
however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6, and unquickened fetus as well as a quick fetus, it made the former only a misdemeanor,
did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. but the latter second-degree manslaughter. Second, it incorporated a concept of
100, 59, that formed the core of English anti-abortion law until the liberalizing therapeutic abortion by providing that an abortion was excused if it "shall have been
reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, necessary to preserve the life of such mother, or shall have been advised by two
came into being. Its emphasis was upon the destruction of "the life of a child capable physicians to be necessary for such purpose." By 1840, when Texas had received the
of being born alive." It made a willful act performed with the necessary intent a common law, 32 only eight American States [410 U.S. 113, 139] had statutes
dealing with abortion. 33 It was not until after the War Between the States that "The third reason of the frightful extent of this crime is found in the grave defects of
legislation began generally to replace the common law. Most of these initial statutes our laws, both common and statute, as regards the independent and actual existence
dealt severely with abortion after quickening but were lenient with it before of the child before birth, as a living being. These errors, which are sufficient in most
quickening. Most punished attempts equally with completed abortions. While many instances to prevent conviction, are based, and only based, upon mistaken and
statutes included the exception for an abortion thought by one or more physicians to exploded medical dogmas. With strange inconsistency, the law fully acknowledges
be necessary to save the mother's life, that provision soon disappeared and the typical the foetus in utero and its inherent rights, for civil purposes; while personally and as
law required that the procedure actually be necessary for that purpose. criminally affected, it fails to recognize it, [410 U.S. 113, 142] and to its life as yet
denies all protection." Id., at 75-76.
Gradually, in the middle and late 19th century the quickening distinction disappeared The Committee then offered, and the Association adopted, resolutions protesting
from the statutory law of most States and the degree of the offense and the penalties "against such unwarrantable destruction of human life," calling upon state
were increased. By the end of the 1950's, a large majority of the jurisdictions banned legislatures to revise their abortion laws, and requesting the cooperation of state
abortion, however and whenever performed, unless done to save or preserve the life medical societies "in pressing the subject." Id., at 28, 78.
of the mother. 34 The exceptions, Alabama and the District of Columbia, permitted In 1871 a long and vivid report was submitted by the Committee on Criminal
abortion to preserve the mother's health. 35 Three States permitted abortions that Abortion. It ended with the observation, "We had to deal with human life. In a matter
were not "unlawfully" performed or that were not "without lawful justification," of less importance we could entertain no compromise. An honest judge on the bench
leaving interpretation of those standards to the courts. 36 In [410 U.S. 113, 140] the would call things by their proper names. We could do no less." 22 Trans. of the Am.
past several years, however, a trend toward liberalization of abortion statutes has Med. Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at
resulted in adoption, by about one-third of the States, of less stringent laws, most of 38-39, recommending, among other things, that it "be unlawful and unprofessional
them patterned after the ALI Model Penal Code, 230.3, 37 set forth as Appendix B to for any physician to induce abortion or premature labor, without the concurrent
the opinion in Doe v. Bolton, post, p. 205. opinion of at least one respectable consulting physician, and then always with a view
to the safety of the child - if that be possible," and calling "the attention of the clergy
It is thus apparent that at common law, at the time of the adoption of our of all denominations to the perverted views of morality entertained by a large class
Constitution, and throughout the major portion of the 19th century, abortion was of females - aye, and men also, on this important question."
viewed with less disfavor than under most American statutes currently in effect.
Phrasing it another way, a woman enjoyed a substantially broader right to terminate Except for periodic condemnation of the criminal abortionist, no further formal
a pregnancy than she does in most States today. At least with respect to the early AMA action took place until 1967. In that year, the Committee on Human
stage of pregnancy, and very possibly without such a limitation, the opportunity [410 Reproduction urged the adoption of a stated policy of opposition to induced abortion,
U.S. 113, 141] to make this choice was present in this country well into the 19th except when there is "documented medical evidence" of a threat to the health or life
century. Even later, the law continued for some time to treat less punitively an of the mother, or that the child "may be born with incapacitating physical deformity
abortion procured in early pregnancy. or mental deficiency," or that a pregnancy "resulting from legally established
statutory or forcible rape or incest may constitute a threat to the mental or physical
6. The position of the American Medical Association. The anti-abortion mood health of the [410 U.S. 113, 143] patient," two other physicians "chosen because of
prevalent in this country in the late 19th century was shared by the medical their recognized professional competence have examined the patient and have
profession. Indeed, the attitude of the profession may have played a significant role concurred in writing," and the procedure "is performed in a hospital accredited by the
in the enactment of stringent criminal abortion legislation during that period. Joint Commission on Accreditation of Hospitals." The providing of medical
information by physicians to state legislatures in their consideration of legislation
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented regarding therapeutic abortion was "to be considered consistent with the principles of
its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual ethics of the American Medical Association." This recommendation was adopted by
Meeting. That report observed that the Committee had been appointed to investigate the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June
criminal abortion "with a view to its general suppression." It deplored abortion and 1967).
its frequency and it listed three causes of "this general demoralization":
In 1970, after the introduction of a variety of proposed resolutions, and of a report
"The first of these causes is a wide-spread popular ignorance of the true character of from its Board of Trustees, a reference committee noted "polarization of the medical
the crime - a belief, even among mothers themselves, that the foetus is not alive till profession on this controversial issue"; division among those who had testified; a
after the period of quickening. difference of opinion among AMA councils and committees; "the remarkable shift in
"The second of the agents alluded to is the fact that the profession themselves are testimony" in six months, felt to be influenced "by the rapid changes in state laws
frequently supposed careless of foetal life . . . . and by the judicial decisions which tend to make abortion more freely available;"
and a feeling "that this trend will continue." On June 25, 1970, the House of 8. The position of the American Bar Association. At its meeting in February 1972
Delegates adopted preambles and most of the resolutions proposed by the reference the ABA House of Delegates approved, with 17 opposing votes, the Uniform
committee. The preambles emphasized "the best interests of the patient," "sound Abortion Act that had been drafted and approved the preceding August by the
clinical judgment," and "informed patient consent," in contrast to "mere Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972).
acquiescence to the patient's demand." The resolutions asserted that abortion is a We set forth the Act in full in the margin. 40 The [410 U.S. 113, 147] Conference
medical procedure that should be performed by a licensed physician in an accredited has appended an enlightening Prefatory Note.41
hospital only after consultation with two other physicians and in conformity with
state law, and that no party to the procedure should be required to violate personally VII
held moral principles. 38 Proceedings [410 U.S. 113, 144] of the AMA House of
Three reasons have been advanced to explain historically the enactment of criminal
Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary
abortion laws in the 19th century and to justify their continued existence. [410 U.S.
opinion. 39
113, 148]
7. The position of the American Public Health Association. In October 1970, the
It has been argued occasionally that these laws were the product of a Victorian social
Executive Board of the APHA adopted Standards for Abortion Services. These were
concern to discourage illicit sexual conduct. Texas, however, does not advance this
five in number:
justification in the present case, and it appears that no court or commentator has
taken the argument seriously. 42 The appellants and amici contend, moreover, that
"a. Rapid and simple abortion referral must be readily available through state and
this is not a proper state purpose at all and suggest that, if it were, the Texas statutes
local public [410 U.S. 113, 145] health departments, medical societies, or other
are overbroad in protecting it since the law fails to distinguish between married and
nonprofit organizations.
unwed mothers.
"b. An important function of counselling should be to simplify and expedite the
provision of abortion services; it should not delay the obtaining of these services.
A second reason is concerned with abortion as a medical procedure. When most
"c. Psychiatric consultation should not be mandatory. As in the case of other
criminal abortion laws were first enacted, the procedure was a hazardous one for the
specialized medical services, psychiatric consultation should be sought for definite
woman. 43 This was particularly true prior to the [410 U.S. 113, 149] development
indications and not on a routine basis.
of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister,
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to
Pasteur, and others first announced in 1867, but were not generally accepted and
highly skilled physicians may qualify as abortion counselors.
employed until about the turn of the century. Abortion mortality was high. Even after
"e. Contraception and/or sterilization should be discussed with each abortion
1900, and perhaps until as late as the development of antibiotics in the 1940's,
patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396
standard modern techniques such as dilation and curettage were not nearly so safe as
(1971).
they are today. Thus, it has been argued that a State's real concern in enacting a
Among factors pertinent to life and health risks associated with abortion were three
criminal abortion law was to protect the pregnant woman, that is, to restrain her from
that "are recognized as important":
submitting to a procedure that placed her life in serious jeopardy.
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
Modern medical techniques have altered this situation. Appellants and various amici
"c. the duration of pregnancy, as determined by uterine size and confirmed by
refer to medical data indicating that abortion in early pregnancy, that is, prior to the
menstrual history." Id., at 397.
end of the first trimester, although not without its risk, is now relatively safe.
It was said that "a well-equipped hospital" offers more protection "to cope with
Mortality rates for women undergoing early abortions, where the procedure is legal,
unforeseen difficulties than an office or clinic without such resources. . . . The factor
appear to be as low as or lower than the rates for normal childbirth. 44 Consequently,
of gestational age is of overriding importance." Thus, it was recommended that any interest of the State in protecting the woman from an inherently hazardous
abortions in the second trimester and early abortions in the presence of existing procedure, except when it would be equally dangerous for her to forgo it, has largely
medical complications be performed in hospitals as inpatient procedures. For disappeared. Of course, important state interests in the areas of health and medical
pregnancies in the first trimester, [410 U.S. 113, 146] abortion in the hospital with
standards do remain. [410 U.S. 113, 150] The State has a legitimate interest in
or without overnight stay "is probably the safest practice." An abortion in an
seeing to it that abortion, like any other medical procedure, is performed under
extramural facility, however, is an acceptable alternative "provided arrangements
circumstances that insure maximum safety for the patient. This interest obviously
exist in advance to admit patients promptly if unforeseen complications develop."
extends at least to the performing physician and his staff, to the facilities involved, to
Standards for an abortion facility were listed. It was said that at present abortions
the availability of after-care, and to adequate provision for any complication or
should be performed by physicians or osteopaths who are licensed to practice and
emergency that might arise. The prevalence of high mortality rates at illegal
who have "adequate training." Id., at 398.
"abortion mills" strengthens, rather than weakens, the State's interest in regulating 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United
the conditions under which abortions are performed. Moreover, the risk to the States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438,
woman increases as her pregnancy continues. Thus, the State retains a definite 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights,
interest in protecting the woman's own health and safety when an abortion is Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486
proposed at a late stage of pregnancy. (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section
of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
The third reason is the State's interest - some phrase it in terms of duty - in protecting These decisions make it clear that only personal rights that can be deemed
prenatal life. Some of the argument for this justification rests on the theory that a "fundamental" or "implicit in the concept of ordered liberty," Palko v.
new human life is present from the moment of conception. 45 The State's interest and Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal
general obligation to protect life then extends, it is argued, to prenatal life. Only privacy. They also make it clear that the right has some extension to activities
when the life of the pregnant mother herself is at stake, balanced against the life she relating to marriage, Loving v. Virginia, 388 U.S. 1, 12(1967); procreation, Skinner
carries within her, should the interest of the embryo or fetus not prevail. Logically, of v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird,405
course, a legitimate state interest in this area need not stand or fall on acceptance of U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring
the belief that life begins at conception or at some other point prior to live birth. In in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944);
assessing the State's interest, recognition may be given to the less rigid claim that as and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510,
long as at least potential life is involved, the State may assert interests beyond the 535 (1925), Meyer v. Nebraska, supra.
protection of the pregnant woman alone. [410 U.S. 113, 151]
This right of privacy, whether it be founded in the Fourteenth Amendment's concept
Parties challenging state abortion laws have sharply disputed in some courts the of personal liberty and restrictions upon state action, as we feel it is, or, as the
contention that a purpose of these laws, when enacted, was to protect prenatal District Court determined, in the Ninth Amendment's reservation of rights to the
life. 46 Pointing to the absence of legislative history to support the contention, they people, is broad enough to encompass a woman's decision whether or not to
claim that most state laws were designed solely to protect the woman. Because terminate her pregnancy. The detriment that the State would impose upon the
medical advances have lessened this concern, at least with respect to abortion in pregnant woman by denying this choice altogether is apparent. Specific and direct
early pregnancy, they argue that with respect to such abortions the laws can no harm medically diagnosable even in early pregnancy may be involved. Maternity, or
longer be justified by any state interest. There is some scholarly support for this view additional offspring, may force upon the woman a distressful life and future.
of original purpose. 47 The few state courts called upon to interpret their laws in the Psychological harm may be imminent. Mental and physical health may be taxed by
late 19th and early 20th centuries did focus on the State's interest in protecting the child care. There is also the distress, for all concerned, associated with the unwanted
woman's health rather than in preserving the embryo and fetus. 48 Proponents of this child, and there is the problem of bringing a child into a family already unable,
view point out that in many States, including Texas, 49 by statute or judicial psychologically and otherwise, to care for it. In other cases, as in this one, the
interpretation, the pregnant woman herself could not be prosecuted for self-abortion additional difficulties and continuing stigma of unwed motherhood may be involved.
or for cooperating in an abortion performed upon her by another. 50 They claim that All these are factors the woman and her responsible physician necessarily will
adoption of the "quickening" distinction through received common [410 U.S. 113, consider in consultation.
152] law and state statutes tacitly recognizes the greater health hazards inherent in
late abortion and impliedly repudiates the theory that life begins at conception. On the basis of elements such as these, appellant and some amici argue that the
woman's right is absolute and that she is entitled to terminate her pregnancy at
It is with these interests, and the weight to be attached to them, that this case is whatever time, in whatever way, and for whatever reason she alone chooses. With
concerned. this we do not agree. Appellant's arguments that Texas either has no valid interest at
all in regulating the abortion decision, or no interest strong enough to support any
VIII limitation upon the woman's sole determination, are unpersuasive. The [410 U.S.
The Constitution does not explicitly mention any right of privacy. In a line of 113, 154] Court's decisions recognizing a right of privacy also acknowledge that
some state regulation in areas protected by that right is appropriate. As noted above,
decisions, however, going back perhaps as far as Union Pacific R. Co. v.
a State may properly assert important interests in safeguarding health, in maintaining
Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal
medical standards, and in protecting potential life. At some point in pregnancy, these
privacy, or a guarantee of certain areas or zones of privacy, does exist under the
respective interests become sufficiently compelling to sustain regulation of the
Constitution. In varying contexts, the Court or individual Justices have, indeed,
factors that govern the abortion decision. The privacy right involved, therefore,
found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394
cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by
U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S.
some amici that one has an unlimited right to do with one's body as one pleases bears
a close relationship to the right of privacy previously articulated in the Court's In the recent abortion cases, cited above, courts have recognized these principles.
decisions. The Court has refused to recognize an unlimited right of this kind in the Those striking down state laws have generally scrutinized the State's interests in
past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 protecting health and potential life, and have concluded that neither interest justified
U.S. 200 (1927) (sterilization). broad limitations on the reasons for which a physician and his pregnant patient might
decide that she should have an abortion in the early stages of pregnancy. Courts
We, therefore, conclude that the right of personal privacy includes the abortion sustaining state laws have held that the State's determinations to protect health or
decision, but that this right is not unqualified and must be considered against prenatal life are dominant and constitutionally justifiable.
important state interests in regulation.
IX
We note that those federal and state courts that have recently considered abortion law
The District Court held that the appellee failed to meet his burden of demonstrating
challenges have reached the same conclusion. A majority, in addition to the District
that the Texas statute's infringement upon Roe's rights was necessary to support a
Court in the present case, have held state laws unconstitutional, at least in part,
compelling state interest, and that, although the appellee presented "several
because of vagueness or because of overbreadth and abridgment of rights. Abele v.
compelling justifications for state presence in the area of abortions," the statutes
Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56; Abele v.
outstripped these justifications and swept "far beyond any areas of compelling state
Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730; Doe v.
interest." 314 F. Supp., at 1222-1223. Appellant and appellee both contest that
Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v.
holding. Appellant, as has been indicated, claims an absolute right that bars any state
Scott, 321 F. Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v.
imposition of criminal penalties in the area. Appellee argues that the State's
Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F. Supp. 1048 (NJ
determination to recognize and protect prenatal life from and after conception
1972); Babbitz v. McCann,[410 U.S. 113, 155] 310 F. Supp. 293 (ED Wis. 1970),
constitutes a compelling state interest. As noted above, we do not agree fully with
appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P.2d 194
either formulation.
(1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So.2d 431 (Fla.
1972).
A. The appellee and certain amici argue that the fetus is a "person" within the
language and meaning of the Fourteenth Amendment. In support of this, they outline
Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587
at length and in detail the well-known facts of fetal development. If this suggestion
(ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of
of personhood is established, the appellant's case, of course, collapses, [410 U.S.
Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No. 70-42;
113, 157] for the fetus' right to life would then be guaranteed specifically by the
Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92;
Amendment. The appellant conceded as much on reargument. 51 On the other hand,
Steinberg v. Brown, 321 F. Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah
the appellee conceded on reargument 52that no case could be cited that holds that a
1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N. E. 2d
fetus is a person within the meaning of the Fourteenth Amendment.
265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S. D.
663, 201 N. W. 2d 123 (1972), appeal docketed, No. 72-631.
The Constitution does not define "person" in so many words. Section 1 of the
Fourteenth Amendment contains three references to "person." The first, in defining
Although the results are divided, most of these courts have agreed that the right of
"citizens," speaks of "persons born or naturalized in the United States." The word
privacy, however based, is broad enough to cover the abortion decision; that the
also appears both in the Due Process Clause and in the Equal Protection Clause.
right, nonetheless, is not absolute and is subject to some limitations; and that at some
"Person" is used in other places in the Constitution: in the listing of qualifications for
point the state interests as to protection of health, medical standards, and prenatal
Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment
life, become dominant. We agree with this approach.
Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1;
in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2,
Where certain "fundamental rights" are involved, the Court has held that regulation
and the superseded cl. 3; in the provision outlining qualifications for the office of
limiting these rights may be justified only by a "compelling state interest," Kramer v.
President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the
Union Free School District, 395 U.S. 621, 627(1969); Shapiro v. Thompson, 394
superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second
U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that
Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all
legislative enactments must be narrowly drawn to express only the legitimate state
these instances, the use of the word is such that it has application only postnatally.
interests at stake. Griswold v. Connecticut, 381 U.S., at 485 ; Aptheker v. Secretary
None indicates, with any assurance, that it has any possible pre-natal
of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307 -308
application. 54 [410 U.S. 113, 158]
(1940); see [410 U.S. 113, 156] Eisenstadt v. Baird, 405 U.S., at 460 , 463-464
(WHITE, J., concurring in result).
All this, together with our observation, supra, that throughout the major portion of the conscience of the individual and her family. 58 As we have noted, the common
the 19th century prevailing legal abortion practices were far freer than they are law found greater significance in quickening. Physicians and their scientific
today, persuades us that the word "person," as used in the Fourteenth Amendment, colleagues have regarded that event with less interest and have tended to focus either
does not include the unborn. 55 This is in accord with the results reached in those upon conception, upon live birth, or upon the interim point at which the fetus
few cases where the issue has been squarely presented. McGarvey v. Magee- becomes "viable," that is, potentially able to live outside the mother's womb, albeit
Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City Health with artificial aid. 59 Viability is usually placed at about seven months (28 weeks)
& Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. but may occur earlier, even at 24 weeks. 60 The Aristotelian theory of "mediate
72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72- animation," that held sway throughout the Middle Ages and the Renaissance in
730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers, Europe, continued to be official Roman Catholic dogma until the 19th century,
278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. despite opposition to this "ensoulment" theory from those in the Church who would
308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. recognize the existence of life from [410 U.S. 113, 161] the moment of
Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed, conception. 61 The latter is now, of course, the official belief of the Catholic Church.
our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the As one brief amicus discloses, this is a view strongly held by many non-Catholics as
same effect, for we there would not have indulged in statutory interpretation well, and by many physicians. Substantial problems for precise definition of this
favorable to abortion in specified circumstances if the necessary consequence was view are posed, however, by new embryological data that purport to indicate that
the termination of life entitled to Fourteenth Amendment protection. conception is a "process" over time, rather than an event, and by new medical
techniques such as menstrual extraction, the "morning-after" pill, implantation of
This conclusion, however, does not of itself fully answer the contentions raised by embryos, artificial insemination, and even artificial wombs. 62
Texas, and we pass on to other considerations.
In areas other than criminal abortion, the law has been reluctant to endorse any
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo theory that life, as we recognize it, begins before live birth or to accord legal rights to
and, later, a fetus, if one accepts the medical definitions of the developing young in the unborn except in narrowly defined situations and except when the rights are
the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th contingent upon live birth. For example, the traditional rule of tort law denied
ed. 1965). The situation therefore is inherently different from marital intimacy, or recovery for prenatal injuries even though the child was born alive. 63 That rule has
bedroom possession of obscene material, or marriage, or procreation, or education, been changed in almost every jurisdiction. In most States, recovery is said to be
with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and permitted only if the fetus was viable, or at least quick, when the injuries were
Meyer were respectively concerned. As we have intimated above, it is reasonable sustained, though few [410 U.S. 113, 162] courts have squarely so held. 64In a
and appropriate for a State to decide that at some point in time another interest, that recent development, generally opposed by the commentators, some States permit the
of health of the mother or that of potential human life, becomes significantly parents of a stillborn child to maintain an action for wrongful death because of
involved. The woman's privacy is no longer sole and any right of privacy she prenatal injuries. 65 Such an action, however, would appear to be one to vindicate
possesses must be measured accordingly. the parents' interest and is thus consistent with the view that the fetus, at most,
represents only the potentiality of life. Similarly, unborn children have been
Texas urges that, apart from the Fourteenth Amendment, life begins at conception recognized as acquiring rights or interests by way of inheritance or other devolution
and is present throughout pregnancy, and that, therefore, the State has a compelling of property, and have been represented by guardians ad litem. 66 Perfection of the
interest in protecting that life from and after conception. We need not resolve the interests involved, again, has generally been contingent upon live birth. In short, the
difficult question of when life begins. When those trained in the respective unborn have never been recognized in the law as persons in the whole sense.
disciplines of medicine, philosophy, and theology are unable to arrive at any
consensus, the judiciary, at this point in the development of man's knowledge, is not X
in a position to speculate as to the answer. [410 U.S. 113, 160]
In view of all this, we do not agree that, by adopting one theory of life, Texas may
override the rights of the pregnant woman that are at stake. We repeat, however, that
It should be sufficient to note briefly the wide divergence of thinking on this most
the State does have an important and legitimate interest in preserving and protecting
sensitive and difficult question. There has always been strong support for the view
the health of the pregnant woman, whether she be a resident of the State or a
that life does not begin until live birth. This was the belief of the Stoics. 56 It appears
nonresident who seeks medical consultation and treatment there, and that it has still
to be the predominant, though not the unanimous, attitude of the Jewish faith. 57 It
another important and legitimate interest in protecting the potentiality of human life.
may be taken to represent also the position of a large segment of the Protestant
These interests are separate and distinct. Each grows in substantiality as the woman
community, insofar as that can be ascertained; organized groups that have taken a
formal position on the abortion issue have generally regarded abortion as a matter for
approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each 1. A state criminal abortion statute of the current Texas type, that excepts from
becomes "compelling." criminality only a life-saving procedure on behalf of the mother, without regard to
pregnancy stage and without recognition of the other interests involved, is violative
With respect to the State's important and legitimate interest in the health of the of the Due Process Clause of the Fourteenth Amendment.
mother, the "compelling" point, in the light of present medical knowledge, is at
approximately the end of the first trimester. This is so because of the now- (a) For the stage prior to approximately the end of the first trimester, the abortion
established medical fact, referred to above at 149, that until the end of the first decision and its effectuation must be left to the medical judgment of the pregnant
trimester mortality in abortion may be less than mortality in normal childbirth. It woman's attending physician.
follows that, from and after this point, a State may regulate the abortion procedure to
the extent that the regulation reasonably relates to the preservation and protection of (b) For the stage subsequent to approximately the end of the first trimester, the State,
maternal health. Examples of permissible state regulation in this area are in promoting its interest in the health of the mother, may, if it chooses, regulate the
requirements as to the qualifications of the person who is to perform the abortion; as abortion procedure in ways that are reasonably related to maternal health.
to the licensure of that person; as to the facility in which the procedure is to be
performed, that is, whether it must be a hospital or may be a clinic or some other (c) For the stage subsequent to viability, the State in promoting its interest in the
place of less-than-hospital status; as to the licensing of the facility; and the like. potentiality of human life[410 U.S. 113, 165] may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate medical judgment, for
This means, on the other hand, that, for the period of pregnancy prior to this the preservation of the life or health of the mother.
"compelling" point, the attending physician, in consultation with his patient, is free
to determine, without regulation by the State, that, in his medical judgment, the 2. The State may define the term "physician," as it has been employed in the
patient's pregnancy should be terminated. If that decision is reached, the judgment preceding paragraphs of this Part XI of this opinion, to mean only a physician
may be effectuated by an abortion free of interference by the State. currently licensed by the State, and may proscribe any abortion by a person who is
not a physician as so defined.
With respect to the State's important and legitimate interest in potential life, the
"compelling" point is at viability. This is so because the fetus then presumably has In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the
the capability of meaningful life outside the mother's womb. State regulation modern abortion statutes are considered. That opinion and this one, of course, are to
protective of fetal life after viability thus has both logical and biological be read together. 67
justifications. If the State is interested in protecting fetal life after viability, it may go
so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when This holding, we feel, is consistent with the relative weights of the respective
it is necessary to preserve the life or health of the mother. interests involved, with the lessons and examples of medical and legal history, with
the lenity of the common law, and with the demands of the profound problems of the
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting present day. The decision leaves the State free to place increasing restrictions on
legal abortions to those "procured or attempted by medical advice for the purpose of abortion as the period of pregnancy lengthens, so long as those restrictions are
saving the life of the mother," sweeps too broadly. The statute makes no distinction tailored to the recognized state interests. The decision vindicates the right of the
between abortions performed early in pregnancy and those performed later, and it physician to administer medical treatment according to his professional judgment up
limits to a single reason, "saving" the mother's life, the legal justification for the to the points where important [410 U.S. 113, 166] state interests provide compelling
procedure. The statute, therefore, cannot survive the constitutional attack made upon justifications for intervention. Up to those points, the abortion decision in all its
it here. aspects is inherently, and primarily, a medical decision, and basic responsibility for it
must rest with the physician. If an individual practitioner abuses the privilege of
This conclusion makes it unnecessary for us to consider the additional challenge to exercising proper medical judgment, the usual remedies, judicial and intra-
the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 professional, are available.
U.S., at 67 -72.
XII
XI Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas
To summarize and to repeat: abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck
down separately, for then the State would be left with a statute proscribing all
abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short "Nothing in this chapter applies to an abortion procured or attempted by medical
of issuing an injunction against enforcement of the Texas statutes. The Court has advice for the purpose of saving the life of the mother."
recognized that different considerations enter into a federal court's decision as to The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of
declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. the Penal Code. Article 1195, not attacked here, reads:
Koota, 389 U.S. 241, 252 -255 (1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). "Art. 1195. Destroying unborn child
We are not dealing with a statute that, on its face, appears to abridge free expression, "Whoever shall during parturition of the mother destroy the vitality or life in a child
an area of particular concern under Dombrowski and refined in Younger v. in a state of being born and before actual birth, which child would otherwise have
Harris, 401 U.S., at 50 . been born alive, shall be confined in the penitentiary for life or for not less than five
years."
We find it unnecessary to decide whether the District Court erred in withholding [ Footnote 2 ] Ariz. Rev. Stat. Ann. 13-211 (1956); Conn. Pub. Act No. 1 (May 1972
injunctive relief, for we assume the Texas prosecutorial authorities will give full special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn. Gen. Stat. Rev. 53-29,
credence to this decision that the present criminal abortion statutes of that State are 53-30 (1968) (or unborn child); Idaho Code 18-601 (1948); Ill. Rev. Stat., c. 38, 23-1
unconstitutional. (1971); Ind. Code 35-1-58-1 (1971); Iowa Code 701.1 (1971); Ky. Rev. Stat.
436.020 (1962); La. Rev. Stat. 37:1285 (6) (1964) (loss of medical license) (but see
The judgment of the District Court as to intervenor Hallford is reversed, and Dr. 14:87 (Supp. 1972) containing no exception for the life of the mother under the
Hallford's complaint in intervention is dismissed. In all other respects, the criminal statute); Me. Rev. Stat. Ann., Tit. 17, 51 (1964); Mass. Gen. Laws Ann., c.
judgment [410 U.S. 113, 167] of the District Court is affirmed. Costs are allowed to 272, 19 (1970) (using the term "unlawfully," construed to exclude an abortion to
the appellee. save the mother's life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N. E. 2d 264
(1969)); Mich. Comp. Laws 750.14 (1948); Minn. Stat. 617.18 (1971); Mo. Rev.
It is so ordered. Stat. 559.100 (1969); Mont. Rev. Codes Ann. 94-401 (1969); Neb. Rev. Stat. 28-405
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.] (1964); Nev. Rev. Stat. 200.220 (1967); N. H. Rev. Stat. Ann. 585:13 (1955); N. J.
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.] Stat. Ann. 2A:87-1 (1969) ("without lawful justification"); N. D. Cent. Code 12-25-
01, 12-25-02 (1960); Ohio Rev. Code Ann. 2901.16 (1953); Okla. Stat. Ann., Tit. 21,
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.] 861 (1972-1973 Supp.); Pa. Stat. Ann., Tit. 18, [410 U.S. 113, 119] 4718, 4719
(1963) ("unlawful"); R. I. Gen. Laws Ann. 11-3-1 (1969); S. D. Comp. Laws Ann.
Footnotes 22-17-1 (1967); Tenn. Code Ann. 39-301, 39-302 (1956); Utah Code Ann. 76-2-1,
[ Footnote 1 ] "Article 1191. Abortion 76-2-2 (1953); Vt. Stat. Ann., Tit. 13, 101 (1958); W. Va. Code Ann. 61-2-8 (1966);
"If any person shall designedly administer to a pregnant woman or knowingly Wis. Stat. 940.04 (1969); Wyo. Stat. Ann. 6-77, 6-78 (1957).
procure to be administered with her consent any drug or medicine, or shall use
towards her any violence or means whatever externally or internally applied, and [ Footnote 3 ] Long ago, a suggestion was made that the Texas statutes were
thereby procure an abortion, he shall be confined in the penitentiary not less than two unconstitutionally vague because of definitional deficiencies. The Texas Court of
nor more than five years; if it be done without her consent, the punishment shall be Criminal Appeals disposed of that suggestion peremptorily, saying only,
doubled. By `abortion' is meant that the life of the fetus or embryo shall be destroyed
in the woman's womb or that a premature birth thereof be caused. "It is also insisted in the motion in arrest of judgment that the statute is
"Art. 1192. Furnishing the means unconstitutional and void in that it does not sufficiently define or describe the
"Whoever furnishes the means for procuring an abortion knowing the purpose offense of abortion. We do not concur in respect to this question." Jackson v. State,
intended is guilty as an accomplice. 55 Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
"Art. 1193. Attempt at abortion The same court recently has held again that the State's abortion statutes are not
"If the means used shall fail to produce an abortion, the offender is nevertheless unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim. App. Tex.
guilty of an attempt to produce abortion, provided [410 U.S. 113, 118] it be shown 1971), appeal docketed, No. 71-1200. The court held that "the State of Texas has a
that such means were calculated to produce that result, and shall be fined not less compelling interest to protect fetal life"; that Art. 1191 "is designed to protect fetal
than one hundred nor more than one thousand dollars. life"; that the Texas homicide statutes, particularly Art. 1205 of the Penal Code, are
"Art. 1194. Murder in producing abortion intended to protect a person "in existence by actual birth" and thereby implicitly
"If the death of the mother is occasioned by an abortion so produced or by an attempt recognize other human life that is not "in existence by actual birth"; that the
to effect the same it is murder." definition of human life is for the legislature and not the courts; that Art. 1196 "is
"Art. 1196. By medical advice more definite than the District of Columbia statute upheld in [United States v.]
Vuitch" ( 402 U.S. 62 ); and that the Texas statute "is [410 U.S. 113, 120] not [ Footnote 14 ] Id., at 154.
vague and indefinite or overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under [ Footnote 15 ] Edelstein 3.
the exemption of Art. 1196 "is not before us." But see Veevers v. State, 172 Tex. Cr.
R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United States v. Vuitch, 402 [ Footnote 16 ] Id., at 12, 15-18.
U.S. 62, 69 -71 (1971).
[ Footnote 17 ] Id., at 18; Lader 76.
[ Footnote 4 ] The name is a pseudonym.
[ Footnote 18 ] Edelstein 63.
[ Footnote 5 ] These names are pseudonyms.
[ Footnote 19 ] Id., at 64.
[ Footnote 6 ] The appellee twice states in his brief that the hearing before the
District Court was held on July 22, 1970. Brief for Appellee 13. The docket entries, [ Footnote 20 ] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
App. 2, and the transcript, App. 76, reveal this to be an error. The July date appears
to be the time of the reporter's transcription. See App. 77. [ Footnote 21 ] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31,
16 (4th ed. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the
[ Footnote 7 ] We need not consider what different result, if any, would follow if Dr. Crown 433 (1st Amer. ed. 1847). For discussions of the role of the quickening
Hallford's intervention were on behalf of a class. His complaint in intervention does concept in English common law, see Lader 78; Noonan 223-226; Means, The Law of
not purport to assert a class suit and makes no reference to any class apart from an New [410 U.S. 113, 133] York Concerning Abortion and the Status of the Foetus,
allegation that he "and others similarly situated" must necessarily guess at the 1664-1968: A Case of Cessation of Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-
meaning of Art. 1196. His application for leave to intervene goes somewhat further, 428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J. Crim.
for it asserts that plaintiff Roe does not adequately protect the interest of the doctor L. C. & P. S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.
"and the class of people who are physicians . . . [and] the class of people who are . . .
patients . . . ." The leave application, however, is not the complaint. Despite the [ Footnote 22 ] Early philosophers believed that the embryo or fetus did not become
District Court's statement to the contrary, 314 F. Supp., at 1225, we fail to perceive formed and begin to live until at least 40 days after conception for a male, and 80 to
the essentials of a class suit in the Hallford complaint. 90 days for a female. See, for example, Aristotle, Hist. Anim. 7.3.583b; Gen. Anim.
2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle's thinking derived
[ Footnote 8 ] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E. Krumbhaar, from his three-stage theory of life: vegetable, animal, rational. The vegetable stage
translator and editor (hereinafter Castiglioni). was reached at conception, the animal at "animation," and the rational soon after live
birth. This theory, together with the 40/80 day view, came to be accepted by early
[ Footnote 9 ] J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. Christian thinkers.
1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader); K.
Niswander, Medical Abortion Practices in the United States, in Abortion and the The theological debate was reflected in the writings of St. Augustine, who made a
Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and the distinction between embryo inanimatus, not yet endowed with a soul, and embryo
Criminal Law 148 (1957) (hereinafter Williams); J. Noonan, An Almost Absolute animatus. He may have drawn upon Exodus 21:22. At one point, however, he
Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970) expressed the view that human powers cannot determine the point during fetal
(hereinafter Noonan); Quay, Justifiable Abortion - Medical and Legal Foundations development at which the critical change occurs. See Augustine, De Origine Animae
(pt. 2), 49 Geo. L. J. 395, 406-422 (1961) (hereinafter Quay). 4.4 (Pub. Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2
and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ.
[ Footnote 10 ] L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). of America, Canon Law Studies No. 162, Washington, D.C., 1942).
But see Castiglioni 227.
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and
[ Footnote 11 ] Edelstein 12; Ricci 113-114, 118-119; Noonan 5. his followers. Quay 426-427. Later, Augustine on abortion was incorporated by
Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani
[ Footnote 12 ] Edelstein 13-14. 2.32.2.7 to 2.32.2.10, [410 U.S. 113, 134] in 1 Corpus Juris Canonici 1122, 1123
(A. Friedburg, 2d ed. 1879). This Decretal and the Decretals that followed were
[ Footnote 13 ] Castiglioni 148. recognized as the definitive body of canon law until the new Code of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20- [ Footnote 29 ] Conn. Stat., Tit. 20, 14 (1821).
26; Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment by
the Catholic Theologians and Canonists 18-29 (1965). [ Footnote 30 ] Conn. Pub. Acts, c. 71, 1 (1860).

[ Footnote 23 ] Bracton took the position that abortion by blow or poison was [ Footnote 31 ] N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6, 21, p.
homicide "if the foetus be already formed and animated, and particularly if it be 694 (1829).
animated." 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed.
1879), or, as a later translation puts it, "if the foetus is already formed or quickened, [ Footnote 32 ] Act of Jan. 20, 1840, 1, set forth in 2 H. Gammel, Laws of Texas
especially if it is quickened," 2 H. Bracton, On the Laws and Customs of England 177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S. W. 1124, 1125
341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1, c. 23) (1913).
(Selden Society ed. 1955).
[ Footnote 33 ] The early statutes are discussed in Quay 435-438. See also Lader 85-
[ Footnote 24 ] E. Coke, Institutes III *50. 88; Stern 85-86; and Means II 375-376.

[ Footnote 25 ] 1 W. Blackstone, Commentaries *129-130. [ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961, together
with historical statutory development and important judicial interpretations of the
[ Footnote 26 ] Means, The Phoenix of Abortional Freedom: Is a Penumbral or state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey of the
Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Present Statutory and Case Law on Abortion: The Contradictions and the Problems,
Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F. 335 (1971) 1972 U. Ill. L. F. 177, 179, classifying the abortion statutes and listing 25 States as
(hereinafter Means II). The author examines the two principal precedents cited permitting abortion only if necessary to save or preserve the mother's life.
marginally by Coke, both contrary to his dictum, and traces the treatment of these
and other cases by earlier commentators. He concludes that Coke, who himself [ Footnote 35 ] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
participated as an advocate in an abortion case in 1601, may have intentionally
misstated the law. The author even suggests a reason: Coke's strong feelings against [ Footnote 36 ] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann. 2A:87-1
abortion, coupled with his determination to assert common-law (secular) jurisdiction (1969); Pa. Stat. Ann., Tit. 18, 4718, 4719 (1963).
to assess penalties for an offense that traditionally had been an exclusively
ecclesiastical or canon-law crime. See also Lader 78-79, who notes that some [ Footnote 37 ] Fourteen States have adopted some form of the ALI statute. See Ark.
scholars doubt that the common law ever was applied to abortion; that the English Stat. Ann. 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code 25950-
ecclesiastical courts seem to have lost interest in the problem after 1527; and that the 25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53 (Cum. Supp. 1967);
preamble to the English legislation of 1803, 43 Geo. 3, c. 58, 1, referred to in the Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c.
text, infra, at 136, states that "no adequate means have been hitherto provided for the 72-196, 1972 Fla. Sess. Law Serv., pp. 380-382; Ga. Code 26-1201 to 26-1203
prevention and punishment of such offenses." (1972); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, 137-139
(1971); Miss. Code Ann. 2223 (Supp. 1972); N. M. Stat. Ann. 40A-5-1 to 40A-5-3
[ Footnote 27 ] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth (1972); N.C. Gen. Stat. 14-45.1 (Supp. 1971); Ore. Rev. Stat. 435.405 to 435.495
v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N. J. L. 52, (1971); S. C. Code Ann. 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann.
58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of these States
45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, as having "led the way." Religion, Morality, and Abortion: A Constitutional
40 Fla. [410 U.S. 113, 136] 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 (1969).
Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.
W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338 By the end of 1970, four other States had repealed criminal penalties for abortions
(1915); Miller v. Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221 (1949). Contra, performed in early pregnancy by a licensed physician, subject to stated procedural
Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632 and health requirements. Alaska Stat. 11.15.060 (1970); Haw. Rev. Stat. 453-16
(1880). (Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp. 1972-1973); Wash. Rev.
Code 9.02.060 to 9.02.080 (Supp. 1972). The precise status of criminal abortion laws
[ Footnote 28 ] See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N. Y. in some States is made unclear by recent decisions in state and federal courts striking
86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887). down existing state laws, in whole or in part.
[ Footnote 38 ] "Whereas, Abortion, like any other medical procedure, should not be pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age
performed when contrary to the best interests of the patient [410 U.S. 113, of 16 years].
144] since good medical practice requires due consideration for the patient's welfare "SECTION 2. [Penalty.] Any person who performs or procures an abortion other
and not mere acquiescence to the patient's demand; and than authorized by this Act is guilty of a [felony] and, upon conviction thereof, may
be sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in the state
"Whereas, The standards of sound clinical judgment, which, together with informed penitentiary] not exceeding [5 years], or both.
patient consent should be determinative according to the merits of each individual "SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to
case; therefore be it effectuate its general purpose to make uniform the law with respect to the subject of
"RESOLVED, That abortion is a medical procedure and should be performed only this Act among those states which enact it.
by a duly licensed physician and surgeon in an accredited hospital acting only after "SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
consultation with two other physicians chosen because of their professional "SECTION 5. [Severability.] If any provision of this Act or the application thereof to
competency and in conformance with standards of good medical practice and the any person or circumstance is held invalid, the invalidity does not affect other
Medical Practice Act of his State; and be it further provisions or applications of this Act which can be given effect without the invalid
"RESOLVED, That no physician or other professional personnel shall be compelled provision or application, and to this end the provisions of this Act are severable.
to perform any act which violates his good medical judgment. Neither physician, "SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "(1) "(2)
hospital, nor hospital personnel shall be required to perform any act violative of "(3)
personally-held moral principles. In these circumstances good medical practice "SECTION 7. [Time of Taking Effect.] This Act shall take effect
requires only that the physician or other professional personnel withdraw from the ________________."
case so long as the withdrawal is consistent with good medical practice." [ Footnote 41 ] "This Act is based largely upon the New York abortion act following
Proceedings of the AMA House of Delegates 220 (June 1970). a review of the more recent laws on abortion in several states and upon recognition
[ Footnote 39 ] "The Principles of Medical Ethics of the AMA do not prohibit a of a more liberal trend in laws on this subject. Recognition was given also to the
physician from performing an abortion that is performed in accordance with good several decisions in state and federal courts which show a further trend toward
medical practice and under circumstances that do not violate the laws of the liberalization of abortion laws, especially during the first trimester of pregnancy.
community in which he practices.
"Recognizing that a number of problems appeared in New York, a shorter time
"In the matter of abortions, as of any other medical procedure, the Judicial Council period for `unlimited' abortions was advisable. The [410 U.S. 113, 148] time period
becomes involved whenever there is alleged violation of the Principles of Medical was bracketed to permit the various states to insert a figure more in keeping with the
Ethics as established by the House of Delegates." different conditions that might exist among the states. Likewise, the language
[ Footnote 40 ] "UNIFORM ABORTION ACT limiting the place or places in which abortions may be performed was also bracketed
to account for different conditions among the states. In addition, limitations on
"SECTION 1. [Abortion Defined; When Authorized.] abortions after the initial `unlimited' period were placed in brackets so that individual
"(a) `Abortion' means the termination of human pregnancy with an intention other states may adopt all or any of these reasons, or place further restrictions upon
than to produce a live birth or to remove a dead fetus. abortions after the initial period.
"(b) An abortion may be performed in this state only if it is performed: "This Act does not contain any provision relating to medical review committees or
"(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a prohibitions against sanctions imposed upon medical personnel refusing to
physician practicing medicine [or osteopathy] in the employ of the government of participate in abortions because of religious or other similar reasons, or the like. Such
the United States or of this state, [and the abortion is performed [in the physician's provisions, while related, do not directly pertain to when, where, or by whom
office or in a medical clinic, or] in a hospital approved by the [Department of Health] abortions may be performed; however, the Act is not drafted to exclude such a
or operated by the United States, this state, or any department, agency, or political provision by a state wishing to enact the same."
subdivision of either;] or by a female upon herself upon the advice of the physician; [ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074 (N. J.
and 1972); Abele v. Markle, 342 F. Supp. 800, 805-806 (Conn. 1972) (Newman, J.,
"(2) within 20. weeks after the commencement of the pregnancy [or after 20. weeks concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250 So.2d
only if the physician has reasonable cause to believe (i) there is a substantial risk that 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J. L. 86, 90
continuance of the pregnancy would endanger the life of the mother or would (1881); Means II 381-382.
gravely impair the physical or mental health of the mother, (ii) that the child would
be born with grave physical or mental defect, or (iii) that [410 U.S. 113, 147] the [ Footnote 43 ] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19
(1943).
[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, process of law, and if the mother's condition is the sole determinant, does not the
967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity and Mortality Texas exception appear to be out of line with the Amendment's command?
208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York
City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family There are other inconsistencies between Fourteenth Amendment status and the
Planning 5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion, 45 typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas
Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze & the woman is not a principal or an accomplice with respect to an abortion upon her.
Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (April If the fetus is a person, why is the woman not a principal or an accomplice? Further,
1961). Other sources are discussed in Lader 17-23. the penalty for criminal abortion specified by Art. 1195 is significantly less than the
maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If
[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R. Drinan, the fetus is a person, may the penalties be different?
The Inviolability of the Right to be Born, in Abortion and the Law 107 (D. Smith ed.
1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 [ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to mean
U. C. L. A. L. Rev. 233 (1969); Noonan 1. "a human being from the time of conception until it is born alive," Wis. Stat. 940.04
(6) (1969), and the new Connecticut Statute, Pub. Act No. 1 (May 1972 special
[ Footnote 46 ] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal session), declaring it to be the public policy of the State and the legislative intent "to
docketed, No. 72-56. protect and preserve human life from the moment of conception."

[ Footnote 47 ] See discussions in Means I and Means II. [ Footnote 56 ] Edelstein 16.

[ Footnote 48 ] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858). [ Footnote 57 ] Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294
(1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion
[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State, and the Law 124 (D. Smith ed. 1967).
37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290 (1897); Shaw v. State, 73 Tex. Cr. R.
337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex. Cr. R. 552, 557, 169 [ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the position
S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178 S. W. 337, 341 of the National Council of Churches and of other denominations, see Lader 99-101.
(1915). There is no immunity in Texas for the father who is not married to the
mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919); Thompson v. [ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971);
State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200. Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).

[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A. [ Footnote 60 ] Hellman & Pritchard, supra, n. 59, at 493.
2d 141, 144 (1949). A short discussion of the modern law on this issue is contained
in the Comment to the ALI's Model Penal Code 207.11, at 158 and nn. 35-37 (Tent. [ Footnote 61 ] For discussions of the development of the Roman Catholic position,
Draft No. 9, 1959). see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.

[ Footnote 51 ] Tr. of Oral Rearg. 20-21. [ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J. Family L.
391, 397 (1970); Gorney, The New Biology and the Future of Man, 15 U. C. L. A. L.
[ Footnote 52 ] Tr. of Oral Rearg. 24. Rev. 273 (1968); Note, Criminal Law - Abortion - The "Morning-After Pill" and
Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L. Rev. 211
[ Footnote 53 ] We are not aware that in the taking of any census under this clause, a (1967); G. Taylor, The Biological Time Bomb 32 (1968); A. Rosenfeld, The Second
fetus has ever been counted. Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial Insemination
and the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial Insemination and the
[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth Amendment Law, 1968 U. Ill. L. F. 203.
protection as a person, it faces a dilemma. Neither in Texas nor in any other State are
all abortions prohibited. Despite broad proscription, an exception always exists. The [ Footnote 63 ] W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper &
exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion procured or F. James, The Law of Torts 1028-1031 (1956); Note, 63 Harv. L. Rev. 173 (1949).
attempted by medical advice for the purpose of saving the life of the mother, is
typical. But if the fetus is a person who is not to be deprived of life without due
[ Footnote 64 ] See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Constitution nowhere mentions a specific right of personal choice in matters of
Action for Death of Unborn Child, 15 A. L. R. 3d 992 (1967). marriage and family life, but the "liberty" protected by the Due Process Clause of the
Fourteenth Amendment covers more than those freedoms explicitly named in the Bill
[ Footnote 65 ] Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -239; Pierce
The Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971). v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390,
399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v.
[ Footnote 66 ] Louisell, Abortion, The Practice of Medicine and the Due Process of Guest,383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v.
Law, 16 U. C. L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L. Rev. 994, 999- Secretary of State, 378 U.S. 500, 505; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v.
1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351- Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 .[410 U.S. 113,
354 (1971). 169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the
[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we Due Process Clause cannot be found in or limited by the precise terms of the specific
discuss the father's rights, if any exist in the constitutional context, in the abortion guarantees elsewhere provided in the Constitution. This `liberty' is not a series of
decision. No paternal right has been asserted in either of the cases, and the Texas and isolated points pricked out in terms of the taking of property; the freedom of speech,
the Georgia statutes on their face take no cognizance of the father. We are aware that press, and religion; the right to keep and bear arms; the freedom from unreasonable
some statutes recognize the father under certain circumstances. North Carolina, for searches and seizures; and so on. It is a rational continuum which, broadly speaking,
example, N.C. Gen. Stat. 14-45.1 (Supp. 1971), requires written permission for the includes a freedom from all substantial arbitrary impositions and purposeless
abortion from the husband when the woman is a married minor, that is, when she is restraints . . . and which also recognizes, what a reasonable and sensitive judgment
less than 18 years of age, 41 N.C. A. G. 489 (1971); if the woman is an unmarried must, that certain interests require particularly careful scrutiny of the state needs
minor, written permission from the parents is required. We need not now decide asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion
whether provisions of this kind are constitutional. dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice
Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather
MR. JUSTICE STEWART, concurring. meaning from experience. For they relate to the whole domain of social and
economic fact, and the statesmen who founded this Nation knew too well that only a
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater
death knell for the doctrine of substantive due process, a doctrine under which many Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Several decisions of this Court make clear that freedom of personal choice in matters
Justice Black's opinion for the Court in Skrupa put it: "We have returned to the of marriage and family life is one of the liberties protected by the Due Process
original constitutional proposition that courts do not substitute their social and Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold
economic beliefs for the judgment of legislative bodies, who are elected to pass v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra.
laws." Id., at 730. 1 See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316
U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 ,
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a we recognized "the right of the individual, married or single, to be free from
Connecticut birth control law unconstitutional. In view of what had been so recently unwarranted governmental intrusion into matters so fundamentally affecting a
said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid person [410 U.S. 113, 170] as the decision whether to bear or beget a child." That
reliance on the Due Process Clause of the Fourteenth Amendment as the ground for right necessarily includes the right of a woman to decide whether or not to terminate
decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, her pregnancy. "Certainly the interests of a woman in giving of her physical and
nor any other specific provision of the Constitution. 2 So it was clear [410 U.S. 113, emotional self during pregnancy and the interests that will be affected throughout her
168] to me then, and it is equally clear to me now, that the Griswold decision can be life by the birth and raising of a child are of a far greater degree of significance and
rationally understood only as a holding that the Connecticut statute substantively personal intimacy than the right to send a child to private school protected in Pierce
invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language
Amendment.3 As so understood, Griswold stands as one in a long line of pre-Skrupa protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F.
cases decided under the doctrine of substantive due process, and I now accept it as Supp. 224, 227 (Conn. 1972).
such.

"In a Constitution for a free people, there can be no doubt that the meaning of
`liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 . The
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane I
Roe is embraced within the personal liberty protected by the Due Process Clause of
The Court's opinion decides that a State may impose virtually no restriction on the
the Fourteenth Amendment.
performance of abortions during the first trimester of pregnancy. Our previous
decisions indicate that a necessary predicate for such an opinion is a plaintiff who
It is evident that the Texas abortion statute infringes that right directly. Indeed, it is
was in her first trimester of pregnancy at some time during the pendency of her law-
difficult to imagine a more complete abridgment of a constitutional freedom than
suit. While a party may vindicate his own constitutional rights, he may not seek
that worked by the inflexible criminal statute now in force in Texas. The question
vindication for the rights of others. Moose Lodge v. Irvis, 407 U.S. 163 (1972);
then becomes whether the state interests advanced to justify this abridgment can
Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this
survive the "particularly careful scrutiny" that the Fourteenth Amendment here
case makes clear, however, that the record in no way indicates the presence of such a
requires.
plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a
pregnant woman; for aught that appears in this record, she may have been in her last
The asserted state interests are protection of the health and safety of the pregnant
trimester of pregnancy as of the date the complaint was filed.
woman, and protection of the potential future human life within her. These are
legitimate objectives, amply sufficient to permit a State to regulate abortions as it
Nothing in the Court's opinion indicates that Texas might not constitutionally apply
does other surgical procedures, and perhaps sufficient to permit a State to regulate
its proscription of abortion as written to a woman in that stage of pregnancy.
abortions more stringently or even to prohibit them in the late stages of pregnancy.
Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for
But such legislation is not before us, and I think the Court today has thoroughly
deciding that States may [410 U.S. 113, 172] impose virtually no restrictions on
demonstrated that these state interests cannot constitutionally support the broad
medical abortions performed during the first trimester of pregnancy. In deciding such
abridgment of personal [410 U.S. 113, 171] liberty worked by the existing Texas
a hypothetical lawsuit, the Court departs from the longstanding admonition that it
law. Accordingly, I join the Court's opinion holding that that law is invalid under the
should never "formulate a rule of constitutional law broader than is required by the
Due Process Clause of the Fourteenth Amendment.
precise facts to which it is to be applied." Liverpool, New York & Philadelphia S. S.
Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). See also Ashwander v.
[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at
TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).
733 .

[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The Fourth] II


Amendment protects individual privacy against certain kinds of governmental Even if there were a plaintiff in this case capable of litigating the issue which the
intrusion, but its protections go further, and often have nothing to do with privacy at Court decides, I would reach a conclusion opposite to that reached by the Court. I
all. Other provisions of [410 U.S. 113, 168] the Constitution protect personal have difficulty in concluding, as the Court does, that the right of "privacy" is
privacy from other forms of governmental invasion. But the protection of a person's involved in this case. Texas, by the statute here challenged, bars the performance of a
general right to privacy - his right to be let alone by other people - is, like the medical abortion by a licensed physician on a plaintiff such as Roe. A transaction
protection of his property and of his very life, left largely to the law of the individual resulting in an operation such as this is not "private" in the ordinary usage of that
States." Katz v. United States, 389 U.S. 347, 350 -351 (footnotes omitted). word. Nor is the "privacy" that the Court finds here even a distant relative of the
freedom from searches and seizures protected by the Fourth Amendment to the
[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting Constitution, which the Court has referred to as embodying a right to privacy. Katz
opinion); to Mr. Justice Harlan, 381 U.S., at 499 (opinion concurring in the v. United States, 389 U.S. 347 (1967).
judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502(opinion concurring in
the judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion If the Court means by the term "privacy" no more than that the claim of a person to
dissenting from dismissal of the appeal in Poe v. Ullman, 367 U.S. 497, 522 . be free from unwanted state regulation of consensual transactions may be a form of
"liberty" protected by the Fourteenth Amendment, there is no doubt that similar
MR. JUSTICE REHNQUIST, dissenting. claims have been upheld in our earlier decisions on the basis of that liberty. I agree
with the statement of MR. JUSTICE STEWART in his concurring opinion that the
The Court's opinion brings to the decision of this troubling question both extensive "liberty," against deprivation of which without due process the Fourteenth [410 U.S.
historical fact and a wealth of legal scholarship. While the opinion thus commands 113, 173] Amendment protects, embraces more than the rights found in the Bill of
my respect, I find myself nonetheless in fundamental disagreement with those parts Rights. But that liberty is not guaranteed absolutely against deprivation, only against
of it that invalidate the Texas statute in question, and therefore dissent. deprivation without due process of law. The test traditionally applied in the area of
social and economic legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. abortion. 1 While many States have amended or updated[410 U.S. 113, 176] their
483, 491 (1955). The Due Process Clause of the Fourteenth Amendment laws, 21 of the laws on the books in 1868 remain in effect today. 2 Indeed, the Texas
undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S.
such as this. If the Texas statute were to prohibit an abortion even where the mother's 113, 177] and "has remained substantially unchanged to the present time." Ante, at
life is in jeopardy, I have little doubt that such a statute would lack a rational relation 119.
to a valid state objective under the test stated in Williamson, supra. But the Court's
sweeping invalidation of any restrictions on abortion during the first trimester is There apparently was no question concerning the validity of this provision or of any
impossible to justify under that standard, and the conscious weighing of competing of the other state statutes when the Fourteenth Amendment was adopted. The only
factors that the Court's opinion apparently substitutes for the established test is far conclusion possible from this history is that the drafters did not intend to have the
more appropriate to a legislative judgment than to a judicial one. Fourteenth Amendment withdraw from the States the power to legislate with respect
to this matter.
The Court eschews the history of the Fourteenth Amendment in its reliance on the
"compelling state interest" test. See Weber v. Aetna Casualty & Surety Co., 406 U.S. III
164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to this test
Even if one were to agree that the case that the Court decides were here, and that the
by transposing it from the legal considerations associated with the Equal Protection
enunciation of the substantive constitutional law in the Court's opinion were proper,
Clause of the Fourteenth Amendment to this case arising under the Due Process
the actual disposition of the case by the Court is still difficult to justify. The Texas
Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of
statute is struck down in toto, even though the Court apparently concedes that at later
this transplanting of the "compelling state interest test," the Court's opinion will
periods of pregnancy Texas might impose these selfsame statutory limitations on
accomplish the seemingly impossible feat of leaving this area of the law more
abortion. My understanding of past practice is that a statute found [410 U.S. 113,
confused than it found it. [410 U.S. 113, 174]
178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a
whole, is not simply "struck down" but is, instead, declared unconstitutional as
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner
applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.S.
v. New York, 198 U.S. 45, 74 (1905), the result it reaches is more closely attuned to
356(1886); Street v. New York, 394 U.S. 576 (1969).
the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar
cases applying substantive due process standards to economic and social welfare
For all of the foregoing reasons, I respectfully dissent.
legislation, the adoption of the compelling state interest standard will inevitably
require this Court to examine the legislative policies and pass on the wisdom of these
policies in the very process of deciding whether a particular state interest put forward
may or may not be "compelling." The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may impose in each
one, for example, partakes more of judicial legislation than it does of a determination
of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in
those States, have had restrictions on abortions for at least a century is a strong
indication, it seems to me, that the asserted right to an abortion is not "so rooted in
the traditions and conscience of our people as to be ranked as fundamental," Snyder
v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society's views on
abortion are changing, the very existence of the debate is evidence that the "right" to
an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the
Fourteenth Amendment a right that was apparently completely unknown to the
drafters of the Amendment. As early as 1821, the first state law dealing directly with
abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By
the time of the adoption of the Fourteenth [410 U.S. 113, 175] Amendment in 1868,
there were at least 36 laws enacted by state or territorial legislatures limiting
In her petition, she alleged that she was born on January 13,
1981 and was registered as a female in the Certificate of Live Birth but
SECOND DIVISION
while growing up, she developed secondary male characteristics and
was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which
REPUBLIC OF THE PHILIPPINES, G.R. No. 166676
is a condition where persons thus afflicted possess both male and female
Petitioner,
characteristics. She further alleged that she was diagnosed to have
Present: clitoral hyperthropy in her early years and at age six, underwent an
ultrasound where it was discovered that she has small ovaries. At age
QUISUMBING, J., Chairperson, thirteen, tests revealed that her ovarian structures had minimized, she
- versus - CARPIO MORALES, has stopped growing and she has no breast or menstrual development.
TINGA, She then alleged that for all interests and appearances as well as in mind
VELASCO, JR.,and and emotion, she has become a male person. Thus, she prayed that her
BRION, JJ. birth certificate be corrected such that her gender be changed from
female to male and her first name be changed from Jennifer to Jeff.
JENNIFER B. CAGANDAHAN, Promulgated:
Respondent. The petition was published in a newspaper of general circulation
September 12, 2008 for three (3) consecutive weeks and was posted in conspicuous places
by the sheriff of the court. The Solicitor General entered his appearance
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x and authorized the Assistant Provincial Prosecutor to appear in his
behalf.
DECISION
QUISUMBING, J.: To prove her claim, respondent testified and presented the
testimony of Dr. Michael Sionzon of the Department of Psychiatry,
University of the Philippines-Philippine General Hospital. Dr. Sionzon
This is a petition for review under Rule 45 of the Rules of Court issued a medical certificate stating that respondents condition is known
raising purely questions of law and seeking a reversal of the as CAH. He explained that genetically respondent is female but because
Decision[1] dated January 12, 2005 of the Regional Trial Court her body secretes male hormones, her female organs did not develop
(RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for normally and she has two sex organs female and male. He testified that
Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan this condition is very rare, that respondents uterus is not fully developed
and ordered the following changes of entries in Cagandahans birth because of lack of female hormones, and that she has no monthly
certificate: (1) the name Jennifer Cagandahan changed to Jeff period. He further testified that respondents condition is permanent and
Cagandahan and (2) gender from female to male. recommended the change of gender because respondent has made up
her mind, adjusted to her chosen role as male, and the gender change
The facts are as follows. would be advantageous to her.

On December 11, 2003, respondent Jennifer Cagandahan filed a The RTC granted respondents petition in a Decision
Petition for Correction of Entries in Birth Certificate[2] before the RTC, dated January 12, 2005 which reads:
Branch 33 of Siniloan, Laguna.
The Court is convinced that petitioner has THE REQUIREMENTS OF RULES 103 AND 108 OF
satisfactorily shown that he is entitled to the reliefs THE RULES OF COURT HAVE NOT BEEN
prayed [for]. Petitioner has adequately presented to the COMPLIED WITH; AND,
Court very clear and convincing proofs for the granting
of his petition. It was medically proven that petitioners II.
body produces male hormones, and first his body as well CORRECTION OF ENTRY UNDER RULE 108 DOES
as his action and feelings are that of a male. He has NOT ALLOW CHANGE OF SEX OR GENDER IN
chosen to be male. He is a normal person and wants to THE BIRTH CERTIFICATE, WHILE RESPONDENTS
be acknowledged and identified as a male. MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER
WHEREFORE, premises considered, the Civil A MALE.[4]
Register of Pakil, Laguna is hereby ordered to make the
following corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees: Simply stated, the issue is whether the trial court erred in
ordering the correction of entries in the birth certificate of respondent to
a) By changing the name from Jennifer change her sex or gender, from female to male, on the ground of her
Cagandahan to JEFF CAGANDAHAN; and medical condition known as CAH, and her name from Jennifer to Jeff,
under Rules 103 and 108 of the Rules of Court.
b) By changing the gender from female
to MALE.
The OSG contends that the petition below is fatally defective for
It is likewise ordered that petitioners school non-compliance with Rules 103 and 108 of the Rules of Court because
records, voters registry, baptismal certificate, and other while the local civil registrar is an indispensable party in a petition for
pertinent records are hereby amended to conform with cancellation or correction of entries under Section 3, Rule 108 of the
the foregoing corrected data. Rules of Court, respondents petition before the court a quo did not
implead the local civil registrar.[5] The OSG further contends
SO ORDERED.[3] respondents petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province where the petition was
filed for at least three (3) years prior to the date of such filing as
Thus, this petition by the Office of the Solicitor General (OSG) mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The
seeking a reversal of the abovementioned ruling. OSG argues that Rule 108 does not allow change of sex or gender in the
birth certificate and respondents claimed medical condition known as
The issues raised by petitioner are: CAH does not make her a male.[7]

THE TRIAL COURT ERRED IN GRANTING THE On the other hand, respondent counters that although the Local
PETITION CONSIDERING THAT: Civil Registrar of Pakil, Laguna was not formally named a party in the
I. Petition for Correction of Birth Certificate, nonetheless the Local Civil
Registrar was furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or processes in the course
of the proceedings,[8] respondent is actually a male person and hence his of general circulation published in the province, as the
birth certificate has to be corrected to reflect his true court shall deem best. The date set for the hearing shall
sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and not be within thirty (30) days prior to an election nor
respondent substantially complied with the requirements of Rules 103 within four (4) months after the last publication of the
and 108 of the Rules of Court.[11] notice.

Rules 103 and 108 of the Rules of Court provide: SEC. 4. Hearing. Any interested person may appear at
the hearing and oppose the petition. The Solicitor
General or the proper provincial or city fiscal shall
appear on behalf of the Government of the Republic.
Rule 103
SEC. 5. Judgment. Upon satisfactory proof in open court
CHANGE OF NAME
on the date fixed in the order that such order has been
SECTION 1. Venue. A person desiring to change his published as directed and that the allegations of the
name shall present the petition to the Regional Trial petition are true, the court shall, if proper and reasonable
Court of the province in which he resides, [or, in the City cause appears for changing the name of the petitioner,
of Manila, to the Juvenile and Domestic Relations adjudge that such name be changed in accordance with
Court]. the prayer of the petition.

SEC. 2. Contents of petition. A petition for change of SEC. 6. Service of judgment. Judgments or orders
name shall be signed and verified by the person desiring rendered in connection with this rule shall be furnished
his name changed, or some other person on his behalf, the civil registrar of the municipality or city where the
and shall set forth: court issuing the same is situated, who shall forthwith
enter the same in the civil register.
(a) That the petitioner has been a bona
fide resident of the province where the petition is Rule 108
filed for at least three (3) years prior to the date CANCELLATION OR CORRECTION OF
of such filing; ENTRIES
IN THE CIVIL REGISTRY
(b) The cause for which the change of the
petitioner's name is sought; SECTION 1. Who may file petition. Any person
interested in any act, event, order or decree concerning
(c) The name asked for. the civil status of persons which has been recorded in the
civil register, may file a verified petition for the
SEC. 3. Order for hearing. If the petition filed is cancellation or correction of any entry relating thereto,
sufficient in form and substance, the court, by an order with the Regional Trial Court of the province where the
reciting the purpose of the petition, shall fix a date and corresponding civil registry is located.
place for the hearing thereof, and shall direct that a copy
of the order be published before the hearing at least once SEC. 2. Entries subject to cancellation or correction.
a week for three (3) successive weeks in some newspaper Upon good and valid grounds, the following entries in
the civil register may be cancelled or corrected: (a) certified copy of the judgment shall be served upon the
births; (b) marriages; (c) deaths; (d) legal separations; (e) civil registrar concerned who shall annotate the same in
judgments of annulments of marriage; (f) judgments his record.
declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or The OSG argues that the petition below is fatally defective for
recovery of citizenship; (l) civil interdiction; (m) judicial non-compliance with Rules 103 and 108 of the Rules of Court because
determination of filiation; (n) voluntary emancipation of respondents petition did not implead the local civil registrar. Section 3,
a minor; and (o) changes of name. Rule 108 provides that the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made parties
SEC. 3. Parties. When cancellation or correction of an to the proceedings. Likewise, the local civil registrar is required to be
entry in the civil register is sought, the civil registrar and made a party in a proceeding for the correction of name in the civil
all persons who have or claim any interest which would registry. He is an indispensable party without whom no final
be affected thereby shall be made parties to the determination of the case can be had.[12] Unless all possible
proceeding. indispensable parties were duly notified of the proceedings, the same
shall be considered as falling much too short of the requirements of the
SEC. 4. Notice and publication. Upon the filing of the rules.[13] The corresponding petition should also implead as respondents
petition, the court shall, by an order, fix the time and the civil registrar and all other persons who may have or may claim to
place for the hearing of the same, and cause reasonable have any interest that would be affected thereby.[14] Respondent,
notice thereof to be given to the persons named in the however, invokes Section 6,[15] Rule 1 of the Rules of Court which states
petition. The court shall also cause the order to be that courts shall construe the Rules liberally to promote their objectives
published once a week for three (3) consecutive weeks of securing to the parties a just, speedy and inexpensive disposition of
in a newspaper of general circulation in the province. the matters brought before it. We agree that there is substantial
compliance with Rule 108 when respondent furnished a copy of the
SEC. 5. Opposition. The civil registrar and any person petition to the local civil registrar.
having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen
The determination of a persons sex appearing in his birth
(15) days from notice of the petition, or from the last date
certificate is a legal issue and the court must look to the statutes. In
of publication of such notice, file his opposition thereto.
this connection, Article 412 of the Civil Code provides:
SEC. 6. Expediting proceedings. The court in which the
proceedings is brought may make orders expediting the ART. 412. No entry in a civil register shall be changed or
proceedings, and may also grant preliminary injunction corrected without a judicial order.
for the preservation of the rights of the parties pending
such proceedings.
Together with Article 376[16] of the Civil Code, this provision was
SEC. 7. Order. After hearing, the court may either amended by Republic Act No. 9048[17] in so far as clerical or
dismiss the petition or issue an order granting the typographical errors are involved. The correction or change of such
cancellation or correction prayed for. In either case, a matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, Rep. Act No. 9048 respondent, with this condition produces too much androgen, a male
removed from the ambit of Rule 108 of the Rules of Court the hormone. A newborn who has XX chromosomes coupled with CAH
correction of such errors. Rule 108 now applies only to substantial usually has a (1) swollen clitoris with the urethral opening at the base,
changes and corrections in entries in the civil register.[18] an ambiguous genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive tract such as the
ovaries, uterus and fallopian tubes; as the child grows older, some
Under Rep. Act No. 9048, a correction in the civil registry features start to appear male, such as deepening of the voice, facial hair,
involving the change of sex is not a mere clerical or typographical error. and failure to menstruate at puberty. About 1 in 10,000 to 18,000
It is a substantial change for which the applicable procedure is Rule 108 children are born with CAH.
of the Rules of Court.[19]
CAH is one of many conditions[21] that
The entries envisaged in Article 412 of the Civil Code and involve intersex anatomy. During the twentieth century, medicine
correctable under Rule 108 of the Rules of Court are those provided in adopted the term intersexuality to apply to human beings who cannot be
Articles 407 and 408 of the Civil Code: classified as either male or female.[22] The term is now of widespread
use. According to Wikipedia, intersexuality is the state of a living thing
ART. 407. Acts, events and judicial decrees concerning of a gonochoristic species whose sex chromosomes, genitalia, and/or
the civil status of persons shall be recorded in the civil secondary sex characteristics are determined to be neither exclusively
register. male nor female. An organism with intersex may have biological
characteristics of both male and female sexes.
ART. 408. The following shall be entered in the civil
register: Intersex individuals are treated in different ways by different
cultures. In most societies, intersex individuals have been expected to
(1) Births; (2) marriages; (3) deaths; (4) legal conform to either a male or female gender role.[23] Since the rise of
separations; (5) annulments of marriage; (6) judgments modern medical science in Western societies, some intersex people with
declaring marriages void from the beginning; (7) ambiguous external genitalia have had their genitalia surgically
legitimations; (8) adoptions; (9) acknowledgments of modified to resemble either male or female genitals.[24]More commonly,
natural children; (10) naturalization; (11) loss, or (12) an intersex individual is considered as suffering from a disorder which
recovery of citizenship; (13) civil interdiction; (14) is almost always recommended to be treated, whether by surgery and/or
judicial determination of filiation; (15) voluntary by taking lifetime medication in order to mold the individual as neatly
as possible into the category of either male or female.
emancipation of a minor; and(16) changes of name.

In deciding this case, we consider the compassionate calls for


The acts, events or factual errors contemplated under Article recognition of the various degrees of intersex as variations which should
407 of the Civil Code include even those that occur after birth.[20] not be subject to outright denial. It has been suggested that there is some
middle ground between the sexes, a no-mans land for those individuals
Respondent undisputedly has CAH. This condition causes the who are neither truly male nor truly female.[25] The current state of
early or inappropriate appearance of male characteristics. A person, like Philippine statutes apparently compels that a person be classified either
as a male or as a female, but this Court is not controlled by mere
appearances when nature itself fundamentally negates such rigid In the absence of a law on the matter, the Court will not dictate
classification. on respondent concerning a matter so innately private as ones sexuality
and lifestyle preferences, much less on whether or not to undergo
In the instant case, if we determine respondent to be a female, medical treatment to reverse the male tendency due to CAH. The Court
then there is no basis for a change in the birth certificate entry for will not consider respondent as having erred in not choosing to undergo
gender. But if we determine, based on medical testimony and scientific treatment in order to become or remain as a female. Neither will the
development Court force respondent to undergo treatment and to take medication in
showing the respondent to be other than female, then a change in the order to fit the mold of a female, as society commonly currently knows
this gender of the human species. Respondent is the one who has to live
with his intersex anatomy. To him belongs the human right to the pursuit
subjects birth certificate entry is in order. of happiness and of health. Thus, to him should belong the primordial
choice of what courses of action to take along the path of his sexual
Biologically, nature endowed respondent with a mixed (neither development and maturation. In the absence of evidence that respondent
consistently and categorically female nor consistently and categorically is an incompetent[27] and in the absence of evidence to show that
male) composition. Respondent has female (XX) classifying respondent as a male will harm other members of society
chromosomes. However, respondents body system naturally produces who are equally entitled to protection under the law, the Court affirms
high levels of male hormones (androgen). As a result, respondent has as valid and justified the respondents position and his personal judgment
ambiguous genitalia and the phenotypic features of a male. of being a male.

Ultimately, we are of the view that where the person is In so ruling we do no more than give respect to (1) the diversity
biologically or naturally intersex the determining factor in his gender of nature; and (2) how an individual deals with what nature has handed
classification would be what the individual, like respondent, having out. In other words, we respect respondents congenital condition and his
reached the age of majority, with good reason thinks of his/her mature decision to be a male. Life is already difficult for the ordinary
sex. Respondent here thinks of himself as a male and considering that person. We cannot but respect how respondent deals with
his body produces high levels of male hormones (androgen) there is his unordinary state and thus help make his life easier, considering the
preponderant biological support for considering him as being unique circumstances in this case.
male. Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of As for respondents change of name under Rule 103, this Court
such persons, like respondent, is fixed. has held that a change of name is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons adduced and the
Respondent here has simply let nature take its course and has not consequences that will follow.[28] The trial courts grant of respondents
taken unnatural steps to arrest or interfere with what he was born change of name from Jennifer to Jeff implies a change of a feminine
with. And accordingly, he has already ordered his life to that of a name to a masculine name. Considering the consequence that
male. Respondent could have undergone treatment and taken steps, like respondents change of name merely recognizes his preferred gender, we
taking lifelong medication,[26] to force his body into the categorical find merit in respondents change of name. Such a change will conform
mold of a female but he did not. He chose not to do so.Nature has instead with the change of the entry in his birth certificate from female to male.
taken its due course in respondents development to reveal more fully his
male characteristics.
WHEREFORE, the Republics petition is DENIED. The
Decision dated January 12, 2005 of the Regional Trial Court, Branch 33
of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

The definitional provision does not by its terms forbid States from enacting laws
SUPREME COURT OF THE UNITED STATES permitting same-sex marriages or civil unions or providing state benefits to residents
in that status. The enactment’s comprehensive definition of marriage for purposes of
all federal statutes and other regulations or directives covered by its terms, however,
does control over 1,000 federal laws in which marital or spousal status is addressed
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as a matter of federal law.
as executor of the ESTATE OF THEA CLARA SPYER, et al.
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term
relationship. Windsor and Spyer registered as domestic partners when New York
City gave that right to same-sex couples in 1993. Concerned about Spyer’s health,
the couple made the 2007 trip to Canada for their marriage, but they continued to
reside in New York City. The State of New York deems their Ontario marriage to be
June 26, 2013 a valid one.

Justice Kennedy delivered the opinion of the Court. Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA
denies federal recognition to same-sex spouses, Windsor did not qualify for the
marital exemption from the federal estate tax, which excludes from taxation “any
interest in property which passes or has passed from the decedent to his surviving
Two women then resident in New York were married in a lawful ceremony in spouse.” Windsor paid $363,053 in estate taxes and sought a refund. The Internal
Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in Revenue Service denied the refund, concluding that, under DOMA, Windsor was not
New York City. When Spyer died in 2009, she left her entire estate to Windsor. a “surviving spouse.” Windsor commenced this refund suit in the United States
Windsor sought to claim the estate tax exemption for surviving spouses. She was District Court for the Southern District of New York. She contended that DOMA
barred from doing so, however, by a federal law, the Defense of Marriage Act, which violates the guarantee of equal protection, as applied to the Federal Government
excludes a same-sex partner from the definition of “spouse” as that term is used in through the Fifth Amendment.
federal statutes. Windsor paid the taxes but filed suit to challenge the
constitutionality of this provision. The United States District Court and the Court of While the tax refund suit was pending, the Attorney General of the United States
Appeals ruled that this portion of the statute is unconstitutional and ordered the notified the Speaker of the House of Representatives that the Department of Justice
United States to pay Windsor a refund. This Court granted certiorari and now affirms would no longer defend the constitutionality of DOMA’s §3. Noting that “the
the judgment in Windsor’s favor. Department has previously defended DOMA against . . . challenges involving legally
married same-sex couples,” the Attorney General informed Congress that “the
I President has concluded that given a number of factors, including a documented
history of discrimination, classifications based on sexual orientation should be
In 1996, as some States were beginning to consider the concept of same-sex subject to a heightened standard of scrutiny.”
marriage, and before any State had acted to permit it, Congress enacted the Defense
of Marriage Act (DOMA). DOMA contains two operative sections: Section 2, which Although “the President . . . instructed the Department not to defend the statute in
has not been challenged here, allows States to refuse to recognize same-sex Windsor,” he also decided “that Section 3 will continue to be enforced by the
marriages performed under the laws of other States. Section 3 is at issue here. It Executive Branch” and that the United States had an “interest in providing Congress
amends the Dictionary Act in Title 1, §7, of the United States Code to provide a a full and fair opportunity to participate in the litigation of those cases.” The stated
federal definition of “marriage” and “spouse.” Section 3 of DOMA provides as rationale for this dual-track procedure (determination of unconstitutionality coupled
follows: “In determining the meaning of any Act of Congress, or of any ruling, with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter of
regulation, or interpretation of the various administrative bureaus and agencies of the the constitutional claims raised.”
United States, the word ‘marriage’ means only a legal union between one man and
one woman as husband and wife, and the word ‘spouse’ refers only to a person of the In response to the notice from the Attorney General, the Bipartisan Legal Advisory
opposite sex who is a husband or a wife.” Group (BLAG) of the House of Representatives voted to intervene in the litigation to
defend the constitutionality of §3 of DOMA. The Department of Justice did not
oppose limited intervention by BLAG....
On the merits of the tax refund suit, the District Court ruled against the United York, in common with, as of this writing, 11 other States and the District of
States. It held that §3 of DOMA is unconstitutional and ordered the Treasury to Columbia, decided that same-sex couples should have the right to marry and so live
refund the tax with interest. Both the Justice Department and BLAG filed notices of with pride in themselves and their union and in a status of equality with all other
appeal, and the Solicitor General filed a petition for certiorari before judgment. married persons....
Before this Court acted on the petition, the Court of Appeals for the Second Circuit
affirmed the District Court’s judgment. It applied heightened scrutiny to Against this background of lawful same-sex marriage in some States, the design,
classifications based on sexual orientation, as both the Department and Windsor had purpose, and effect of DOMA should be considered as the beginning point in
urged. The United States has not complied with the judgment. Windsor has not deciding whether it is valid under the Constitution. By history and tradition the
received her refund, and the Executive Branch continues to enforce §3 of DOMA. definition and regulation of marriage, as will be discussed in more detail, has been
treated as being within the authority and realm of the separate States....
In granting certiorari on the question of the constitutionality of §3 of DOMA, the
Court requested argument on two additional questions: whether the United States’ Though these discrete examples establish the constitutionality of limited federal laws
agreement with Windsor’s legal position precludes further review and whether that regulate the meaning of marriage in order to further federal policy, DOMA has a
BLAG has standing to appeal the case. All parties agree that the Court has far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and
jurisdiction to decide this case.... the whole realm of federal regulations.... In order to assess the validity of that
intervention it is necessary to discuss the extent of the state power and authority over
II marriage as a matter of history and tradition. State laws defining and regulating
marriage, of course, must respect the constitutional rights of persons, see, e.g.,
It is appropriate to begin by addressing whether either the Government or BLAG, or Loving v. Virginia (1967) ; but, subject to those guarantees, “regulation of domestic
both of them, were entitled to appeal to the Court of Appeals and later to seek relations” is “an area that has long been regarded as a virtually exclusive province of
certiorari and appear as parties here....[The Court finds it has jurisdiction to reach the the States.”
merits.]
Consistent with this allocation of authority, the Federal Government, through our
III history, has deferred to state-law policy decisions with respect to domestic
relations....
When at first Windsor and Spyer longed to marry, neither New York nor any other
State granted them that right. After waiting some years, in 2007 they traveled to The significance of state responsibilities for the definition and regulation of marriage
Ontario to be married there. It seems fair to conclude that, until recent years, many dates to the Nation’s beginning; for “when the Constitution was adopted the common
citizens had not even considered the possibility that two persons of the same sex understanding was that the domestic relations of husband and wife and parent and
might aspire to occupy the same status and dignity as that of a man and woman in child were matters reserved to the States.” Marriage laws vary in some respects from
lawful marriage. For marriage between a man and a woman no doubt had been State to State. For example, the required minimum age is 16 in Vermont, but only 13
thought of by most people as essential to the very definition of that term and to its in New Hampshire. Likewise the permissible degree of consanguinity can vary
role and function throughout the history of civilization. That belief, for many who (most States permit first cousins to marry, but a handful—such as Iowa and
long have held it, became even more urgent, more cherished when challenged. For Washington—prohibit the practice). But these rules are in every event consistent
others, however, came the beginnings of a new perspective, a new insight. within each State.
Accordingly some States concluded that same-sex marriage ought to be given
recognition and validity in the law for those same-sex couples who wish to define Against this background DOMA rejects the long-established precept that the
themselves by their commitment to each other. The limitation of lawful marriage to incidents, benefits, and obligations of marriage are uniform for all married couples
heterosexual couples, which for centuries had been deemed both necessary and within each State, though they may vary, subject to constitutional guarantees, from
fundamental, came to be seen in New York and certain other States as an unjust one State to the next. Despite these considerations, it is unnecessary to decide
exclusion. whether this federal intrusion on state power is a violation of the Constitution
because it disrupts the federal balance. The State’s power in defining the marital
Slowly at first and then in rapid course, the laws of New York came to acknowledge relation is of central relevance in this case quite apart from principles of federalism.
the urgency of this issue for same-sex couples who wanted to affirm their Here the State’s decision to give this class of persons the right to marry conferred
commitment to one another before their children, their family, their friends, and their upon them a dignity and status of immense import. When the State used its historic
community. And so New York recognized same-sex marriages performed elsewhere; and essential authority to define the marital relation in this way, its role and its power
and then it later amended its own marriage laws to permit same-sex marriage. New in making the decision enhanced the recognition, dignity, and protection of the class
in their own community. DOMA, because of its reach and extent, departs from this indicator of the substantial societal impact the State’s classifications have in the daily
history and tradition of reliance on state law to define marriage. Discriminations of lives and customs of its people. DOMA’s unusual deviation from the usual tradition
an unusual character especially suggest careful consideration to determine whether of recognizing and accepting state definitions of marriage here operates to deprive
they are obnoxious to the constitutional provision. same-sex couples of the benefits and responsibilities that come with the federal
recognition of their marriages. This is strong evidence of a law having the purpose
The Federal Government uses this state-defined class for the opposite purpose—to and effect of disapproval of that class. The avowed purpose and practical effect of
impose restrictions and disabilities. That result requires this Court now to address the law here in question are to impose a disadvantage, a separate status, and so a
whether the resulting injury and indignity is a deprivation of an essential part of the stigma upon all who enter into same-sex marriages made lawful by the unquestioned
liberty protected by the Fifth Amendment. What the State of New York treats as authority of the States.
alike the federal law deems unlike by a law designed to injure the same class the
State seeks to protect. The history of DOMA’s enactment and its own text demonstrate that interference
with the equal dignity of same-sex marriages, a dignity conferred by the States in the
In acting first to recognize and then to allow same-sex marriages, New York was exercise of their sovereign power, was more than an incidental effect of the federal
responding “to the initiative of those who [sought] a voice in shaping the destiny of statute. It was its essence. The House Report announced its conclusion that “it is both
their own times.” These actions were without doubt a proper exercise of its sovereign appropriate and necessary for Congress to do what it can to defend the institution of
authority within our federal system, all in the way that the Framers of the traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the
Constitution intended. The dynamics of state government in the federal system are to ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to
allow the formation of consensus respecting the way the members of a discrete homosexual couples is a truly radical proposal that would fundamentally alter the
community treat each other in their daily contact and constant interaction with each institution of marriage.” The House concluded that DOMA expresses “both moral
other. disapproval of homosexuality, and a moral conviction that heterosexuality better
comports with traditional (especially Judeo-Christian) morality.” The stated purpose
The States’ interest in defining and regulating the marital relation, subject to of the law was to promote an “interest in protecting the traditional moral teachings
constitutional guarantees, stems from the understanding that marriage is more than a reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-
routine classification for purposes of certain statutory benefits. Private, consensual reaching purpose, the title of the Act confirms it: The Defense of Marriage.
sexual intimacy between two adult persons of the same sex may not be punished by
the State, and it can form “but one element in a personal bond that is more The arguments put forward by BLAG are just as candid about the congressional
enduring.” Lawrence v. Texas (2003) . By its recognition of the validity of same-sex purpose to influence or interfere with state sovereign choices about who may be
marriages performed in other jurisdictions and then by authorizing same-sex unions married. As the title and dynamics of the bill indicate, its purpose is to discourage
and same-sex marriages, New York sought to give further protection and dignity to enactment of state same-sex marriage laws and to restrict the freedom and choice of
that bond. For same-sex couples who wished to be married, the State acted to give couples married under those laws if they are enacted. The congressional goal was “to
their lawful conduct a lawful status. This status is a far-reaching legal put a thumb on the scales and influence a state’s decision as to how to shape its own
acknowledgment of the intimate relationship between two people, a relationship marriage laws.” The Act’s demonstrated purpose is to ensure that if any State
deemed by the State worthy of dignity in the community equal with all other decides to recognize same-sex marriages, those unions will be treated as second-
marriages. It reflects both the community’s considered perspective on the historical class marriages for purposes of federal law. This raises a most serious question under
roots of the institution of marriage and its evolving understanding of the meaning of the Constitution’s Fifth Amendment.
equality.
DOMA’s operation in practice confirms this purpose. When New York adopted a
IV law to permit same-sex marriage, it sought to eliminate inequality; but DOMA
frustrates that objective through a system-wide enactment with no identified
DOMA seeks to injure the very class New York seeks to protect. By doing so it connection to any particular area of federal law. DOMA writes inequality into the
violates basic due process and equal protection principles applicable to the Federal entire United States Code. The particular case at hand concerns the estate tax, but
Government. The Constitution’s guarantee of equality “must at the very least mean DOMA is more than a simple determination of what should or should not be allowed
that a bare congressional desire to harm a politically unpopular group cannot” justify as an estate tax refund. Among the over 1,000 statutes and numerous federal
disparate treatment of that group. . In determining whether a law is motivated by an regulations that DOMA controls are laws pertaining to Social Security, housing,
improper animus or purpose, discriminations of an unusual character especially taxes, criminal sanctions, copyright, and veterans’ benefits.
require careful consideration. DOMA cannot survive under these principles. The
responsibility of the States for the regulation of domestic relations is an important
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and who are in a lawful same-sex marriage. This requires the Court to hold, as it now
make them unequal. The principal purpose is to impose inequality, not for other does, that DOMA is unconstitutional as a deprivation of the liberty of the person
reasons like governmental efficiency. Responsibilities, as well as rights, enhance the protected by the Fifth Amendment of the Constitution.
dignity and integrity of the person. And DOMA contrives to deprive some couples
married under the laws of their State, but not other couples, of both rights and The liberty protected by the Fifth Amendment’s Due Process Clause contains within
responsibilities. By creating two contradictory marriage regimes within the same it the prohibition against denying to any person the equal protection of the laws.
State, DOMA forces same-sex couples to live as married for the purpose of state law While the Fifth Amendment itself withdraws from Government the power to degrade
but unmarried for the purpose of federal law, thus diminishing the stability and or demean in the way this law does, the equal protection guarantee of the Fourteenth
predictability of basic personal relations the State has found it proper to acknowledge Amendment makes that Fifth Amendment right all the more specific and all the
and protect. By this dynamic DOMA undermines both the public and private better understood and preserved.
significance of state-sanctioned same-sex marriages; for it tells those couples, and all
the world, that their otherwise valid marriages are unworthy of federal recognition. The class to which DOMA directs its restrictions and restraints are those persons
This places same-sex couples in an unstable position of being in a second-tier who are joined in same-sex marriages made lawful by the State. DOMA singles out a
marriage. The differentiation demeans the couple, whose moral and sexual choices class of persons deemed by a State entitled to recognition and protection to enhance
the Constitution protects, and whose relationship the State has sought to dignify. And their own liberty. It imposes a disability on the class by refusing to acknowledge a
it humiliates tens of thousands of children now being raised by same-sex couples. status the State finds to be dignified and proper. DOMA instructs all federal officials,
The law in question makes it even more difficult for the children to understand the and indeed all persons with whom same-sex couples interact, including their own
integrity and closeness of their own family and its concord with other families in children, that their marriage is less worthy than the marriages of others. The federal
their community and in their daily lives. statute is invalid, for no legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its marriage laws, sought to protect
Under DOMA, same-sex married couples have their lives burdened, by reason of in personhood and dignity. By seeking to displace this protection and treating those
government decree, in visible and public ways. By its great reach, DOMA touches persons as living in marriages less respected than others, the federal statute is in
many aspects of married and family life, from the mundane to the profound. It violation of the Fifth Amendment. This opinion and its holding are confined to those
prevents same-sex married couples from obtaining government healthcare benefits lawful marriages.
they would otherwise receive. It deprives them of the Bankruptcy Code’s special
protections for domestic-support obligations. It forces them to follow a complicated Chief Justice Roberts, dissenting.
procedure to file their state and federal taxes jointly.
I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of
For certain married couples, DOMA’s unequal effects are even more serious. The the courts below. On the merits of the constitutional dispute the Court decides to
federal penal code makes it a crime to “assault, kidnap, or murder . . . a member of decide, I also agree with Justice Scalia that Congress acted constitutionally in
the immediate family” of “a United States official, a United States judge, or a passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability
Federal law enforcement officer,” with the intent to influence or retaliate against that amply justified Congress’s decision to retain the definition of marriage that, at that
official. Although a “spouse” qualifies as a member of the officer’s “immediate point, had been adopted by every State in our Nation, and every nation in the
family,” DOMA makes this protection inapplicable to same-sex spouses. world....

DOMA also brings financial harm to children of same-sex couples. It raises the cost Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice
of health care for families by taxing health benefits provided by employers to their joins as to Part I, dissenting.
workers’ same-sex spouses. And it denies or reduces benefits allowed to families
upon the loss of a spouse and parent, benefits that are an integral part of family This case is about power in several respects. It is about the power of our people to
security.... govern themselves, and the power of this Court to pronounce the law. Today’s
opinion aggrandizes the latter, with the predictable consequence of diminishing the
The power the Constitution grants it also restrains. And though Congress has great former. We have no power to decide this case. And even if we did, we have no
authority to design laws to fit its own conception of sound national policy, it cannot power under the Constitution to invalidate this democratically adopted legislation.
deny the liberty protected by the Due Process Clause of the Fifth Amendment. The Court’s errors on both points spring forth from the same diseased root: an
exalted conception of the role of this institution in America....
What has been explained to this point should more than suffice to establish that the
principal purpose and the necessary effect of this law are to demean those persons
The Court is eager—hungry—to tell everyone its view of the legal question at the In the majority’s telling, this story is black-and-white: Hate your neighbor or come
heart of this case. Standing in the way is an obstacle, a technicality of little interest to along with us. The truth is more complicated. It is hard to admit that one’s political
anyone but the people of We the People, who created it as a barrier against judges’ opponents are not monsters, especially in a struggle like this one, and the challenge
intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” in the end proves more than today’s Court can handle. Too bad. A reminder that
a power to decide not abstract questions but real, concrete “Cases” and disagreement over something so fundamental as marriage can still be politically
“Controversies.” Yet the plaintiff and the Government agree entirely on what should legitimate would have been a fit task for what in earlier times was called the judicial
happen in this lawsuit. They agree that the court below got it right; and they agreed temperament. We might have covered ourselves with honor today, by promising all
in the court below that the court below that one got it right as well. What, then, are sides of this debate that it was theirs to settle and that we would respect their
we doing here?.... resolution. We might have let the People decide.

For the reasons above, I think that this Court has, and the Court of Appeals had, no But that the majority will not do. Some will rejoice in today’s decision, and some
power to decide this suit. We should vacate the decision below and remand to the will despair at it; that is the nature of a controversy that matters so much to so many.
Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. But the Court has cheated both sides, robbing the winners of an honest victory, and
Given that the majority has volunteered its view of the merits, however, I proceed to the losers of the peace that comes from a fair defeat. We owed both of them better. I
discuss that as well. dissent.

There are many remarkable things about the majority’s merits holding. The first is
how rootless and shifting its justifications are. For example, the opinion starts with
seven full pages about the traditional power of States to define domestic relations—
initially fooling many readers, I am sure, into thinking that this is a federalism
opinion. But we are eventually told that “it is unnecessary to decide whether this
federal intrusion on state power is a violation of the Constitution,” and that “[t]he
State’s power in defining the marital relation is of central relevance in this case quite
apart from principles of federalism” because “the State’s decision to give this class
of persons the right to marry conferred upon them a dignity and status of immense
import.” But no one questions the power of the States to define marriage (with the
concomitant conferral of dignity and status), so what is the point of devoting seven
pages to describing how long and well established that power is? Even after the
opinion has formally disclaimed reliance upon principles of federalism, mentions of
“the usual tradition of recognizing and accepting state definitions of marriage”
continue. What to make of this? The opinion never explains. My guess is that the
majority, while reluctant to suggest that defining the meaning of “marriage” in
federal statutes is unsupported by any of the Federal Government’s enumerated
powers, nonetheless needs some rhetorical basis to support its pretense that today’s
prohibition of laws excluding same-sex marriage is confined to the Federal
Government (leaving the second, state-law shoe to be dropped later, maybe next
Term). But I am only guessing....

Few public controversies touch an institution so central to the lives of so many, and
few inspire such attendant passion by good people on all sides. Few public
controversies will ever demonstrate so vividly the beauty of what our Framers gave
us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system
of government that permits us to rule ourselves. Since DOMA’s passage, citizens on
all sides of the question have seen victories and they have seen defeats. There have
been plebiscites, legislation, persuasion, and loud voices—in other words,
democracy. Victories in one place for some are offset by victories in other places for
others...
Republic of the Philippines
Supreme Court The Case
Manila
This case comes before us via Petition for Review
on Certiorari[1] under Rule 45 of the Rules of Court. The petitioner
SECOND DIVISION seeks that we vacate and set aside the Order[2] dated January 8, 2007 of
the Regional Trial Court (RTC), Branch 1, Butuan City. In lieu of the
BRIGIDO B. QUIAO, G.R. No 176556 said order, we are asked to issue a Resolution defining the net profits
Petitioner, subject of the forfeiture as a result of the decree of legal separation in
Present: accordance with the provision of Article 102(4) of the Family Code, or
alternatively, in accordance with the provisions of Article 176 of the
CARPIO, J., Chairperson, Civil Code.
- versus - BRION,
PEREZ, Antecedent Facts
SERENO, and
REYES, JJ. On October 26, 2000, herein respondent Rita C. Quiao (Rita)
RITA C. QUIAO, KITCHIE C. filed a complaint for legal separation against herein petitioner Brigido
QUIAO, LOTIS C. QUIAO, B. Quiao (Brigido).[3] Subsequently, the RTC rendered a
PETCHIE C. QUIAO, Promulgated: Decision[4] dated October 10, 2005, the dispositive portion of which
represented by their mother July 4, 2012 provides:
RITA QUIAO,
Respondents. WHEREFORE, viewed from the foregoing
x------------------------------------------------------------------------------------ considerations, judgment is hereby rendered declaring
-----x the legal separation of plaintiff Rita C. Quiao and
defendant-respondent Brigido B. Quiao pursuant to
DECISION Article 55.

REYES, J.: As such, the herein parties shall be entitled to live


separately from each other, but the marriage bond shall
The family is the basic and the most important institution of not be severed.
society. It is in the family where children are born and molded either to
become useful citizens of the country or troublemakers in the Except for Letecia C. Quiao who is of legal age,
community. Thus, we are saddened when parents have to separate and the three minor children, namely, Kitchie, Lotis and
fight over properties, without regard to the message they send to their Petchie, all surnamed Quiao shall remain under the
children. Notwithstanding this, we must not shirk from our obligation custody of the plaintiff who is the innocent spouse.
to rule on this case involving legal separation escalating to questions on
dissolution and partition of properties. Further, except for the personal and real
properties already foreclosed by the RCBC, all the
remaining properties, namely:
On December 12, 2005, the respondents filed a motion for
1. coffee mill in Balongagan, Las Nieves, execution[7] which the trial court granted in its Order dated December
Agusan del Norte; 16, 2005, the dispositive portion of which reads:
2. coffee mill in Durian, Las Nieves, Agusan
del Norte; Wherefore, finding the motion to be well taken,
3. corn mill in Casiklan, Las Nieves, Agusan the same is hereby granted. Let a writ of execution be
del Norte; issued for the immediate enforcement of the Judgment.
4. coffee mill in Esperanza, Agusan del Sur;
5. a parcel of land with an area of 1,200 square SO ORDERED.[8]
meters located in Tungao, Butuan City;
6. a parcel of agricultural land with an area of
5 hectares located in Manila de Bugabos, Butuan City; Subsequently, on February 10, 2006, the RTC issued a Writ of
7. a parcel of land with an area of 84 square Execution[9] which reads as follows:
meters located in Tungao, Butuan City;
8. Bashier Bon Factory located in NOW THEREFORE, that of the goods and
Tungao, Butuan City; chattels of the [petitioner] BRIGIDO B. QUIAO you
cause to be made the sums stated in the afore-quoted
shall be divided equally between herein [respondents] DECISION [sic], together with your lawful fees in the
and [petitioner] subject to the respective legitimes of the service of this Writ, all in the Philippine Currency.
children and the payment of the unpaid conjugal
liabilities of [P]45,740.00.
But if sufficient personal property cannot be
[Petitioners] share, however, of the net profits found whereof to satisfy this execution and your lawful
earned by the conjugal partnership is forfeited in favor fees, then we command you that of the lands and
of the common children. buildings of the said [petitioner], you make the said sums
in the manner required by law. You are enjoined to
He is further ordered to reimburse [respondents] strictly observed Section 9, Rule 39, Rule [sic] of the
the sum of [P]19,000.00 as attorney's fees and litigation 1997 Rules of Civil Procedure.
expenses of [P]5,000.00[.]
You are hereby ordered to make a return of the
[5]
SO ORDERED. said proceedings immediately after the judgment has
been satisfied in part or in full in consonance with
Section 14, Rule 39 of the 1997 Rules of Civil Procedure,
Neither party filed a motion for reconsideration and appeal as amended.[10]
within the period provided for under Section 17(a) and (b) of the Rule
on Legal Separation.[6]
On July 6, 2006, the writ was partially executed with the
petitioner paying the respondents the amount of P46,870.00,
representing the following payments:
petitioner simply wanted to clarify the meaning of net profit
(a) P22,870.00 as petitioner's share of the payment of the earned.[19] Furthermore, the same Order held:
conjugal share;
(b) P19,000.00 as attorney's fees; and ALL TOLD, the Court Order dated August 31,
(c) P5,000.00 as litigation expenses.[11] 2006 is hereby ordered set aside. NET PROFIT
EARNED, which is subject of forfeiture in favor of [the]
On July 7, 2006, or after more than nine months from the parties' common children, is ordered to be computed in
promulgation of the Decision, the petitioner filed before the RTC a accordance [with] par. 4 of Article 102 of the Family
Motion for Clarification,[12] asking the RTC to define the term Net Code.[20]
Profits Earned.

To resolve the petitioner's Motion for Clarification, the RTC On November 21, 2006, the respondents filed a Motion for
issued an Order[13] dated August 31, 2006, which held that the phrase Reconsideration,[21] praying for the correction and reversal of the Order
NET PROFIT EARNED denotes the remainder of the properties of the dated November 8, 2006. Thereafter, on January 8, 2007,[22] the trial
parties after deducting the separate properties of each [of the] spouse court had changed its ruling again and granted the respondents' Motion
and the debts.[14] The Order further held that after determining the for Reconsideration whereby the Order dated November 8, 2006 was set
remainder of the properties, it shall be forfeited in favor of the common aside to reinstate the Order dated August 31, 2006.
children because the offending spouse does not have any right to any
share of the net profits earned, pursuant to Articles 63, No. (2) and 43, Not satisfied with the trial court's Order, the petitioner filed on
No. (2) of the Family Code.[15] The dispositive portion of the Order February 27, 2007 this instant Petition for Review under Rule 45 of the
states: Rules of Court, raising the following:

WHEREFORE, there is no blatant disparity Issues


when the sheriff intends to forfeit all the remaining
properties after deducting the payments of the debts for I
only separate properties of the defendant-respondent
shall be delivered to him which he has none. IS THE DISSOLUTION AND THE CONSEQUENT
LIQUIDATION OF THE COMMON PROPERTIES OF
The Sheriff is herein directed to proceed with the THE HUSBAND AND WIFE BY VIRTUE OF THE
execution of the Decision. DECREE OF LEGAL SEPARATION GOVERNED BY
ARTICLE 125 (SIC) OF THE FAMILY CODE?
IT IS SO ORDERED.[16]
II

Not satisfied with the trial court's Order, the petitioner filed a WHAT IS THE MEANING OF THE NET PROFITS
Motion for Reconsideration[17] on September 8, 2006. Consequently, the EARNED BY THE CONJUGAL PARTNERSHIP FOR
RTC issued another Order[18] dated November 8, 2006, holding that PURPOSES OF EFFECTING THE FORFEITURE
although the Decision dated October 10, 2005 has become final and AUTHORIZED UNDER ARTICLE 63 OF THE
executory, it may still consider the Motion for Clarification because the FAMILY CODE?
III
Section 3, Rule 41 of the Rules of Court provides:
WHAT LAW GOVERNS THE PROPERTY
RELATIONS BETWEEN THE HUSBAND AND Section 3. Period of ordinary appeal. - The
WIFE WHO GOT MARRIED IN 1977? CAN THE appeal shall be taken within fifteen (15) days from notice
FAMILY CODE OF THE PHILIPPINES BE GIVEN of the judgment or final order appealed from. Where a
RETROACTIVE EFFECT FOR PURPOSES OF record on appeal is required, the appellant shall file a
DETERMINING THE NET PROFITS SUBJECT OF notice of appeal and a record on appeal within thirty (30)
FORFEITURE AS A RESULT OF THE DECREE OF days from notice of the judgment or final order.
LEGAL SEPARATION WITHOUT IMPAIRING
VESTED RIGHTS ALREADY ACQUIRED UNDER The period of appeal shall be interrupted by a timely
THE CIVIL CODE? motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
IV reconsideration shall be allowed.

WHAT PROPERTIES SHALL BE INCLUDED IN


THE FORFEITURE OF THE SHARE OF THE In Neypes v. Court of Appeals,[25] we clarified that to standardize
GUILTY SPOUSE IN THE NET CONJUGAL the appeal periods provided in the Rules and to afford litigants fair
PARTNERSHIP AS A RESULT OF THE ISSUANCE opportunity to appeal their cases, we held that it would be practical to
OF THE DECREE OF LEGAL SEPARATION?[23] allow a fresh period of 15 days within which to file the notice of appeal
in the RTC, counted from receipt of the order dismissing a motion for a
new trial or motion for reconsideration.[26]
Our Ruling
In Neypes, we explained that the "fresh period rule" shall also
While the petitioner has raised a number of issues on the apply to Rule 40 governing appeals from the Municipal Trial Courts to
applicability of certain laws, we are well-aware that the respondents the RTCs; Rule 42 on petitions for review from the RTCs to the Court
have called our attention to the fact that the Decision dated October 10, of Appeals (CA); Rule 43 on appeals from quasi-judicial agencies to the
2005 has attained finality when the Motion for Clarification was CA and Rule 45 governing appeals by certiorari to the Supreme
filed.[24] Thus, we are constrained to resolve first the issue of the finality Court. We also said, The new rule aims to regiment or make the appeal
of the Decision dated October 10, 2005 and subsequently discuss the period uniform, to be counted from receipt of the order denying the
matters that we can clarify. motion for new trial, motion for reconsideration (whether full or partial)
or any final order or resolution.[27] In other words, a party litigant may
The Decision dated file his notice of appeal within a fresh 15-day period from his receipt of
October 10, 2005 has the trial court's decision or final order denying his motion for new trial
become final and or motion for reconsideration. Failure to avail of the fresh 15-day period
executory at the time the from the denial of the motion for reconsideration makes the decision or
Motion for Clarification final order in question final and executory.
was filed on July 7, 2006.
In the case at bar, the trial court rendered its Decision on October relating to marital status and property relations of the husband and wife
10, 2005. The petitioner neither filed a motion for reconsideration nor a or those living together.[32] The Rule on Legal Separation[33] provides
notice of appeal. On December 16, 2005, or after 67 days had lapsed, that the petition [for legal separation] shall be filed in the Family Court
the trial court issued an order granting the respondent's motion for of the province or city where the petitioner or the respondent has been
execution; and on February 10, 2006, or after 123 days had lapsed, the residing for at least six months prior to the date of filing or in the case
trial court issued a writ of execution. Finally, when the writ had already of a non-resident respondent, where he may be found in the Philippines,
been partially executed, the petitioner, on July 7, 2006 or after 270 days at the election of the petitioner.[34] In the instant case, herein respondent
had lapsed, filed his Motion for Clarification on the definition of the net Rita is found to reside in Tungao, Butuan City for more than six months
profits earned. From the foregoing, the petitioner had clearly slept on prior to the date of filing of the petition; thus, the RTC, clearly has
his right to question the RTCs Decision dated October 10, 2005. For 270 jurisdiction over the respondent's petition below. Furthermore, the RTC
days, the petitioner never raised a single issue until the decision had also acquired jurisdiction over the persons of both parties, considering
already been partially executed. Thus at the time the petitioner filed his that summons and a copy of the complaint with its annexes were served
motion for clarification, the trial courts decision has become final and upon the herein petitioner on December 14, 2000 and that the herein
executory. A judgment becomes final and executory when the petitioner filed his Answer to the Complaint on January 9,
reglementary period to appeal lapses and no appeal is perfected within 2001.[35] Thus, without doubt, the RTC, which has rendered the
such period. Consequently, no court, not even this Court, can arrogate questioned judgment, has jurisdiction over the complaint and the
unto itself appellate jurisdiction to review a case or modify a judgment persons of the parties.
that became final.[28]
From the aforecited facts, the questioned October 10, 2005
The petitioner argues that the decision he is questioning is a void judgment of the trial court is clearly not void ab initio, since it was
judgment. Being such, the petitioner's thesis is that it can still be rendered within the ambit of the court's jurisdiction. Being such, the
disturbed even after 270 days had lapsed from the issuance of the same cannot anymore be disturbed, even if the modification is meant to
decision to the filing of the motion for clarification. He said that a void correct what may be considered an erroneous conclusion of fact or
judgment is no judgment at all. It never attains finality and cannot be a law.[36] In fact, we have ruled that for [as] long as the public respondent
source of any right nor any obligation.[29] But what precisely is a void acted with jurisdiction, any error committed by him or it in the exercise
judgment in our jurisdiction? When does a judgment becomes void? thereof will amount to nothing more than an error of judgment which
may be reviewed or corrected only by appeal.[37] Granting without
A judgment is null and void when the court which rendered it admitting that the RTC's judgment dated October 10, 2005 was
had no power to grant the relief or no jurisdiction over the subject matter erroneous, the petitioner's remedy should be an appeal filed within the
or over the parties or both.[30] In other words, a court, which does not reglementary period.Unfortunately, the petitioner failed to do this. He
have the power to decide a case or that has no jurisdiction over the has already lost the chance to question the trial court's decision, which
subject matter or the parties, will issue a void judgment or a coram non has become immutable and unalterable. What we can only do is to
judice.[31] clarify the very question raised below and nothing more.

The questioned judgment does not fall within the purview of a For our convenience, the following matters cannot anymore be
void judgment. For sure, the trial court has jurisdiction over a case disturbed since the October 10, 2005 judgment has already become
involving legal separation. Republic Act (R.A.) No. 8369 confers upon immutable and unalterable, to wit:
an RTC, designated as the Family Court of a city, the exclusive original
jurisdiction to hear and decide, among others, complaints or petitions
(a) The finding that the petitioner is the offending spouse since liabilities totaling P503,862.10 shall be charged to the income generated
he cohabited with a woman who is not his wife;[38] by these properties;[49]

(b) The trial court's grant of the petition for legal separation of (m) The fact that the trial court had no way of knowing whether
respondent Rita;[39] the petitioner had separate properties which can satisfy his share for the
support of the family;[50]
(c) The dissolution and liquidation of the conjugal
partnership;[40] (n) The holding that the applicable law in this case is Article
129(7);[51]
(d) The forfeiture of the petitioner's right to any share of the net
profits earned by the conjugal partnership;[41] (o) The ruling that the remaining properties not subject to any
encumbrance shall therefore be divided equally between the petitioner
(e) The award to the innocent spouse of the minor children's and the respondent without prejudice to the children's legitime;[52]
custody;[42]
(p) The holding that the petitioner's share of the net profits
(f) The disqualification of the offending spouse from inheriting earned by the conjugal partnership is forfeited in favor of the common
from the innocent spouse by intestate succession;[43] children;[53] and

(g) The revocation of provisions in favor of the offending spouse (q) The order to the petitioner to reimburse the respondents the
made in the will of the innocent spouse;[44] sum of P19,000.00 as attorney's fees and litigation expenses
of P5,000.00.[54]
(h) The holding that the property relation of the parties is
conjugal partnership of gains and pursuant to Article 116 of the Family After discussing lengthily the immutability of the Decision dated
Code, all properties acquired during the marriage, whether acquired by October 10, 2005, we will discuss the following issues for the
one or both spouses, is presumed to be conjugal unless the contrary is enlightenment of the parties and the public at large.
proved;[45]

(i) The finding that the spouses acquired their real and personal Article 129 of the Family
properties while they were living together;[46] Code applies to the
present case since the
(j) The list of properties which Rizal Commercial Banking parties' property
Corporation (RCBC) foreclosed;[47] relation is governed by
the system of relative
(k) The list of the remaining properties of the couple which must community or conjugal
be dissolved and liquidated and the fact that respondent Rita was the partnership of gains.
one who took charge of the administration of these properties;[48]

(l) The holding that the conjugal partnership shall be liable to The petitioner claims that the court a quo is wrong when it
matters included under Article 121 of the Family Code and the conjugal applied Article 129 of the Family Code, instead of Article 102. He
confusingly argues that Article 102 applies because there is no other concerned is Article 129 of the Family Code in relation to Article 63(2)
provision under the Family Code which defines net profits earned of the Family Code. The latter provision is applicable because according
subject of forfeiture as a result of legal separation. to Article 256 of the Family Code [t]his Code shall have retroactive
effect insofar as it does not prejudice or impair vested or acquired rights
Offhand, the trial court's Decision dated October 10, 2005 held in accordance with the Civil Code or other law.[58]
that Article 129(7) of the Family Code applies in this case. We agree
with the trial court's holding. Now, the petitioner asks: Was his vested right over half of the
common properties of the conjugal partnership violated when the trial
First, let us determine what governs the couple's property court forfeited them in favor of his children pursuant to Articles 63(2)
relation. From the record, we can deduce that the petitioner and the and 129 of the Family Code?
respondent tied the marital knot on January 6, 1977. Since at the time of
the exchange of marital vows, the operative law was the Civil Code of We respond in the negative.
the Philippines (R.A. No. 386) and since they did not agree on a
marriage settlement, the property relations between the petitioner and Indeed, the petitioner claims that his vested rights have been
the respondent is the system of relative community or conjugal impaired, arguing: As earlier adverted to, the petitioner acquired vested
partnership of gains.[55] Article 119 of the Civil Code provides: rights over half of the conjugal properties, the same being owned in
common by the spouses. If the provisions of the Family Code are to be
Art. 119. The future spouses may in the marriage given retroactive application to the point of authorizing the forfeiture of
settlements agree upon absolute or relative community the petitioner's share in the net remainder of the conjugal partnership
of property, or upon complete separation of property, or properties, the same impairs his rights acquired prior to the effectivity
upon any other regime. In the absence of marriage of the Family Code.[59] In other words, the petitioner is saying that since
settlements, or when the same are void, the system of the property relations between the spouses is governed by the regime of
relative community or conjugal partnership of gains as Conjugal Partnership of Gains under the Civil Code, the petitioner
established in this Code, shall govern the property acquired vested rights over half of the properties of the Conjugal
relations between husband and wife. Partnership of Gains, pursuant to Article 143 of the Civil Code, which
provides: All property of the conjugal partnership of gains is owned in
common by the husband and wife.[60] Thus, since he is one of the owners
Thus, from the foregoing facts and law, it is clear that what of the properties covered by the conjugal partnership of gains, he has a
governs the property relations of the petitioner and of the respondent is vested right over half of the said properties, even after the promulgation
conjugal partnership of gains. And under this property relation, the of the Family Code; and he insisted that no provision under the Family
husband and the wife place in a common fund the fruits of their separate Code may deprive him of this vested right by virtue of Article 256 of
property and the income from their work or industry.[56] The husband the Family Code which prohibits retroactive application of the Family
and wife also own in common all the property of the conjugal Code when it will prejudice a person's vested right.
partnership of gains.[57]
However, the petitioner's claim of vested right is not one which
Second, since at the time of the dissolution of the petitioner and is written on stone. In Go, Jr. v. Court of Appeals,[61] we define and
the respondent's marriage the operative law is already the Family Code, explained vested right in the following manner:
the same applies in the instant case and the applicable law in so far as
the liquidation of the conjugal partnership assets and liabilities is
A vested right is one whose existence, effectivity In the present case, the petitioner was accorded his right to due
and extent do not depend upon events foreign to the will process. First, he was well-aware that the respondent prayed in her
of the holder, or to the exercise of which no obstacle complaint that all of the conjugal properties be awarded to her.[65] In
exists, and which is immediate and perfect in itself and fact, in his Answer, the petitioner prayed that the trial court divide the
not dependent upon a contingency. The term vested right community assets between the petitioner and the respondent as
expresses the concept of present fixed interest which, in circumstances and evidence warrant after the accounting and inventory
right reason and natural justice, should be protected of all the community properties of the parties.[66] Second, when the
against arbitrary State action, or an innately just and Decision dated October 10, 2005 was promulgated, the petitioner never
imperative right which enlightened free society, questioned the trial court's ruling forfeiting what the trial court termed
sensitive to inherent and irrefragable individual rights, as net profits, pursuant to Article 129(7) of the Family Code.[67] Thus,
cannot deny. the petitioner cannot claim being deprived of his right to due process.

To be vested, a right must have become a Furthermore, we take note that the alleged deprivation of the
titlelegal or equitableto the present or future enjoyment petitioner's vested right is one founded, not only in the provisions of the
of property.[62] (Citations omitted) Family Code, but in Article 176 of the Civil Code. This provision is like
Articles 63 and 129 of the Family Code on the forfeiture of the guilty
spouse's share in the conjugal partnership profits. The said provision
In our en banc Resolution dated October 18, 2005 says:
for ABAKADA Guro Party List Officer Samson S. Alcantara, et al. v.
The Hon. Executive Secretary Eduardo R. Ermita,[63] we also explained: Art. 176. In case of legal separation, the guilty
spouse shall forfeit his or her share of the conjugal
The concept of vested right is a consequence of partnership profits, which shall be awarded to the
the constitutional guaranty of due process that children of both, and the children of the guilty spouse
expresses a present fixed interest which in right reason had by a prior marriage. However, if the conjugal
and natural justice is protected against arbitrary state partnership property came mostly or entirely from the
action; it includes not only legal or equitable title to the work or industry, or from the wages and salaries, or from
enforcement of a demand but also exemptions from new the fruits of the separate property of the guilty spouse,
obligations created after the right has become this forfeiture shall not apply.
vested. Rights are considered vested when the right to
enjoyment is a present interest, absolute, unconditional, In case there are no children, the innocent spouse
and perfect or fixed and irrefutable.[64] (Emphasis and shall be entitled to all the net profits.
underscoring supplied)

From the foregoing, the petitioner's claim of a vested right has


From the foregoing, it is clear that while one may not be no basis considering that even under Article 176 of the Civil Code, his
deprived of his vested right, he may lose the same if there is due process share of the conjugal partnership profits may be forfeited if he is the
and such deprivation is founded in law and jurisprudence. guilty party in a legal separation case. Thus, after trial and after the
petitioner was given the chance to present his evidence, the petitioner's
vested right claim may in fact be set aside under the Civil Code since
the trial court found him the guilty party. The net profits of the
conjugal partnership of
More, in Abalos v. Dr. Macatangay, Jr.,[68] we reiterated our gains are all the fruits of
long-standing ruling that: the separate properties
of the spouses and the
[P]rior to the liquidation of the conjugal partnership, the products of their labor
interest of each spouse in the conjugal assets is inchoate, and industry.
a mere expectancy, which constitutes neither a legal nor
an equitable estate, and does not ripen into title until it
appears that there are assets in the community as a result The petitioner inquires from us the meaning of net profits earned
of the liquidation and settlement. The interest of each by the conjugal partnership for purposes of effecting the forfeiture
spouse is limited to the net remainder or remanente authorized under Article 63 of the Family Code. He insists that since
liquido (haber ganancial) resulting from the liquidation there is no other provision under the Family Code, which defines net
of the affairs of the partnership after its profits earned subject of forfeiture as a result of legal separation, then
dissolution. Thus, the right of the husband or wife to one- Article 102 of the Family Code applies.
half of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal partnership, What does Article 102 of the Family Code say? Is the
or after dissolution of the marriage, when it is finally computation of net profits earned in the conjugal partnership of gains
determined that, after settlement of conjugal obligations, the same with the computation of net profits earned in the absolute
there are net assets left which can be divided between the community?
spouses or their respective heirs.[69] (Citations omitted)
Now, we clarify.

Finally, as earlier discussed, the trial court has already decided First and foremost, we must distinguish between the applicable
in its Decision dated October 10, 2005 that the applicable law in this law as to the property relations between the parties and the applicable
case is Article 129(7) of the Family Code.[70] The petitioner did not file law as to the definition of net profits. As earlier discussed, Article 129
a motion for reconsideration nor a notice of appeal. Thus, the petitioner of the Family Code applies as to the property relations of the parties. In
is now precluded from questioning the trial court's decision since it has other words, the computation and the succession of events will follow
become final and executory. The doctrine of immutability and the provisions under Article 129 of the said Code. Moreover, as to the
unalterability of a final judgment prevents us from disturbing the definition of net profits, we cannot but refer to Article 102(4) of the
Decision dated October 10, 2005 because final and executory decisions Family Code, since it expressly provides that for purposes of computing
can no longer be reviewed nor reversed by this Court.[71] the net profits subject to forfeiture under Article 43, No. (2) and Article
63, No. (2), Article 102(4) applies. In this provision, net profits shall be
From the above discussions, Article 129 of the Family Code the increase in value between the market value of the community
clearly applies to the present case since the parties' property relation is property at the time of the celebration of the marriage and the market
governed by the system of relative community or conjugal partnership value at the time of its dissolution.[72] Thus, without any iota of doubt,
of gains and since the trial court's Decision has attained finality and Article 102(4) applies to both the dissolution of the absolute community
immutability. regime under Article 102 of the Family Code, and to the dissolution of
the conjugal partnership regime under Article 129 of the Family Code. community's dissolution. From the totality of the market value of all the
Where lies the difference? As earlier shown, the difference lies in the properties, we subtract the debts and obligations of the absolute
processes used under the dissolution of the absolute community regime community and this result to the net assets or net remainder of the
under Article 102 of the Family Code, and in the processes used under properties of the absolute community, from which we deduct the market
the dissolution of the conjugal partnership regime under Article 129 of value of the properties at the time of marriage, which then results to the
the Family Code. net profits.[75]

Let us now discuss the difference in the processes between the Granting without admitting that Article 102 applies to the instant
absolute community regime and the conjugal partnership regime. case, let us see what will happen if we apply Article 102:

On Absolute Community Regime: (a) According to the trial court's finding of facts, both husband
and wife have no separate properties, thus, the remaining properties in
When a couple enters into a regime of absolute community, the the list above are all part of the absolute community. And its market
husband and the wife becomes joint owners of all the properties of the value at the time of the dissolution of the absolute community
marriage. Whatever property each spouse brings into the marriage, and constitutes the market value at dissolution.
those acquired during the marriage (except those excluded under Article
92 of the Family Code) form the common mass of the couple's (b) Thus, when the petitioner and the respondent finally were
properties. And when the couple's marriage or community is dissolved, legally separated, all the properties which remained will be liable for the
that common mass is divided between the spouses, or their respective debts and obligations of the community. Such debts and obligations will
heirs, equally or in the proportion the parties have established, be subtracted from the market value at dissolution.
irrespective of the value each one may have originally owned.[73]
(c) What remains after the debts and obligations have been paid
Under Article 102 of the Family Code, upon dissolution of from the total assets of the absolute community constitutes the net
marriage, an inventory is prepared, listing separately all the properties remainder or net asset. And from such net asset/remainder of the
of the absolute community and the exclusive properties of each; then the petitioner and respondent's remaining properties, the market value at the
debts and obligations of the absolute community are paid out of the time of marriage will be subtracted and the resulting totality constitutes
absolute community's assets and if the community's properties are the net profits.
insufficient, the separate properties of each of the couple will be
solidarily liable for the unpaid balance. Whatever is left of the separate (d) Since both husband and wife have no separate
properties will be delivered to each of them. The net remainder of the properties, and nothing would be returned to each of them, what will
absolute community is its net assets, which shall be divided between the be divided equally between them is simply the net profits. However, in
husband and the wife; and for purposes of computing the net profits the Decision dated October 10, 2005, the trial court forfeited the half-
subject to forfeiture, said profits shall be the increase in value between share of the petitioner in favor of his children. Thus, if we use Article
the market value of the community property at the time of the 102 in the instant case (which should not be the case), nothing is left to
celebration of the marriage and the market value at the time of its the petitioner since both parties entered into their marriage without
dissolution.[74] bringing with them any property.

Applying Article 102 of the Family Code, the net profits requires On Conjugal Partnership Regime:
that we first find the market value of the properties at the time of the
Before we go into our disquisition on the Conjugal Partnership the ownership of which has been vested by law in the
Regime, we make it clear that Article 102(4) of the Family Code applies conjugal partnership.
in the instant case for purposes only of defining net profit. As earlier
explained, the definition of net profits in Article 102(4) of the Family (4) The debts and obligations of the conjugal
Code applies to both the absolute community regime and conjugal partnership shall be paid out of the conjugal assets. In
partnership regime as provided for under Article 63, No. (2) of the case of insufficiency of said assets, the spouses shall be
Family Code, relative to the provisions on Legal Separation. solidarily liable for the unpaid balance with their
separate properties, in accordance with the provisions of
Now, when a couple enters into a regime of conjugal paragraph (2) of Article 121.
partnership of gains under Article 142 of the Civil Code, the husband (5) Whatever remains of the exclusive properties
and the wife place in common fund the fruits of their separate property of the spouses shall thereafter be delivered to each of
and income from their work or industry, and divide equally, upon the them.
dissolution of the marriage or of the partnership, the net gains or benefits
obtained indiscriminately by either spouse during the marriage.[76] From
the foregoing provision, each of the couple has his and her own property (6) Unless the owner had been indemnified from
and debts. The law does not intend to effect a mixture or merger of those whatever source, the loss or deterioration of movables
debts or properties between the spouses. Rather, it establishes a used for the benefit of the family, belonging to either
complete separation of capitals.[77] spouse, even due to fortuitous event, shall be paid to said
spouse from the conjugal funds, if any.
Considering that the couple's marriage has been dissolved under
the Family Code, Article 129 of the same Code applies in the liquidation (7) The net remainder of the conjugal partnership
of the couple's properties in the event that the conjugal partnership of properties shall constitute the profits, which shall be
gains is dissolved, to wit: divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
Art. 129. Upon the dissolution of the conjugal marriage settlements or unless there has been a voluntary
partnership regime, the following procedure shall apply: waiver or forfeiture of such share as provided in this
Code.
(1) An inventory shall be prepared, listing
separately all the properties of the conjugal partnership (8) The presumptive legitimes of the common
and the exclusive properties of each spouse. children shall be delivered upon the partition in
accordance with Article 51.
(2) Amounts advanced by the conjugal
partnership in payment of personal debts and obligations (9) In the partition of the properties, the conjugal
of either spouse shall be credited to the conjugal dwelling and the lot on which it is situated shall, unless
partnership as an asset thereof. otherwise agreed upon by the parties, be adjudicated to
the spouse with whom the majority of the common
(3) Each spouse shall be reimbursed for the use children choose to remain. Children below the age of
of his or her exclusive funds in the acquisition of seven years are deemed to have chosen the mother,
property or for the value of his or her exclusive property, unless the court has decided otherwise. In case there is
no such majority, the court shall decide, taking into restitution of the value of such properties to their respective owners shall
consideration the best interests of said children. be made.[82]

(c) Subsequently, the couple's conjugal partnership shall pay the


In the normal course of events, the following are the steps in the debts of the conjugal partnership; while the debts and obligation of each
liquidation of the properties of the spouses: of the spouses shall be paid from their respective separate
properties. But if the conjugal partnership is not sufficient to pay all its
(a) An inventory of all the actual properties shall be made, debts and obligations, the spouses with their separate properties shall be
separately listing the couple's conjugal properties and their separate solidarily liable.[83]
properties.[78] In the instant case, the trial court found that the couple
has no separate properties when they married.[79] Rather, the trial (d) Now, what remains of the separate or exclusive properties of
court identified the following conjugal properties, to wit: the husband and of the wife shall be returned to each of them.[84] In the
instant case, since it was already established by the trial court that
1. coffee mill in Balongagan, Las Nieves, Agusan del the spouses have no separate properties,[85] there is nothing to
Norte; return to any of them. The listed properties above are considered part
of the conjugal partnership. Thus, ordinarily, what remains in the above-
2. coffee mill in Durian, Las Nieves, Agusan del Norte; listed properties should be divided equally between the spouses and/or
their respective heirs.[86] However, since the trial court found the
3. corn mill in Casiklan, Las Nieves, Agusan del Norte; petitioner the guilty party, his share from the net profits of the conjugal
partnership is forfeited in favor of the common children, pursuant to
4. coffee mill in Esperanza, Agusan del Sur; Article 63(2) of the Family Code. Again, lest we be confused, like in the
absolute community regime, nothing will be returned to the guilty party
5. a parcel of land with an area of 1,200 square meters in the conjugal partnership regime, because there is no separate
located in Tungao, Butuan City; property which may be accounted for in the guilty party's favor.

6. a parcel of agricultural land with an area of 5 hectares In the discussions above, we have seen that in both instances, the
located in Manila de Bugabos, Butuan City; petitioner is not entitled to any property at all. Thus, we cannot but
uphold the Decision dated October 10, 2005 of the trial court. However,
7. a parcel of land with an area of 84 square meters we must clarify, as we already did above, the Order dated January 8,
located in Tungao, Butuan City; 2007.

8. Bashier Bon Factory located in WHEREFORE, the Decision dated October 10, 2005 of the
Tungao, Butuan City.[80] Regional Trial Court, Branch 1 of Butuan City is AFFIRMED. Acting
on the Motion for Clarification dated July 7, 2006 in the Regional Trial
Court, the Order dated January 8, 2007 of the Regional Trial Court is
(b) Ordinarily, the benefit received by a spouse from the hereby CLARIFIED in accordance with the above discussions.
conjugal partnership during the marriage is returned in equal amount to
the assets of the conjugal partnership;[81] and if the community is SO ORDERED.
enriched at the expense of the separate properties of either spouse, a
SECOND DIVISION had not PPA illegally imposed one hundred percent (100%)
wharfage and berthing fees, and (2) the sum of Five Hundred
Thousand Pesos (P500,000.00) as attorneys fees. No
pronouncement was made as to costs of suit.
[G.R. No. 135639. February 27, 2002]
In G.R. No. 135639 TEFASCO assails the declaration of
validity of the government share and prays for reinstatement in
toto of the decision of the trial court. In G.R. No. 135826 PPA
TERMINAL FACILITIES AND SERVICES impugns the Amended Decision for awarding the said two (2)
CORPORATION, petitioner, vs. PHILIPPINE PORTS amounts for loss of private port usage fees as actual damages,
AUTHORITY and PORT MANAGER, and PORT plus attorney's fees.
DISTRICT OFFICER OF DAVAO CITY, respondents.
TEFASCO is a domestic corporation organized and existing
under the laws of the Philippines with principal place of business
at Barrio Ilang, Davao City. It is engaged in the business of
[G.R. No. 135826. February 27, 2002] providing port and terminal facilities as well as arrastre,
stevedoring and other port-related services at its own private port
at Barrio Ilang.
PHILIPPINE PORTS AUTHORITY and PORT MANAGER, and Sometime in 1975 TEFASCO submitted to PPA a proposal
PORT DISTRICT OFFICER OF DAVAO for the construction of a specialized terminal complex with port
CITY, petitioners, vs. TERMINAL FACILITIES AND facilities and a provision for port services in Davao City. To ease
SERVICES CORPORATION, respondent. the acute congestion in the government ports at Sasa and Sta.
Ana, Davao City, PPA welcomed the proposal and organized an
DECISION inter-agency committee to study the plan. The committee
DE LEON, JR., J.: recommended approval thereof and its report stated that -

TEFASCO Terminal is a specialized terminal complex. The


Before us are two (2) consolidated petitions for review, one
specialized matters intended to be captured are: (a) bananas in
filed by the Terminal Facilities and Services Corporation
consideration of the rate of spoilage; (b) sugar; (c) fertilizers; (d)
(TEFASCO) (G.R. No. 135639) and the other by the Philippine
specialized movement of beer in pallets containerized handling lumber
Ports Authority (PPA) (G.R. No. 135826), of the Amended
and plywood.
Decision[1] dated September 30, 1998 of the former Special
Second Division of the Court of Appeals in CA-G.R. CV No.
47318 ordering the PPA to pay TEFASCO: (1) Fifteen Million 3.2 Limitations of the government facilities -
Eight Hundred Ten Thousand Thirty-Two Pesos and Seven
The government port facilities are good for general cargoes only. Both
Centavos (P15,810,032.07) representing fifty percent
(50%) wharfage dues and Three Million Nine Hundred Sixty-One ports are not equipped to handle specialized cargoes like bananas and
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos container cargoes. Besides the present capacity, as well as the planned
(P3,961,964.06) representing thirty percent (30%) berthing fees improvements, cannot cope with the increasing volume of traffic in the
from 1977 to 1991, which amounts TEFASCO could have earned
area. Participation of the private sector, therefore, involving private At the bigger scale, more economic benefits in terms of more
financing should be encouraged in the area. employment, greater productivity, increased per capita income in
the Davao region, and in light of the limited financial resources of the
3.3 Project Viability - government for port development the TFSC proposal would be
beneficial to the country.
3.3.1 Technical Aspect - From the port operations point of view, the
project is technically feasible. It is within a well-protected harbor and On April 21, 1976 the PPA Board of Directors passed
it has a sufficient depth of water for berthing the ships it will Resolution No. 7 accepting and approving TEFASCO's project
service. The lack of back up area can be supplied by the 21-hectare proposal. PPA resolved to -
industrial land which will be established out of the hilly land area
which is to be scrapped and leveled to be used to fill the area for xxx [a]pprove, xxx the project proposal of the Terminal Facilities and
reclamation. Services Corporation, Inc. for the construction of specialized port
facilities and provision of port services in Davao City, subject to the
3.3.2 Economic Aspect - The international port of Sasa and the terms and conditions set forth in the report of the Technical Committee
domestic port of Sta. Ana are general cargo type ports. They are facing created by the Board in its meeting of January 30, 1975, and to the
serious ship and cargo congestion problems brought about mainly by usual government rules and regulations.
the faster growth of shipping industry than the development of the
ports. They do not possess the special cargo handling facilities which PPA relayed its acceptance of the project terms and
TFSC plans to put up at the proposed terminal. conditions to TEFASCO in the letter[2] dated May 7, 1976 of
Acting General Manager Mariano Nicanor which affirmed that -
xxx The proposed project expects to get a 31% market slice. It will
service domestic and foreign vessels. Main products to be handled We are pleased to inform you that the Board of Directors, Philippine
initially will be bananas in the export trade and beer in the domestic Ports Authority, approved the project proposal of the Terminal
traffic. Banana exporters in Davao, like Stanfilco and Philippine Facilities and Services Corporation to construct a specialized port
Packing Corporation have signified their intentions to use the facilities and provision of port services in Davao City as follows:
port. Negotiations between TFSC and banana exporters on whether the
former or the latter should purchase the mechanical loading equipment 1) Docking Facilities for Ocean Going and Interisland vessels
have not yet been formed up xxx. with containerized cargo.

Easing the problems at these two ports would result in savings on cost 2) Stevedoring and Arrastre for above.
of the operation as cargo storage and on damages and losses. It would
also give relief to passengers from time-delay, inconvenience and 3) Warehousing;
exposure to hazards in commuting between the pier and ship at anchor.
4) Container yard and warehouse for containerizing cargoes
Furthermore, it would redound to better utilization of the government or breaking up cargoes for containers.
piers, therefore greater revenue from port operations.
5) Bulk handling and silos for corn, in cooperation with the NGA.
6) Bulk handling for fertilizer. (5) That the applicant shall construct and complete the
structure under the proposed project within eighteen (18)
7) Bulk handling or conveyor system for banana exports. months after the approval of the permit, otherwise the
permit shall be null and void.
8) Bulk handling for sugar.
(6) That the facility shall handle general cargoes that are
9) Bonded warehousing. loaded as filler cargoes on bulk/container ships calling at
the facility.
The approval is subject to the terms and conditions set forth at
enclosure. (7) That the applicant shall build up its banana export traffic
to replace the probable loss of its container traffic five
You are hereby authorized to start work immediately taking into (5) years from now because of the plan of PPA to put up
account national and local laws and regulations pertaining to the a common user type container terminal at the port of
project construction and operation. Sasa.

The enclosure referred to in the letter above-quoted (8) That all charges payable to the Bureau of Customs will
stipulated the "Terms and Conditions of PPA Board Approval of continue to apply upon take over of port operations by
the Project Proposal,"[3] particularly - the PPA of the Port of Davao from the Bureau of
Customs and direct control and regulations of operations
(1) That all fees and/or permits pertinent to the construction of private port facilities in the general area of that port.
and operation of the proposed project shall be paid to
and/or secured from the proper authorities. Under the foregoing terms and conditions, TEFASCO
contracted dollar loans from private commercial institutions
(2) That the plans shall not be altered without the prior abroad to construct its specialized terminal complex with port
approval of the Bureau of Public Works in coordination facilities and thereafter poured millions worth of investments in
with the PPA. the process of building the port. Long after TEFASCO broke
ground with massive infrastructure work, the PPA Board curiously
(3) That [any] damage to public and private property arising passed on October 1, 1976 Resolution No. 50 under which
from the construction and operation of the project shall TEFASCO, without asking for one, was compelled to submit an
be the sole responsibility of the applicant-company. application for construction permit. Without the consent of
TEFASCO, the application imposed additional significant
(4) That the Director of Public Works shall be notified five conditions -
(5) days before the start of the construction works and
that the Director of Public Works or his representative (1) This Permit to Construct (PTC) will entitle the applicant to operate
shall be authorized to inspect the works and premises the facility for a period of fifteen (15) years, without jeopardy to
while the work is in progress and even after the negotiation for a renewal for a period not exceeding ten (10) years. At
completion thereof. the expiration of the permit, all improvements shall automatically
become the property of the Authority. Thereafter, any interested party,
including the applicant, may lease it under new conditions; (2) In the as Special Permit No. CO/CO-1-067802, under which more
event that the Foreshore Lease Application expires or is onerous conditions were foisted on TEFASCOs port
disapproved/canceled, this permit shall also be rendered null and void; operations.[4] In the purported permit appeared for the first time
xxx (7) All other fees and/or permits pertinent to the construction and the contentious provisions for ten percent (10%) government
operation of the proposed project shall be paid to and/or secured from share out of arrastre and stevedoring gross income and one
the proper authorities; xxx (9) Unless specifically authorized, no hundred percent (100%) wharfage and berthing charges, thus -
general cargo shall be handled through the facility; (10) All rates and
charges to be derived from the use of said facility or facilities shall be Pursuant to the provisions of Presidential Decree No. 857, otherwise
approved by the Authority; xxx (12) An application fee in the amount known as the Revised Charter of the Philippine Ports Authority, and
of one-tenth or one percent of the total estimated cost of the proposed upon due consideration of the formal written application and its
improvement/structure shall be paid upon advice; (13) Other enclosures in accordance with PPA Memorandum Order No. 21 dated
requirements of the law shall be complied by the applicant. May 27, 1977, PPA Administrative Order No. 22-77 dated December
9, 1977, and other pertinent policies and guidelines, a Special Permit is
NOTE: Subject further to the terms and conditions as approved by hereby granted to TERMINAL FACILITIES AND SERVICES
PPA Board under Resolution No. 7 of 21 April 1976, except that PPA CORPORATION (TEFASCO), with address at Slip 3, Pier 4, North
shall take over the role of the Bureau of Public Works and of the Harbor, Manila to provide its arrastre/stevedoring services at its own
Bureau of Customs stipulated in the said approval. private wharf located at Barrio Ilang, Davao City, subject to the
following conditions:
TEFASCO played along with this needless exercise as PPA
approved the awkward application in a letter stating - xxx xxx xxx

We are returning herewith your application for Permit to Construct 2. Grantee shall render arrastre/stevedoring services on
No. 77-19 dated 18 October 1977, duly approved (validation of the cargoes of vessels under the agency of Retla
original permit to construct approved by the PPA Board under Shipping/Transcoastal Shipping, Solid Shipping, Sea
Resolution No. 7 of 21 April 1976), for the construction of your port Transport and other commercial vessels which cannot
facilities in Bo. Ilang, Davao City, subject to the conditions stipulated be accommodated in government piers at PMU-Davao
under the approved permit and in accordance with the attached due to port congestion which shall be determined by the
approved set of plans and working drawings. Port Manager/Harbor Master/Port Operations Officer
whose decision shall be conclusive;
It is understood that this permit is still subject to the terms and
conditions under the original permit except that this Authority takes 3. Grantee shall promptly submit its latest certified financial
over the role of the Bureau of Public Works and of the Bureau of statement and all statistical and other data required by
Customs as stipulated thereon. the Authority from time to time;

The series of PPA impositions did not stop there. Two (2) 4. Grantee shall strictly comply with all applicable PPA rules
years after the completion of the port facilities and the and regulations now in force or to be promulgated
commencement of TEFASCO's port operations, or on June 10, hereafter and other pertinent rules and regulations
1978, PPA again issued to TEFASCO another permit, designated
promulgated by other agency of the government and cause at the discretion of the PPA General Manager or his duly
other applicable laws, orders or decrees; authorized representative.

5. Grantee shall remit to the government an amount Subsequent exactions of PPA included: (a) Admin. Order 09-
equivalent to ten (10%) percentum of the handling rates 81, s. 1981,[5] notifying all arrastre and stevedoring operators,
chargeable on similar cargo in government whether they do business in government owned port facilities,
piers/wharves within the jurisdiction of PMU-Davao on that special services income be subjected to "government share"
or before the 5th working day of every month provided, equivalent to ten percent (10%) thereof; and, (b) Memo. Circ. 36-
however, that in case of delay, grantee shall pay a 82, s. 1982,[6] mandating an assessment of one hundred percent
penalty of one (1%) percentum of the accumulated total (100%) wharfage dues on commercial and third-party cargoes
amount due for every day of delay; provided, further, regardless of extent of use of private port facilities and one
that said rate shall be reasonably adjusted if and when hundred percent (100%) berthing charges on every foreign
warranted by the financial conditions of the Grantee; vessel docking at private wharves loading or discharging
commercial or third-party cargoes. TEFASCO repeatedly asked
6. Grantee shall settle with the Authority its back accounts on PPA for extensions to pay these additional obligations and for
the 10% government share from the start of its reduction in the rates. But the PPA's response was final and non-
arrastre/stevedoring operation plus 6% legal interest per negotiable statements of arrears and current accounts and
annum as provided by law; threats of business closure in case of failure to pay them.[7] The
trial court summed up the documentary evidence on this point -
7. That cargoes and vessels diverted to TEFASCO wharf shall
be subject to 100% wharfage and berthing charges xxx [w]hen TEFASCO requested for the structuring of its account of
respectively; P3.5 million, resulting to a memorandum, issued by PPA General
Manager to its internal control, to verify the specific assessment of
8. Grantee shall hold the Authority free from any liability TEFASCO, coming out in the specific amount of P3,143,425.67 which
arising out of the maintenance and operation thereof; became a subject of TEFASCO various and series of letters-protest to
PPA, for reconsideration of its ultimatum, to enforce TEFASCOs back
9. Grantee shall not in any manner pose a competition with account, dated June 1, 1983, marked Exh. 32 for defendant, after a
any port or port facility owned by the government. series of letters for reconsideration of TEFASCO and reply of PPA,
Rates of charges shall in no case be lower than those marked Exh. 26 to 31 for the defendants, an ultimatum letter of PPA
prevailing at the Government Port of Davao. was issued followed by another series of letters of protest,
reconsideration and petition of TEFASCO and reply of PPA,
xxx xxx xxx correspondingly marked Exh. 40 51 for the defendants, until
ultimately, the execution of a memorandum of agreement, marked
This Special Permit is non-transferable and shall remain valid from the Exh. 52 for the defendant, dated February 10, 1984.
date of issuance hereof until December 31, 1978; provided, however,
that at any time prior to the expiration thereof, the same may be Most alarming was the receipt of defendants communication by
revoked for violation of any of the conditions herein set forth or for TEFASCO, in its letter dated June 1, 1983, a cease and desist order of
PPA for TEFASCO, to stop its commercial port operation xxx.[8]
On February 10, 1984 TEFASCO and PPA executed wharfage fees which TEFASCO could have earned as private
a Memorandum of Agreement (MOA) providing among others for port usage fee from 1977 to 1991 had PPA not collected one
(a) acknowledgment of TEFASCO's arrears in government share hundred percent (100%) of these fees; Two Hundred Forty-Eight
at Three Million Eight Hundred Seven Thousand Five Hundred Thousand Seven Hundred Twenty-Seven Pesos (P248,727.00)
Sixty-Three Pesos and Seventy-Five Centavos (P3,807,563.75) for dredging and blasting expenses; One Million Pesos
payable monthly, with default penalized by automatic withdrawal (P1,000,000.00) in damages for blatant violation of PPA
of its commercial private port permit and permit to operate cargo Resolution No. 7; and, Five Hundred Thousand Pesos
handling services; (b) reduction of government share from ten (P500,000.00) for attorneys fees, with twelve percent (12%)
percent (10%) to six percent (6%) on all cargo handling and interest per annum on the total amount awarded.[11]
related revenue (or arrastre and stevedoring gross income); (c)
PPA appealed the decision of the trial court to the Court of
opening of its pier facilities to all commercial and third-party
Appeals. The appellate court in its original decision recognized
cargoes and vessels for a period coterminous with its foreshore
the validity of the impositions and reversed in toto the decision of
lease contract with the National Government; and, (d) tenure of
the trial court.[12] TEFASCO moved for reconsideration which the
five (5) years extendible by five (5) more years for TEFASCO's
Court of Appeals found partly meritorious. Thus the Court of
permit to operate cargo handling in its private port facilities. In
Appeals in its Amended Decision partially affirmed the RTC
return PPA promised to issue the necessary permits for
decision only in the sense that PPA was directed to pay
TEFASCOs port activities. TEFASCO complied with the MOA
TEFASCO (1) the amounts of Fifteen Million Eight Hundred Ten
and paid the accrued and current government share.[9]
Thousand Thirty-Two Pesos and Seven Centavos
On August 30, 1988 TEFASCO sued PPA and PPA Port (P15,810,032.07) representing fifty percent (50%) wharfage fees
Manager, and Port Officer in Davao City for refund of government and Three Million Nine Hundred Sixty-One Thousand Nine
share it had paid and for damages as a result of alleged illegal Hundred Sixty-Four Pesos and Six Centavos (P3,961,964.06)
exaction from its clients of one hundred percent (100%) berthing representing thirty percent (30%) berthing fees which TEFASCO
and wharfage fees. The complaint also sought to nullify could have earned as private port usage fee from 1977 to 1991
the February 10, 1984 MOA and all other PPA issuances had PPA not illegally imposed and collected one hundred percent
modifying the terms and conditions of the April 21, (100%) of wharfage and berthing fees and (2) Five Hundred
1976 Resolution No. 7 above-mentioned.[10] Thousand Pesos (P500,000.00) for attorneys fees. The Court of
Appeals held that the one hundred percent (100%) berthing and
The RTC, Branch 17, Davao City, in its decision dated July
wharfage fees were unenforceable because they had not been
15, 1992 in Civil Case No. 19216-88, ruled for TEFASCO, (a)
approved by the President under Secs. 19 and 20, P.D. No. 857,
nullifying the MOA and all PPA issuances imposing government
and discriminatory since much lower rates were charged in other
share and one hundred percent (100%) berthing and wharfage
private ports as shown by PPA issuances effective 1995 to
fees or otherwise modifying PPA Resolution No. 7, and, (b)
1997. Both PPA and TEFASCO were unsatisfied with this
awarding Five Million Ninety-Five Thousand Thirty Pesos and
disposition hence these petitions.
Seventeen Centavos (P5,095,030.17) for reimbursement of
government share and Three Million Nine Hundred Sixty-One In G.R. No. 135639 TEFASCO prays to reinstate in toto the
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos decision of the trial court. Its grounds are: (a) PPA Resolution No.
(P3,961,964.06) for thirty percent (30%) berthing charges and 7 and the terms and conditions thereunder constitute a contract
Fifteen Million Eight Hundred Ten Thousand Thirty-Two Pesos that PPA could not change at will; (b) the MOA between PPA and
and Seven Centavos (P15,810,032.07) for fifty percent (50%) TEFASCO indicating the schedule of TEFASCO arrears and
reducing the rate of government share is void for absence of The international port of Sasa and the domestic port of Sta. Ana are
consideration; and, (c) government share is neither authorized by general cargo type ports. They are facing serious ship and cargo
PPA Resolution No. 7 nor by any law, and in fact, impairs the congestion problems brought about mainly by the faster growth of
obligation of contracts. shipping industry than the development of the ports. They do not
possess the special cargo handling facilities which TFSC plans to put
In G.R. No. 135826 PPA seeks to set aside the award of
up at the proposed terminal.[13]
actual damages for wharfage and berthing fees and for attorneys
fees. PPA anchors its arguments on the following: (a) that its
It is true that under P.D. No. 857 (1975) as amended,[14] the
collection of one hundred percent (100%) wharfage and berthing
construction and operation of ports are subject to licensing
fees is authorized by Secs. 6 (b, ix) and 39 (a), P.D. No. 857,
regulations of the PPA as public utility.[15] However, the instant
under which the imposable rates for such fees are within the sole
case did not arise out of pure beneficence on the part of the
power and authority of PPA; (b) that absence of evidentiary
relevance of PPA issuances effective 1995 to 1997 reducing government where TEFASCO would be compelled to pay
ordinary license and permit fees. TEFASCO accepted and
wharfage, berthing and port usage fees in private ports; (c) that
TEFASCO's lack of standing to claim alleged overpayments of performed definite obligations requiring big investments that
made up the valuable consideration of the project. The inter-
wharfage and berthing fees; and, (d) that lack of legal basis for
the award of fifty percent (50%) wharfage and thirty percent agency committee report that recommended approval of
TEFASCO port construction and operation estimated
(30%) berthing fees as actual damages in favor of TEFASCO for
the period from 1977 to 1991, and for attorneys fees. investments at Sixteen Million Pesos (P16,000,000.00)
(1975/1976 price levels) disbursed within a construction period of
In a nutshell, the issues in the two (2) consolidated petitions one year[16] and covered by foreign loans of Two Million Four
are centered on: (a) the character of the obligations between Hundred Thirty-Four Thousand US Dollars (US$2,434,000.00)
TEFASCO and PPA; (b) the validity of the collection by PPA of with interests of up to Ten Million Nine Hundred Sixty-Five
one hundred percent (100%) wharfage fees and berthing Thousand Four Hundred Sixty-Five Pesos (P10,965,465.00) for
charges; (c) the propriety of the award of fifty percent (50%) the years 1979 to 1985.[17] In 1987 the total investment of
wharfage fees and thirty percent (30%) berthing charges as TEFASCO in the project was valued at One Hundred Fifty-Six
actual damages in favor of TEFASCO for the period from 1977 to Million Two Hundred Fifty-One Thousand Seven Hundred Ninety-
1991; (d) the legality of the imposed government share and the Eight Pesos (P156,251,798.00).[18] The inter-agency committee
MOA stipulating a schedule of TEFASCO's arrears for and report also listed the costly facilities TEFASCO would build, and
imposing a reduced rate of government share; and, (e) the which in fact it has already built -
propriety of the award of attorneys fees and damages.
xxx The terminal complex will provide specialized mechanical cargo
Firstly, it was not a mere privilege that PPA bestowed upon
handling facilities for bananas, sugar, beer, grain and fertilizer, and
TEFASCO to construct a specialized terminal complex with port
containerized cargo operations. The marginal wharf could
facilities and provide port services in Davao City under PPA
accommodate two ocean-going ships and one inter-island vessel at a
Resolution No. 7 and the terms and conditions thereof. Rather,
time. The essential structures and facilities to be provided are: (1) 400-
the arrangement was envisioned to be mutually beneficial, on one
meter concrete wharf; (2) Back-up area (3.8 hectare reclaimed area
hand, to obtain business opportunities for TEFASCO, and on the
plus a 21-hectare inland industrial zone); (3) Two warehouses with
other, enhance PPA's services -
total floor area of 5,000 sq. meters; (4) mechanized banana loading necessarily implied, for in no other way could it rehabilitate, normalize
equipment; (5) container yard.[19] and stabilize a distressed bank. xxx

With such considerable amount of money spent in reliance The deception practiced by the Central Bank, not only on petitioners
upon the promises of PPA under Resolution No. 7 and the terms but on its own management team, was in violation of Articles 1159
and conditions thereof, the authorization for TEFASCO to build and 1315 of the Civil Code of the Philippines:
and operate the specialized terminal complex with port facilities
assumed the character of a truly binding contract between the Art. 1159. Obligations arising from contracts have the force of law
grantor and the grantee.[20] It was a two-way advantage for both between the contracting parties and should be complied with in good
TEFASCO and PPA, that is, the business opportunities for the faith.
former and the decongestion of port traffic in Davao City for the
latter, which is also the cause of consideration for the existence Art. 1315. Contracts are perfected by mere consent, and from that
of the contract. The cases of Ramos v. Central Bank of moment the parties are bound not only to the fulfillment of what has
the Philippines[21] and Commissioner of Customs v. Auyong been expressly stipulated but also to all the consequences which,
Hian[22] are deemed precedents. In Ramos, the Central Bank according to their nature, may be in keeping with good faith, usage and
(CB) committed itself to support the Overseas Bank of Manila law.[23]
(OBM) and avoid its liquidation in exchange for the execution of
a voting trust agreement turning over the management of OBM Auyong Hian involved an importation of old newspapers in
to CB and a mortgage of its properties to CB to cover OBMs four (4) shipments under a "no-dollar" arrangement pursuant to a
overdraft balance. This agreement was reached in CBs capacity license issued by the Import Control Commission. When the last
as the regulatory agency of banking operations. After OBM shipment arrived in Manila, the customs authorities seized the
accepted and performed in good faith its obligations, we deemed importation on the ground that it was made without the license
as perfected contract the relation between CB and OBM from required by Central Bank Circular No. 45.While the seizure
which CB could not retreat and in the end prejudice OBM and its proceedings were pending before the Collector of Customs, the
depositors and creditors - President of the Philippines through its Cabinet canceled the
aforesaid license for the reason that it was illegally issued "in that
Bearing in mind that the communications, xxx as well as the voting no fixed date of expiration is stipulated." On review, this Court
trust agreement xxx had been prepared by the CB, and the well-known held -
rule that ambiguities therein are to be construed against the party that
caused them, the record becomes clear that, in consideration of the xxx [W]hile the Cabinet, acting for the President, can pass on the
execution of the voting trust agreement by the petitioner stockholders validity of a license issued by the Import Control Commission, that
of OBM, and of the mortgage or assignment of their personal power cannot be arbitrarily exercised. The action must be founded on
properties to the CB, xxx the CB had agreed to announce its readiness good ground or reason and must not be capricious or whimsical. This
to support the new management in order to allay the fears of depositors principle is so clear to require further elaboration.
and creditors xxx and to stave off liquidation by providing adequate
funds for the rehabilitation, normalization and stabilization of the xxx In fact, if the cancellation were to prevail, the importer would
OBM, in a manner similar to what the CB had previously done with stand to lose the license fee he paid amounting to P12,000.00, plus the
the Republic Bank xxx. While no express terms in the documents refer value of the shipment amounting to P21,820.00. This is grossly
to the provision of funds by CB for the purpose, the same is
inequitable. Moreover, "it has been held in a great number of cases undertaker who wanted to erect on his land a stable to be used
that a permit or license may not arbitrarily be revoked xxx where, on in connection therewith. He then applied to the board of health for
the faith of it, the owner has incurred material expense." a license to permit him to occupy and use the building when
completed for the stabling of eight (8) horses. His application was
It has also been held that where the licensee has acted under the granted and a license was issued to him permitting the exercise
license in good faith, and has incurred expense in the execution of it, of this privilege. Upon receiving it, he at once had plans prepared
by making valuable improvements or otherwise, it is regarded in and began the erection of a stable on a site from which he had,
equity as an executed contract and substantially an easement, the at a pecuniary loss, removed another building. After the work had
revocation of which would be a fraud on the licensee, and therefore the begun but before its completion, the board of health acting on a
licensor is estopped to revoke it xxx It has also been held that the petition of residents in the immediate vicinity rescinded their
license cannot be revoked without reimbursing the licensee for his former vote and canceled the license. The court held -
expenditures or otherwise placing him in status quo.[24]
xxxUpon application for permission to erect a stable, which, in the
For a regulatory permit to be impressed with contractual absence of a restricting statute, would be a legitimate improvement in
character we held in Batchelder v. Central Bank[25] that the the enjoyment of his property, the applicant is entitled to know the full
administrative agency in issuing the permit must have assumed measure of immunity that can be granted to him before making the
such obligation on itself. The facts certainly bear out the expenditure of money required to carry out his purpose. A resort to the
conclusion that PPA passed Resolution No. 7 and the terms and general laws relating to the subject, or to ordinances or regulations
conditions thereof with a view to decongesting port traffic in made pursuant to them, should furnish him with the required
government ports in Davao City and engaging TEFASCO to information. When this has been obtained, he has a right to infer that
infuse its own funds and skills to operate another port therein. As he can safely act, with the assurance that, so long as he complies with
acceptance of these considerations and execution thereof the requirements under which it is proposed to grant the privilege, he
immediately followed, it is too late for PPA to change the rules of has a constitutional claim to protection, until the legislature further
engagement with TEFASCO as expressed in the said Resolution restricts or entirely abolishes the right bestowed. A license should not
and other relevant documents. be subjected to the uncertainties that constantly would arise if
unauthorized limitations, of which he can have no knowledge, are
The terms and conditions binding TEFASCO are only those subsequently and without notice to be read into his license, at the
enumerated or mentioned in the inter-agency committee report, pleasure of the licensing board. Besides, all reasonable police
PPA Resolution No. 7 and PPA letter dated May 7, 1976 and its regulations enacted for the preservation of the public health or
enclosure. With due consideration for the policy that laws of the morality, where a penalty is provided for their violation, while they
land are written into every contract,[26] the said documents stand may limit or prevent the use or enjoyment of property except under
to be the only source of obligations between the parties. That certain restrictions, and are constitutional, create statutory
being the case, it was arbitrary, unreasonable and unfair for PPA
misdemeanors, which are not to be extended by implication. xxx. It
to add new burdens and uncertainties into their agreement of was not within the power of the board of health, even after a hearing,
which TEFASCO had no prior knowledge even in the context of
in the absence of an authority conferred upon them by legislative
regulation.
sanction, to deprive him of the privilege they had unreservedly
Lowell v. Archambault[27] is persuasive on this issue. In that granted.[28]
case, the defendant was engaged in the business of an
The record shows that PPA made express representations to reduced the number of vehicles which appellant Kisner was
TEFASCO that it would authorize and support its port project authorized to operate under his certificate of convenience and
under clear and categorical terms and conditions of an necessity when no limit was stipulated therein, it was ruled -
envisioned contract. TEFASCO complied with its obligation which
ultimately resulted to the benefit of PPA. And the PPA accepted It appears from the record in this case that after the issuance of the
the project as completed and authorized TEFASCO to operate initial certificate the appellant took steps to procure vehicles in
the same. Under these circumstances, PPA is estopped from addition to the one he already owned. He changed his position in
reneging on its commitments and covenants as exclusively reliance upon the original certificate authorizing him to operate an
contained in the inter-agency committee report, PPA Resolution unlimited number of vehicles. xxx For the purpose of due process
No. 7 and PPA letter dated May 7, 1976 and its enclosure. As this analysis, a property interest includes not only the traditional notions of
Court explained in Ramos v. Central Bank of the Philippines - [29] real and personal property, but also extends to those benefits to which
an individual may be deemed to have a legitimate claim of entitlement
xxx[A]n estoppel may arise from the making of a promise even though under existing rules and regulations. xxx The right of the appellant in
without consideration, if it was intended that the promise should be the case at bar to operate more than one vehicle under the certificate of
relied upon and in fact it was relied upon, and if a refusal to enforce it convenience and necessity, as originally issued, clearly constituted a
would be virtually to sanction the perpetration of fraud or would result benefit to the appellant and that benefit may be deemed to be a
in other injustice. In this respect, the reliance by the promisee is legitimate claim of entitlement under existing rules and regulations.
generally evidenced by action or forbearance on his part, and the idea
has been expressed that such action or forbearance would reasonably Even if PPA granted TEFASCO only a license to construct
have been expected by the promisor. xxx and operate a specialized complex terminal with port facilities, the
fact remains that PPA cannot unilaterally impose conditions that
But even assuming arguendo that TEFASCO relied upon a find no basis in the inter-agency committee report, PPA
mere privilege granted by PPA, still the terms and conditions Resolution No. 7 and PPA letter dated May 7, 1976 and its
between them as written in the documents approving enclosure.
TEFASCO's project proposal should indubitably remain the
Secondly, we hold that PPA's imposition of one hundred
same. Under traditional form of property ownership, recipients of
percent (100%) wharfage fees and berthing charges is void. It is
privileges or largesses from the government could be said to have
very clear from P.D. No. 857 as amended that wharfage and
no property rights because they possessed no traditionally
berthing rates collectible by PPA "upon the coming into operation
recognized proprietary interest therein. The cases of Vinco v.
of this Decree shall be those now provided under Parts 1, 2, 3
Municipality of Hinigaran[30] and Pedro v. Provincial Board of
and 6 of Title VII of Book II of The Tariff and Customs Code, until
Rizal[31] holding that a license to operate cockpits would be a
such time that the President upon recommendation of the Board
mere privilege belonged to this vintage. But the right-privilege
may order that the adjusted schedule of dues are in
dichotomy came to an end when courts realized that individuals
effect."[34] PPA cannot unilaterally peg such rates but must rely
should not be subjected to the unfettered whims of government
on either The Tariff and Customs Code or the quasi-legislative
officials to withhold privileges previously given them.[32] Indeed to
issuances of the President in view of the legislative prerogative
perpetuate such distinction would leave the citizens at the mercy
of rate-fixing.[35]
of State functionaries, and worse, threaten the liberties protected
by the Bill of Rights. Thus in Kisner v. Public Service Accordingly, P.D. No. 441 (1974) amending The Tariff and
Commission[33] wherein the US Public Service Commission Customs Code fixed wharfage dues at fixed amounts per
specified quantity brought into or involving national ports or at fifty succeeding sections. The owner, agent, operator or master of the vessel
percent (50%) of the rates provided for herein in case the articles is liable for this charge.
imported or exported from or transported within the Philippines
are loaded or unloaded offshore, in midstream, or in private Petitioner Commissioner of Customs contends that the government has
wharves where no loading or unloading facilities are owned and the authority to impose and collect berthing fees whether a vessel
maintained by the government. Inasmuch as the TEFASCO port berths at a private pier or at a national port. On the other hand, private
is privately owned and maintained, we rule that the applicable respondent argues that the right of the government to impose berthing
rate for imported or exported articles loaded or unloaded thereat fees is limited to national ports only.
is not one hundred percent (100%) but only fifty percent (50%) of
the rates specified in P.D. No. 441. The governing law classifying ports into national ports and municipal
ports is Executive Order No. 72, Series of 1936 (O.G. Vol. 35, No. 6,
As regard berthing charges, this Court has ruled
pp. 65-66). A perusal of said executive order discloses the absence of
in Commissioner of Customs v. Court of Tax
[36] the port of Kiwalan in the list of national ports mentioned therein.
Appeals that "subject vessels, not having berthed at a national
port but at the Port of Kiwalan, which was constructed, operated,
Furthermore, Paragraph 1 of Executive Order No. 72 expressly
and continues to be maintained by private respondent xxx are not
provides that the improvement and maintenance of national ports shall
subject to berthing charges, and petitioner should refund the
be financed by the Commonwealth Government, and their
berthing fees paid by private respondent." The berthing facilities
administration and operation shall be under the direct supervision and
at Port of Kiwalan were constructed, improved, operated and
control of the Insular Collector of Customs. It is undisputed that the
maintained solely by and at the expense of a private corporation,
the Iligan Express. On various dates, vessels using the berthing port of Kiwalan was constructed and improved and is operated and
facilities therein were assessed berthing fees by the Collector of maintained solely by and at the expense of the Iligan Express
Customs which were paid by private respondent under Corporation, and not by the National Government of the Republic or
protest. We nullified the collection and ordered their refund - any of its agencies or instrumentalities. xxx The port of Kiwalan not
being included in the list of national ports appended to Customs
The only issue involved in this petition for review is: Whether a Memorandum Circular No. 33-73 nor in Executive Order No. 72, it
vessel engaged in foreign trade, which berths at a privately owned follows inevitably as a matter of law and legal principle that this Court
wharf or pier, is liable to the payment of the berthing charge under may not properly consider said port as a national port. To do otherwise
Section 2901 of the Tariff and Customs Code, which, as amended by would be to legislate on our part and to arrogate unto ourselves powers
Presidential Decree No. 34, reads: not conferred on us by the Constitution. xxx

Sec. 2901. Definition. - Berthing charge is the amount assessed against Plainly, therefore, the port of Kiwalan is not a national port. xxx
a vessel for mooring or berthing at a pier, wharf, bulk-head-wharf,
river or channel marginal wharf at any national port in the Philippines; Section 2901 of the Tariff and Customs Code prior to its amendment
or for mooring or making fast to a vessel so berthed; or for coming or and said section as amended by Presidential Decree No. 34 are
mooring within any slip, channel, basin, river or canal under the hereunder reproduced with the amendments duly highlighted:
jurisdiction of any national port of the Philippines: Provided, however,
That in the last instance, the charge shall be fifty (50%) per cent of Sec. 2901. Definition. - Berthing charge is the amount assessed against
rates provided for in cases of piers without cargo shed in the a vessel for mooring or berthing at a pier, wharf, bulkhead-wharf, river
or channel marginal wharf at any port in the Philippines; or for national ports. The berthing fees imposed upon vessels berthing at
mooring or making fast to a vessel so berthed; or for coming or national ports are applied by the national government for the
mooring within any slip, channel, basin, river or canal under the maintenance and repair of said ports. The national government does
jurisdiction of any port of the Philippines (old TCC). not maintain municipal ports which are solely maintained by the
municipalities or private entities which constructed them, as in the
Sec. 2901. Definition. - Berthing charge is the amount assessed a case at bar. Thus, no berthing charges may be collected from vessels
vessel for mooring or berthing at a pier, wharf, bulkhead-wharf, river moored at municipal ports nor may berthing charges be imposed by a
or channel marginal wharf AT ANY NATIONAL PORT IN THE municipal council xxx.[37]
PHILIPPINES; for mooring or making fast to a vessel so berthed; or
for coming or mooring within any slip, channel, basin, river or canal PPA has not cited - nor have we found - any law creating
under the jurisdiction of ANY NATIONAL port of the Philippines; the TEFASCO Port as a national port or converting it into
Provided, HOWEVER, THAT IN THE LAST INSTANCE, THE one. Hence, following case law, we rule that PPA erred in
CHARGE SHALL BE FIFTY (50%) PER CENT collecting berthing fees from vessels that berthed at the privately
OF RATES PROVIDED FOR IN CASES OF PIERS WITHOUT funded port of petitioner TEFASCO.
CARGO SHED IN THE SUCCEEDING SECTIONS. (emphasis in
It also bears stressing that one hundred percent (100%)
the original).
wharfage dues and berthing charges are void for failing to
comply with Sec. 19, P.D. No. 857[38] as amended, requiring
It will thus be seen that the word national before the word port is
presidential approval of any increase or decrease of such dues.
inserted in the amendment. The change in phraseology by amendment
of a provision of law indicates a legislative intent to change the In Philippine Interisland Shipping Association of the
meaning of the provision from that it originally had (Agpalo, supra, p. Philippines v. CA[39] we ruled that PPA cannot override the
76). The insertion of the word national before the word port is a clear statutory rates for dues by lowering rates of pilotage fees and
indication of the legislative intent to change the meaning of Section leaving the fees to be paid for pilotage to agreement of parties,
2901 from what it originally meant, and not a mere surplusage as and further stated that -
contended by petitioner, in the sense that the change merely affirms
what customs authorities had been observing long before the law was There is, therefore, no legal basis for PPA's intransigence, after failing
amended (p. 18, Petition). It is the duty of this Court to give meaning to get the new administration of President Aquino to revoke the order
to the amendment. It is, therefore, our considered opinion that under by issuing its own order in the form of A.O. NO. 02-88. It is
Section 2901 of The Tariff and Customs Code, as amended by noteworthy that if President Marcos had legislative power under
Presidential Decree No. 34, only vessels berthing at national ports are Amendment No. 6 of the 1973 Constitution so did President Aquino
liable for berthing fees. It is to be stressed that there are differences under the Provisional (Freedom) Constitution who could, had she
between national ports and municipal ports, namely: (1) the thought E.O. No. 1088 to be a mere political gimmick, have just as
maintenance of municipal ports is borne by the municipality, whereas easily revoked her predecessor's order. It is tempting to ask if the
that of the national ports is shouldered by the national government; (2) administrative agency would have shown the same act of defiance of
municipal ports are created by executive order, while national ports are the President's order had there been no change of administration. What
usually created by legislation; (3) berthing fees are not collected by the this Court said in La Perla Cigar and Cigarette Factory v.
government from vessels berthing at municipal ports, while such Capapas, mutatis mutandis, - may be applied to the cases at bar:
berthing fees are collected by the government from vessels moored at
Was it within the powers of the then Collector Ang-angco to refuse to privately owned port. It is aggravated by the fact that these
collect the duties that must be paid? That is the crucial point of unlawful rates were collected by PPA long after the port facilities
inquiry. We hold that it was not. of TEFASCO had been completed and functioning. Considering
these pleaded facts, TEFASCOs cause of action has been
Precisely, he had to give the above legal provisions, quite explicit in sufficiently alleged and proven. We quote with approval the
character, force and effect. His obligation was to collect the revenue following ruling of the Court of Appeals -
for the government in accordance with existing legal provisions,
executive agreements and executive orders certainly not excluded. He xxx As earlier stated, TEFASCO is only trying to recover income it
would not be living up to his official designation if he were permitted has to forego because of the excessive collections imposed by PPA. By
to act otherwise. He was not named Collector of Customs for nothing doing what it was prohibited to do under an existing law, PPA cannot
be allowed to enjoy the fruits of its own illegal act. To be sure,
Certainly, if the President himself were called upon to execute the laws TEFASCO suffered real damage as a result of such illegal act
faithfully, a Collector of Customs, himself a subordinate executive requiring indemnification xxx.[41]
official, cannot be considered as exempt in any wise from such an
obligation of fealty. Similarly, if the President cannot suspend the There is also no basis for PPAs assertion that there was lack
operation of any law, it would be presumptuous in the extreme for one of evidence to support the award in favor of TEFASCO of Fifteen
in the position of then Collector Ang-angco to consider himself as Million Eight Hundred Ten Thousand Thirty-Two Pesos and
possessed of such a prerogative[40] Seven Centavos (P15,810,032.07) representing fifty percent
(50%) wharfage dues and Three Million Nine Hundred Sixty-One
Thirdly, PPA argues that the courts a quo wrongly awarded Thousand Nine Hundred Sixty-Four Pesos and Six Centavos
to TEFASCO fifty percent (50%) and thirty percent (30%) of the (P3,961,964.06) for thirty percent (30%) berthing charges from
wharfage dues and berthing charges, respectively, as actual 1977 to 1991. According to the appellate court, the determination
damages representing private port usage fees from 1977 to was based on the "actual summarized list of cargoes and vessels
1991. It claims that TEFASCO has no cause of action to ask for which went through TEFASCOs port, which were under
a portion of these fees since they were collected from "the owner, obligation to pay usage fees, multiplied by the applicable tariff
agent, operator or master of the vessel" for the berthing charge rates."[42] The trial court explained in more detail the preponderant
and "the owner or consignee of the article, or the agent of evidence for the judgment -
either" for the wharfage dues.
Another harassment is the issuance of Memorandum Circular No. 36-
We find no merit in this argument. The cause of action of 82, authorizing collection of 100% wharfage fees, instead of only 50%
TEFASCO is the injury it suffered as a result of the illegal and also 100% berthing fees, instead of only 70% as provided for in
imposition on its clientele of such dues and charges that should PD 441, marked Exh. LL for plaintiff, and a copy of Letter of
have otherwise gone to it as private port usage fee. TEFASCO is Instruction No. 8001-A, marked Exh. NN for plaintiff, in the process,
asserting injury to its right to collect valuable consideration for the the total collection of PPA for wharfage fees, amounted
use of its facilities and wrongdoing on the part of PPA prejudicing
to P10,582,850.00 and berthing fee, amounted to P6,997,167.00 in the
such right. This is especially true in the light of PPAs practice of latter case, berthing fee collected was marked Exh. PP for plaintiff,
collecting one hundred percent (100%) of the wharfage and otherwise if PPA collected only 70% as provided, it could have
berthing dues by cornering the cargoes and vessels, as it were, collected only P4,898,018.03, equally TEFASCO could have earned
even before they were landed and berthed at TEFASCOs
the remainder of P2,099,150.90 while in the case of wharfage fee, if damaged by the loss of profits which he might with reasonable
PPA collected only 50%, TEFASCO would have earned the other half certainty have anticipated but for the defendants wrongful act, he is
of P5,291,042.00, 50% by way of rentals. xxx entitled to recover.[46]

In cases of berthing and wharfage fees prior to the issuance of the Applying the test aforequoted, we find that TEFASCO has
injunction order from this court, PPA charges 100% the totality or proved with clear and convincing evidence its loss of wharfage
summary of claims from PPA, from 1977 to 1991, was shown and and berthing fees. There was basis for the courts a quo in
marked Exhibit KKK and submarkings, showing TEFASCO is awarding to TEFASCO, as actual damages, the sums equivalent
supposed to collect, if PPA collects only 50% wharfage, the other 50% to fifty percent (50%) and thirty percent (30%) of the wharfage
goes with TEFASCO in case of berthing 70%, the remainder of 30% dues and berthing charges, respectively. It has not been denied
could have been collected by TEFASCO.[43] that TEFASCO was forced to reluctantly let go of such fees to
avoid the unwise business practice of financially overburdening
Under Arts. 2199 and 2200 of the Civil Code, actual or the users of its port by requiring them to pay beyond one hundred
compensatory damages are those awarded in satisfaction of or percent (100%) of such dues. It has not also been disproved that
in recompense for loss or injury sustained.[44] They proceed from this loss of TEFASCO was the direct result of the collection of one
a sense of natural justice and are designed to repair the wrong hundred percent (100%) wharfage and berthing dues by PPA, an
done. In Producers Bank of the Philippines v. CA[45] we succinctly imposition that left nothing more for TEFASCO to charge for the
explain the kinds of actual damages, thus- use of its port and terminal facilities. Consequently, there is merit
in TEFASCO's claim that had the PPA imposition been limited to
There are two kinds of actual or compensatory damages: one is the the fifty percent (50%) wharfage dues and seventy percent (70%)
loss of what a person already possesses, and the other is the failure to berthing charges, TEFASCO could have received the remainder
receive as a benefit that which would have pertained to him x x x. In as port usage fees since the amounts were disbursed by its
the latter instance, the familiar rule is that damages consisting of clients for that purpose. Significantly, in regard to berthing
unrealized profits, frequently referred as ganacias charges, TEFASCO's cause
frustradas or lucrum cessans, are not to be granted on the basis of of action and evidence presented before the trial court as well as
mere speculation, conjecture, or surmise, but rather by reference to its assigned error on appeal on that point were limited to thirty
some reasonably definite standard such as market value, established percent (30%) of such charges.
experience, or direct inference from known circumstances xxx.
Fourthly, we also declare void the imposition by PPA of ten
percent (10%), later reduced to six percent (6%), government
It is not necessary to prove with absolute certainty the share out of arrastre and stevedoring gross income of
amount of ganacias frustradas or lucrum cessans. In Producers TEFASCO. This exaction was never mentioned in the contract,
Bank of the Philippines we ruled that - much less is it a binding prestation, between TEFASCO and
PPA. What was clearly stated in the terms and conditions
xxx the benefit to be derived from a contract which one of the parties appended to PPA Resolution No. 7 was for TEFASCO to pay
has absolutely failed to perform is of necessity to some extent, a matter and/or secure from the proper authorities "all fees and/or permits
of speculation, but the injured party is not to be denied for this reason pertinent to the construction and operation of the proposed
alone. He must produce the best evidence of which his case is project." The government share demanded and collected from
susceptible and if that evidence warrants the inference that he has been the gross income of TEFASCO from its arrastre and stevedoring
activities in TEFASCO's wholly owned port is certainly not a fee ports. In passing, we believe that this impost is more in
or in any event a proper condition in a regulatory consonance with the description of government share as
permit. Rather it is an onerous "contractual stipulation"[47] which consideration for the "supervision inherent in the upgrading and
finds no root or basis or reference even in the contract improvement of port operations, of which said services are an
aforementioned. integral part."[50]
We stress that the cause of the contract between TEFASCO We do not also agree that TEFASCO subsequently acceded
and PPA was, on the part of the former, to engage in the business to paying the government share in its gross income from its
of operating its privately owned port facilities, and for the latter, to arrastre and stevedoring operations, and in recognizing arrears
decongest port traffic in Davao City and concomitantly to for such charge. The Memorandum of Agreement (MOA) which it
enhance regional trade. The records of the project acceptance subsequently signed with PPA did not give TEFASCO any benefit
made by PPA indicate that the contract was executed not to earn so that we cannot conclude that there was indeed a voluntary
income for PPA or the government as justification for the settlement between them. Rather it could be described aptly as
subsequent and unfair imposition of government share in the an imposition under actual threats of closure of TEFASCO's
arrastre and stevedoring gross income of TEFASCO. Hence this port. Verily the MOA was meant to cloak semblance of validity
charge was obviously an after-thought conceived by PPA only upon that particular charge since there was nothing in the original
after the TEFASCO port had already begun its operations. The TEFASCO-PPA contract authorizing the PPA to collect any share
sharing scheme only meant that PPA would piggy back in the gross income of TEFASCO in its arrastre and stevedoring
unreasonably on the substantial investment and labor of operations.
TEFASCO. As the scheme was subsequently stipulated on
The MOA is invalid for want of consideration and
percentage of gross income, it actually penalized TEFASCO for
consent.[51] As such, it is an invalid novation[52] of the original
its hand work and substantial capital expenditures in the
agreement between TEFASCO and PPA as embodied in the
TEFASCO port and terminal.
inter-agency committee report, PPA Resolution No. 7 and PPA
Moreover, PPA is bereft of any authority to letter dated May 7, 1976 and its enclosure. Truly, the MOA was a
impose whatever amount it pleases as government share in the set of stipulations executed under undue pressure on TEFASCO
gross income of TEFASCO from its arrastre and stevedoring of permanent closure of its port and terminal. As the TEFASCO
operations. As an elementary principle of law, license taxation investment was worth millions of dollars in loans and equities,
must not be "so unreasonable to show a purpose to prohibit a PPA's posture of prohibiting it from engaging in the bulk of its
business which is not itself injurious to public health or business presented it with no reasonable freedom of choice but
morals."[48] In the case at bar, the absurd and confiscatory to accept and sign the MOA. Furthermore, the MOA suffers from
character of government share is convincingly proved by PPA's utter want of consideration since nothing more could have been
decision itself to abandon the disadvantageous scheme through stipulated in the agreement when every detail of port operation
Administrative Order No. 06-95 dated 4 December had already been previously spelled out and sanctioned in the
1995, Liberalized Regulation on Private Ports Construction, original contract. The belated MOA citations of PPAs recognition
Development, and Operation.[49] The PPA issuance scrapped of TEFASCO's facility as a private port and provision of arrastre
government share in the income of private ports where no and stevedoring and repair services were all part of the
government facilities had been installed and in place thereof agreement from 1976 when the project proposal was approved
imposed a one-time privilege fee of P20,000.00 per annum for by the PPA Board. Under these circumstances, it cannot be said
commercial ports and P10,000.00 yearly for non-commercial
that TEFASCO embraced voluntarily the unfair imposition in the from determination with reasonable certainty of the amount
MOA that inevitably would cause, as it did, its own bankruptcy. demanded. Thus, applying that rule in the case at bar, the interest
would be six percent (6%) per annum from the date of
In sum, TEFASCO is entitled to Five Million Ninety-Five
promulgation of the decision of the trial court in Civil Cases Nos.
Thousand Thirty Pesos and Seventeen Centavos
19216-88 on July 15, 1992.
(P5,095,030.17) for reimbursement of what PPA illegally
collected as "government share" in the gross income of To recapitulate: PPA is liable to TEFASCO for Fifteen Million
TEFASCO's arrastre and stevedoring operations for 1977 to Eight Hundred Ten Thousand Thirty-Two Pesos and Seven
1991. Centavos (P15,810,032.07) representing fifty percent (50%)
wharfage fees and Three Million Nine Hundred Sixty-One
Fifthly, we affirm the award of Five Hundred Thousand Pesos
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos
(P500,000.00) as attorneys fees. Attorneys fees may be awarded
(P3,961,964.06) for thirty percent (30%) berthing charges from
when a party is compelled to litigate or incur expenses to protect
1977 to 1991 and Five Million Ninety-Five Thousand Thirty Pesos
his interest by reason of an unjustified act of the other party.[53] In
and Seventeen Centavos (P5,095,030.17) for reimbursement of
the instant case, attorneys fees were warranted by PPA's unfair
the unlawfully collected government share in TEFASCOs gross
exaction of exorbitant wharfage and berthing dues from
income from its arrastre and stevedoring operations during the
TEFASCO and threats to close its port. These adverse actions
same period. The said principal amounts herein ordered shall
correctly drove the latter to institute the present proceedings to
earn interest at six percent (6%) annually from July 15, 1992, date
protect its rights and remedy the unfair situation.
of promulgation of the Decision of the Regional Trial Court of
However, we set aside the award of Two Hundred Forty-Eight Davao in Civil Cases Nos. 19216-88. The PPA shall also pay
Thousand Seven Hundred Twenty-Seven Pesos (P248,727.00) TEFASCO the amount of Five Hundred Thousand Pesos
for dredging and blasting expenses. The trial court justified the (P500,000.00) for and as attorneys fees.
award on the ground that this activity was allegedly the
Henceforth, PPA shall collect only such dues and charges as
responsibility of PPA under Sec. 37 of P.D. No. 857[54] as
are duly authorized by the applicable provisions of The Tariff and
amended which TEFASCO in good faith undertook.This is not
Customs Code and presidential issuances pursuant to Sec. 19,
correct. More precisely, the law obliged PPA to fund construction
P.D. No. 857. PPA shall strictly observe only the legally
and dredging works only in "public ports vested in the
imposable rates. Furthermore, PPA has no authority to charge
Authority." Clearly the construction of the TEFASCO port was
government share in the gross income of TEFASCO from its
not the responsibility of the PPA and does not fall under Sec. 37
arrastre and stevedoring operations within its subject private port
of P.D. No. 857. The dredging and blasting done by TEFASCO
in Davao City.
augmented the viability of its port, and therefore the same were
part and parcel of the contractual obligations it agreed to TEFASCO's port operations including cargo handling
undertake when it accepted the terms and conditions of the services shall be co-terminous with its foreshore lease contract
project. with the National Government and any extension of the said
foreshore lease contract shall similarly lengthen the duration of
It is also erroneous to set legal interest on the damages
its port operations. It is clear from the inter-agency committee
awarded herein at twelve percent (12%) yearly computed from
report, PPA Resolution No. 7 and PPA letter dated May7, 1976
the filing of the complaint. In Crismina Garments, Inc. v. CA[55], it
and its enclosure that the intention of the parties under their
was held that interest on damages, other than loan or
contract is to integrate port operations of TEFASCO so that all
forbearance of money, is six percent (6%) annually computed
services therein, including arrastre and stevedoring operations,
shall end at the same time. The subsequent and onerous MOA Republic of the Philippines
did not change the tenure of its port operations, there being no Supreme Court
clear and convincing showing of TEFASCO's free and voluntary Manila
amenability thereto. In no case, however, shall such port
operations of TEFASCO exceed fifty (50) years which is the THIRD DIVISION
maximum period of foreshore lease contracts with the National
Government.
BOARD OF MEDICINE, G.R. No. 166097
WHEREFORE, the Amended Decision of the Court of DR. RAUL FLORES
Appeals dated September 30, 1998 in case CA-G.R. CV No. (now DR. JOSE S. RAMIREZ), Present:
47318 is MODIFIED as follows: in his capacity as Chairman of
the
1. The Philippine Ports Authority (PPA) is held liable and hereby Board,PROFESSIONAL QUISUMBING,* J.,
ordered to pay and reimburse to Terminal Facilities and Services REGULATION COMMISSION, YNARES-SANTIAGO,
Corporation (TEFASCO) the amounts of Fifteen Million Eight through its Chairman, Chairperson,
Hundred Ten Thousand Thirty-Two Pesos and Seven Centavos HERMOGENES POBRE AUSTRIA-MARTINEZ,
(P15,810,032.07) and Three Million Nine Hundred Sixty-One (now DR. ALCESTIS M. NACHURA, and
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos GUIANG),
(P3,961,964.06) representing fifty percent (50%) wharfage fees and Petitioners, REYES, JJ.
thirty percent (30%) berthing charges respectively, from 1977 to 1991,
and the sum of Five Million Ninety-Five Thousand Thirty Pesos and
Seventeen Centavos (P5,095,030.17) representing PPAs unlawfully -versus-
collected government share in the gross income of TEFASCO's
arrastre and stevedoring operations during the said period; Promulgated:
YASUYUKI OTA, July 14, 2008
2. The said principal amounts herein ordered to be paid by PPA to Respondent.
TEFASCO shall earn interest at six percent (6%) per annum from July x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --
15, 1992, date of promulgation of the Decision of the Regional Trial -- -- x
Court, Branch 17 of Davao City in Civil Case No. 19216-88; and
D E C I S I O N
3. The PPA is also ordered to pay TEFASCO the sum of Five Hundred
Thousand Pesos (P500,000.00) for and as attorneys fees. AUSTRIA-MARTINEZ, J.:

Costs against the Philippine Ports Authority. Before the Court is a Petition for Review on Certiorari assailing the
SO ORDERED. Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No.
84945[2] dated November 16, 2004 which affirmed the Decision[3] of the
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, Regional Trial Court (RTC), Branch 22, Manila, dated October 19,
JJ., concur. 2003.[4]
contravention of the provision of Section 20 of Republic Act (R.A.) No.
The facts are as follows: 2382 (The Medical Act of 1959), depriving him of his legitimate right
to practice his profession in the Philippines to his great damage and
Yasuyuki Ota (respondent) is a Japanese national, married to a Filipina, prejudice.[11]
who has continuously resided in the Philippines for more than 10
years. He graduated from Bicol Christian College of Medicine on April On October 19, 2003, the RTC rendered its Decision finding that
21, 1991 with a degree of Doctor of Medicine.[5] After successfully respondent had adequately proved that the medical laws of Japan allow
completing a one-year post graduate internship training at foreigners like Filipinos to be granted license and be admitted into the
the Jose Reyes Memorial Medical Center, he filed an application to take practice of medicine under the principle of reciprocity; and that the
the medical board examinations in order to obtain a medical license. He Board had a ministerial duty of issuing the Certificate of Registration
was required by the Professional Regulation Commission (PRC) to and license to respondent, as it was shown that he had substantially
submit an affidavit of undertaking, stating among others that should he complied with the requirements under the law.[12] The RTC then ordered
successfully pass the same, he would not practice medicine until he the Board to issue in favor of respondent the corresponding Certificate
submits proof that reciprocity exists between Japan and the Philippines of Registration and/or license to practice medicine in the Philippines.[13]
in admitting foreigners into the practice of medicine.[6] The Board and the PRC (petitioners) appealed the case to the CA, stating
that while respondent submitted documents showing that foreigners are
Respondent submitted a duly notarized English translation of the allowed to practice medicine in Japan, it was not shown that the
Medical Practitioners Law of Japan duly authenticated by the Consul conditions for the practice of medicine there are practical and attainable
General of the Philippine Embassy to Japan, Jesus I. Yabes;[7] thus, he by a foreign applicant, hence, reciprocity was not established; also, the
was allowed to take the Medical Board Examinations in August 1992, power of the PRC and the Board to regulate and control the practice of
which he subsequently passed.[8] medicine is discretionary and not ministerial, hence, not compellable by
a writ of mandamus.[14]
In spite of all these, the Board of Medicine (Board) of the PRC, in
a letter dated March 8, 1993, denied respondent's request for a The CA denied the appeal and affirmed the ruling of the RTC.[15]
license to
Hence, herein petition raising the following issue:

practice medicine in the Philippines on the ground that the Board WHETHER THE COURT OF APPEALS
believes that no genuine reciprocity can be found in the law of Japan as COMMITTED A REVERSIBLE ERROR IN FINDING
there is no Filipino or foreigner who can possibly practice there.[9] THAT RESPONDENT HAD ESTABLISHED THE
EXISTENCE OF RECIPROCITY IN THE PRACTICE
Respondent then filed a Petition for Certiorari and Mandamus against OF MEDICINE BETWEEN
[16]
the Board before the RTC of Manila on June 24, 1993, which petition THE PHILIPPINES AND JAPAN.
was amended on February 14, 1994 to implead the PRC through its Petitioners claim that: respondent has not established by competent and
Chairman.[10] conclusive evidence that reciprocity in the practice of medicine exists
between the Philippines and Japan. While documents state that
In his petition before the RTC, respondent alleged that the Board and foreigners are allowed to practice medicine in Japan, they do not
the PRC, in refusing to issue in his favor a Certificate of Registration similarly show that the conditions for the practice of medicine in said
and/or license to practice medicine, had acted arbitrarily, in clear country are practical and attainable by a foreign applicant. There is no
reciprocity in this case, as the requirements to practice medicine two countries, since it does not follow that no Filipino will ever be
in Japan are practically impossible for a Filipino to comply with. There granted a medical license by the Japanese Government. It is not the
are also ambiguities in the Medical Practitioners Law of Japan, which essence of reciprocity that before a citizen of one of the contracting
were not clarified by respondent, i.e., what are the provisions of the countries can demand its application, it is necessary that the interested
School Educations Laws, what are the criteria of the Minister of Health citizens country has previously granted the same privilege to the citizens
and Welfare of Japan in determining whether the academic and of the other contracting country.[21] Respondent further argues that
technical capability of foreign medical graduates are the same or better Section 20 of the Medical Act of 1959[22] indicates the mandatory
than graduates of medical schools in Japan, and who can actually qualify character of the statute and an imperative obligation on the part of the
to take the preparatory test for the National Medical Examination. Board inconsistent with the idea of discretion. Thus, a foreigner, just
Consul General Yabes also stated that there had not been a single like a Filipino citizen, who successfully passes the examination and has
Filipino who was issued a license to practice medicine by the Japanese all the qualifications and none of the disqualifications, is entitled as a
Government. The publication showing that there were foreigners matter of right to the issuance of a certificate of registration or a
practicing medicine in Japan, which respondent presented before the physicians license, which right is enforceable by mandamus.[23]
Court, also did not specifically show that Filipinos were among those
listed as practicing said profession.[17] Furthermore, under Professional
Regulation Commission v. De Guzman,[18] the power of the PRC and the Petitioners filed a Reply[24] and both parties filed their respective
Board to regulate and control the practice of medicine includes the memoranda[25] reiterating their arguments.
power to regulate admission to the ranks of those authorized to practice
medicine, which power is discretionary and not ministerial, hence, not The Court denies the petition for lack of merit.
compellable by a writ of mandamus.[19]
Petitioners pray that the CA Decision dated November 16, 2004 be There is no question that a license to practice medicine is a
reversed and set aside, that a new one be rendered reinstating the Board privilege or franchise granted by the government.[26] It is a right that is
Order dated March 8, 1993 which disallows respondent to practice earned through years of education and training, and which requires that
medicine in the Philippines, and that respondent's petition before the one must first secure a license from the state through professional board
trial court be dismissed for lack of merit.[20] examinations.[27]
Indeed,
In his Comment, respondent argues that: Articles 2 and 11 of the [T]he regulation of the practice of medicine in all its
Medical Practitioners Law of Japan and Section 9 of the Philippine branches has long been recognized as a reasonable
Medical Act of 1959 show that reciprocity exists between method of protecting the health and safety of the
the Philippines and Japan concerning the practice of medicine. Said public. That the power to regulate and control the
laws clearly state that both countries allow foreigners to practice practice of medicine includes the power to regulate
medicine in their respective jurisdictions as long as the applicant meets admission to the ranks of those authorized to practice
the educational requirements, training or residency in hospitals and pass medicine, is also well recognized. Thus, legislation and
the licensure examination given by either country. Consul administrative regulations requiring those who wish to
General Yabes in his letter dated January 28, 1992 stated that the practice medicine first to take and pass medical board
Japanese Government allows a foreigner to practice medicine examinations have long ago been recognized as valid
in Japan after complying with the local requirements. The fact that there exercises of governmental power. Similarly, the
is no reported Filipino who has successfully penetrated the medical establishment of minimum medical educational
practice in Japan does not mean that there is no reciprocity between the requirements i.e., the completion of prescribed courses
in a recognized medical school for admission to the
medical profession, has also been sustained as a j) The [Professional Regulation] Commission
legitimate exercise of the regulatory authority of the may, upon the recommendation of the Board concerned,
state.[28] approve the registration of and authorize the issuance of
a certificate of registration with or without examination
to a foreigner who is registered under the laws of his
It must be stressed however that the power to regulate the country: Provided, That the requirement for the
exercise of a profession or pursuit of an occupation cannot be exercised registration or licensing in said foreign state or country
by the State or its agents in an arbitrary, despotic, or oppressive are substantially the same as those required and
manner. A political body which regulates the exercise of a particular contemplated by the laws of the Philippines and that the
privilege has the authority to both forbid and grant such privilege in laws of such foreign state or country allow the citizens
accordance with certain conditions. As the legislature cannot validly of the Philippines to practice the profession on the same
bestow an arbitrary power to grant or refuse a license on a public agency basis and grant the same privileges as the subject or
or officer, courts will generally strike down license legislation that vests citizens of such foreign state or country: Provided,
in public officials discretion to grant or refuse a license to carry on some finally, That the applicant shall submit competent and
ordinarily lawful business, profession, or activity without prescribing conclusive documentary evidence, confirmed by the
definite rules and conditions for the guidance of said officials in the Department of Foreign Affairs, showing that his
exercise of their power.[29] country's existing laws permit citizens of the Philippines
to practice the profession under the rules and regulations
R.A. No. 2382 otherwise known as the Medical Act of 1959 states in governing citizens thereof. The Commission is also
Section 9 thereof that: hereby authorized to prescribe additional requirements
or grant certain privileges to foreigners seeking
Section 9. Candidates for Board registration in the Philippines if the same privileges are
Examinations.- Candidates for Board examinations shall granted to or some additional requirements are required
have the following qualifications: of citizens of the Philippines in acquiring the same
certificates in his country;
1. He shall be a citizen of the Philippines or a citizen of
any foreign country who has submitted competent and x x x x
conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his
countrys existing laws permit citizens of the Philippines As required by the said laws, respondent submitted a copy of the
to practice medicine under the same rules and regulations Medical Practitioners Law of Japan, duly authenticated by the Consul
governing citizens thereof; General of the Embassy of the Philippines in Japan, which provides in
Articles 2 and 11, thus:
x x x x
Article 2. Anyone who wants to be medical
practitioner must pass the national examination for
Presidential Decree (P.D.) No. 223[30] also provides in medical practitioner and get license from the Minister of
Section (j) thereof that: Health and Welfare.
Department of Foreign Affairs (DFA), showing that his countrys
x x x x existing laws permit citizens of the Philippines to practice medicine
under the same rules and regulations governing citizens thereof.
Article 11. No one can take the National Medical
Examination except persons who conform to one of the Section (j) of P.D. No. 223 also defines the extent
following items: of PRC's power to grant licenses, i.e., it may, upon recommendation of
the board, approve the registration and authorize the issuance of a
1. Persons who finished regular medical certificate of registration with or without examination to a foreigner
courses at a university based on the School who is registered under the laws of his country, provided the following
Education Laws (December 26, 1947) and conditions are met: (1) that the requirement for the registration or
graduated from said university. licensing in said foreign state or country are substantially the same as
those required and contemplated by the laws of the Philippines; (2) that
2. Persons who passed the preparatory test for the laws of such foreign state or country allow the citizens of the
the National Medical Examination and Philippines to practice the profession on the same basis and grant the
practiced clinics and public sanitation more same privileges as the subject or citizens of such foreign state or
than one year after passing the said test. country; and (3) that the applicant shall submit competent and
conclusive documentary evidence, confirmed by the DFA, showing that
3. Persons who graduated from a foreign his country's existing laws permit citizens of the Philippines to practice
medical school or acquired medical the profession under the rules and regulations governing citizens
practitioner license in a foreign country, and thereof.
also are recognized to have the same or more
academic ability and techniques as persons The said provision further states that the PRC is authorized to
stated in item 1 and item 2 of this article.[31] prescribe additional requirements or grant certain privileges to
foreigners seeking registration in the Philippines if the same privileges
are granted to or some additional requirements are required of citizens
Petitioners argue that while the Medical Practitioners Law of of the Philippines in acquiring the same certificates in his country.
Japan allows foreigners to practice medicine therein, said document
does not show that conditions for the practice of medicine in said Nowhere in said statutes is it stated that the foreign applicant
country are practical and attainable by a foreign applicant; and since must show that the conditions for the practice of medicine in said
the requirements are practically impossible for a Filipino to comply country are practical and attainable by Filipinos. Neither is it stated that
with, there is no reciprocity between the two countries, hence, it must first be proven that a Filipino has been granted license and
respondent may not be granted license to practice medicine in the allowed to practice his profession in said country before a foreign
Philippines. applicant may be given license to practice in the Philippines.Indeed, the
phrase used in both R.A. No. 2382 and P.D. No. 223 is that:
The Court does not agree. [T]he applicant shall submit] competent and conclusive
documentary evidence, confirmed by the Department of
R.A. No. 2382, which provides who may be candidates for the Foreign Affairs, showing that his country's existing
medical board examinations, merely requires a foreign citizen to submit laws permit citizens of the Philippines to practice the
competent and conclusive documentary evidence, confirmed by the profession [of medicine] under the [same] rules and
regulations governing citizens thereof. x x x (Emphasis
supplied) 1. They are not aware of a Filipino physician who
was granted a license by the Japanese
Government to practice medicine in Japan;
It is enough that the laws in the foreign country permit a Filipino 2. However, the Japanese Government allows a
to get license and practice therein. Requiring respondent to prove first foreigner to practice medicine in Japan after
that a Filipino has already been granted license and is actually practicing complying with the local requirements such as
therein unduly expands the requirements provided for under R.A. No. holding a valid visa for the purpose of taking
2382 and P.D. No. 223. the medical board exam, checking the
applicant's qualifications to take the
While it is true that respondent failed to give details as to the examination, taking the national board
conditions stated in the Medical Practitioners Law of Japan -- i.e., the examination in Japanese and filing an
provisions of the School Educations Laws, the criteria of the Minister application for the issuance of the medical
of Health and Welfare of Japan in determining whether the academic license.
and technical capability of foreign medical graduates are the same as or
better than that of graduates of medical schools in Japan, and who can Accordingly, the Embassy is not aware of a
actually qualify to take the preparatory test for the National Medical single Filipino physician who was issued by the
Examination respondent, however, presented proof that foreigners are Japanese Government a license to practice medicine,
actually practicing in Japan and that Filipinos are not precluded from because it is extremely difficult to pass the medical
getting a license to practice there. board examination in the Japanese language. Filipino
doctors here are only allowed to work in Japanese
Respondent presented before the trial court a Japanese hospitals as trainees under the supervision of a Japanese
Government publication, Physician-Dentist-Pharmaceutist Survey, doctor. On certain occasions, they are allowed to show
showing that there are a number of foreign physicians practicing their medical skills during seminars for demonstration
medicine in Japan.[32] He also presented a letter dated January 28, purposes only. (Emphasis supplied)
1992 from Consul General Yabes,[33] which states:
Very truly yours,

S i r : Jesus I. Yabes
Minister Counsellor &
With reference to your letter dated 12 January Consul General
1993, concerning your request for a Certificate of
Confirmation for the purpose of establishing a
reciprocity with Japan in the practice of medical From said letter, one can see that the Japanese Government
profession relative to the case of Mr. Yasuyuki Ota, a allows foreigners to practice medicine therein provided that the local
Japanese national, the Embassy wishes to inform you that requirements are complied with, and that it is not the impossibility or
inquiries from the Japanese Ministry of Foreign Affairs, the prohibition against Filipinos that would account for the absence of
Ministry of Health and Welfare as well as Bureau of Filipino physicians holding licenses and practicing medicine in Japan,
Immigration yielded the following information: but the difficulty of passing the board examination in the Japanese
language. Granting that there is still no Filipino who has been given to Section 20 and par. (1) of Section 22 of the Medical
license to practice medicine in Japan, it does not mean that no Filipino Act of 1959.[38]
will ever be able to be given one.
In this case, there is no doubt as to the competence and
Petitioners next argue that as held in De Guzman, its power to qualifications of respondent. He finished his medical degree
issue licenses is discretionary, hence, not compellable by mandamus. from Bicol Christian College of Medicine. He completed a one-year
post graduate internship training at
The Court finds that the factual circumstances of De Guzman are the Jose Reyes Memorial Medical Center, a government hospital. Then
different from those of the case at bar; hence, the principle applied he passed the Medical Board Examinations which was given on August
therein should be viewed differently in this case. In De Guzman, there 8, 1992 with a general average of 81.83, with scores higher than 80 in 9
were doubts about the integrity and validity of the test results of the of the 12 subjects.
examinees from a particular school which garnered unusually high
scores in the two most difficult subjects. Said doubts called for serious In fine, the only matter being questioned by petitioners is the
inquiry concerning the applicants satisfactory compliance with the alleged failure of respondent to prove that there is reciprocity between
Board requirements.[34] And as there was no definite showing that the the laws of Japan and the Philippines in admitting foreigners into the
requirements and conditions to be granted license to practice medicine practice of medicine. Respondent has satisfactorily complied with the
had been satisfactorily met, the Court held that the writ said requirement and the CA has not committed any reversible error in
of mandamus may not be granted to secure said privilege without rendering its Decision dated November 16, 2004and Resolution
thwarting the legislative will.[35] dated October 19, 2003.

Indeed, to be granted the privilege to practice medicine, the WHEREFORE, the petition is hereby DENIED for lack of
applicant must show that he possesses all the qualifications and none of merit.
the disqualifications. It must also appear that he has fully complied with
all the conditions and requirements imposed by the law and the SO ORDERED.
licensing authority.[36]

In De Guzman itself, the Court explained that:

A careful reading of Section 20[37] of the Medical
Act of 1959 discloses that the law uses the word shall
with respect to the issuance of certificates of
registration. Thus, the petitioners [PRC] shall sign and
issue certificates of registration to those who have
satisfactorily complied with the requirements of the
Board. In statutory construction the term shall is a word
of command. It is given imperative meaning. Thus, when
an examinee satisfies the requirements for the grant of
his physician's license, the Board is obliged to administer
to him his oath and register him as a physician, pursuant
Republic of the Philippines The questioned order dated September 15, 1969, of Associate Judge
SUPREME COURT Joaquin M. Salvador of the respondent Court reproduced the following
Manila stipulation of facts of the parties — parties —

EN BANC 3. That on March 2, 1969 complainant company learned


of the projected mass demonstration at Malacañang in
protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-
G.R. No. L-31195 June 5, 1973 2:00 PM) workers as well as those working in the regular
shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
the morning of March 4, 1969;
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION,
NICANOR TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS
MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO VACUNA, 4. That a meeting was called by the Company on March
BENJAMIN PAGCU and RODULFO MUNSOD, petitioners, 3, 1969 at about 11:00 A.M. at the Company's canteen,
vs. and those present were: for the Company: (1) Mr. Arthur
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF L. Ang (2) Atty. S. de Leon, Jr., (3) and all department
INDUSTRIAL RELATIONS, respondents. and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6)
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Benjamin Pagcu.
Demetrio B. Salem & Associates for private respondent.
5. That the Company asked the union panel to confirm or
deny said projected mass demonstration at Malacañang
on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the
MAKASIAR, J.:
planned demonstration and stated that the demonstration
or rally cannot be cancelled because it has already been
The petitioner Philippine Blooming Mills Employees Organization agreed upon in the meeting. Pagcu explained further that
(hereinafter referred to as PBMEO) is a legitimate labor union composed the demonstration has nothing to do with the Company
of the employees of the respondent Philippine Blooming Mills Co., Inc., because the union has no quarrel or dispute with
and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Management;
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu
and Rodulfo Munsod are officers and members of the petitioner Union.
6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration is an inalienable right of the union
demonstration at Malacañang on March 4, 1969, in protest against guaranteed by the Constitution but emphasized, however,
alleged abuses of the Pasig police, to be participated in by the workers in that any demonstration for that matter should not unduly
the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular prejudice the normal operation of the Company. For
second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., which reason, the Company, thru Atty. C.S. de Leon
respectively); and that they informed the respondent Company of their warned the PBMEO representatives that workers who
proposed demonstration. belong to the first and regular shifts, who without previous
leave of absence approved by the Company, particularly ,
the officers present who are the organizers of the
demonstration, who shall fail to report for work the
following morning (March 4, 1969) shall be dismissed, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding complaint
because such failure is a violation of the existing CBA was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T.
and, therefore, would be amounting to an illegal strike; Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

7. That at about 5:00 P.M. on March 3, 1969, another In their answer, dated May 9, 1969, herein petitioners claim that they did
meeting was convoked Company represented by Atty. not violate the existing CBA because they gave the respondent Company
C.S. de Leon, Jr. The Union panel was composed of: prior notice of the mass demonstration on March 4, 1969; that the said
Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and mass demonstration was a valid exercise of their constitutional freedom
Florencio Padrigano. In this afternoon meeting of March of speech against the alleged abuses of some Pasig policemen; and that
3, 1969, Company reiterated and appealed to the PBMEO their mass demonstration was not a declaration of strike because it was
representatives that while all workers may join the not directed against the respondent firm (Annex "D", pp. 31-34, rec.)
Malacañang demonstration, the workers for the first and
regular shift of March 4, 1969 should be excused from After considering the aforementioned stipulation of facts submitted by the
joining the demonstration and should report for work; and parties, Judge Joaquin M. Salvador, in an order dated September 15,
thus utilize the workers in the 2nd and 3rd shifts in order 1969, found herein petitioner PBMEO guilty of bargaining in bad faith and
not to violate the provisions of the CBA, particularly Article herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon,
XXIV: NO LOCKOUT — NO STRIKE'. All those who will Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor
not follow this warning of the Company shall be dismiss; Tolentino and Rodulfo Munsod as directly responsible for perpetrating the
De Leon reiterated the Company's warning that the said unfair labor practice and were, as a consequence, considered to
officers shall be primarily liable being the organizers of have lost their status as employees of the respondent Company (Annex
the mass demonstration. The union panel countered that "F", pp. 42-56, rec.)
it was rather too late to change their plans inasmuch as
the Malacañang demonstration will be held the following Herein petitioners claim that they received on September 23, 1969, the
morning; and aforesaid order (p. 11, rec.); and that they filed on September 29, 1969,
because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO reconsideration of said order dated September 15, 1969, on the ground
sent a cablegram to the Company which was received that it is contrary to law and the evidence, as well as asked for ten (10)
9:50 A.M., March 4, 1969, the contents of which are as days within which to file their arguments pursuant to Sections 15, 16 and
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT 17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. )
EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.) In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63,
rec.), respondent Company averred that herein petitioners received on
Because the petitioners and their members numbering about 400 September 22, 1969, the order dated September 17 (should be
proceeded with the demonstration despite the pleas of the respondent September 15), 1969; that under Section 15 of the amended Rules of the
Company that the first shift workers should not be required to participate Court of Industrial Relations, herein petitioners had five (5) days from
in the demonstration and that the workers in the second and third shifts September 22, 1969 or until September 27, 1969, within which to file their
should be utilized for the demonstration from 6 A.M. to 2 P.M. on March motion for reconsideration; and that because their motion for
4, 1969, respondent Company prior notice of the mass demonstration on reconsideration was two (2) days late, it should be accordingly dismissed,
March 4, 1969, with the respondent Court, a charge against petitioners invoking Bien vs. Castillo,1 which held among others, that a motion for
and other employees who composed the first shift, charging them with a extension of the five-day period for the filing of a motion for
"violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as reconsideration should be filed before the said five-day period elapses
Section 15, all of Republic Act No. 875, and of the CBA providing for 'No (Annex "M", pp. 61-64, rec.).
Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was
accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon,
Subsequently, herein petitioners filed on October 14, 1969 their written (2) The Bill of Rights is designed to preserve the ideals of liberty, equality
arguments dated October 11, 1969, in support of their motion for and security "against the assaults of opportunism, the expediency of the
reconsideration (Annex "I", pp. 65-73, rec.). passing hour, the erosion of small encroachments, and the scorn and
derision of those who have no patience with general principles."3
In a resolution dated October 9, 1969, the respondent en banc dismissed
the motion for reconsideration of herein petitioners for being pro forma as In the pithy language of Mr. Justice Robert Jackson, the purpose of the
it was filed beyond the reglementary period prescribed by its Rules Bill of Rights is to withdraw "certain subjects from the vicissitudes of
(Annex "J", pp. 74-75, rec.), which herein petitioners received on October political controversy, to place them beyond the reach of majorities and
28, 196 (pp. 12 & 76, rec.). officials, and to establish them as legal principles to be applied by the
courts. One's rights to life, liberty and property, to free speech, or free
At the bottom of the notice of the order dated October 9, 1969, which was press, freedom of worship and assembly, and other fundamental rights
released on October 24, 1969 and addressed to the counsels of the may not be submitted to a vote; they depend on the outcome of no
parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16 and elections."4 Laski proclaimed that "the happiness of the individual, not the
17, as amended, of the Rules of the Court of Industrial Relations, that a well-being of the State, was the criterion by which its behaviour was to be
motion for reconsideration shall be filed within five (5) days from receipt judged. His interests, not its power, set the limits to the authority it was
of its decision or order and that an appeal from the decision, resolution or entitled to exercise."5
order of the C.I.R., sitting en banc, shall be perfected within ten (10) days
from receipt thereof (p. 76, rec.). (3) The freedoms of expression and of assembly as well as the right to
petition are included among the immunities reserved by the sovereign
On October 31, 1969, herein petitioners filed with the respondent court a people, in the rhetorical aphorism of Justice Holmes, to protect the ideas
petition for relief from the order dated October 9, 1969, on the ground that we abhor or hate more than the ideas we cherish; or as Socrates
that their failure to file their motion for reconsideration on time was due to insinuated, not only to protect the minority who want to talk, but also to
excusable negligence and honest mistake committed by the president of benefit the majority who refuse to listen.6 And as Justice Douglas
the petitioner Union and of the office clerk of their counsel, attaching cogently stresses it, the liberties of one are the liberties of all; and the
thereto the affidavits of the said president and clerk (Annexes "K", "K-1" liberties of one are not safe unless the liberties of all are protected.7
and "K-2", rec.).
(4) The rights of free expression, free assembly and petition, are not only
Without waiting for any resolution on their petition for relief from the order civil rights but also political rights essential to man's enjoyment of his life,
dated October 9, 1969, herein petitioners filed on November 3, 1969, with to his happiness and to his full and complete fulfillment. Thru these
the Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.). freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the
I administration of public affairs as well as in the discipline of abusive
public officers. The citizen is accorded these rights so that he can appeal
to the appropriate governmental officers or agencies for redress and
There is need of briefly restating basic concepts and principles which
protection as well as for the imposition of the lawful sanctions on erring
underlie the issues posed by the case at bar.
public officers and employees.
(1) In a democracy, the preservation and enhancement of the dignity and
(5) While the Bill of Rights also protects property rights, the primacy of
worth of the human personality is the central core as well as the cardinal
human rights over property rights is recognized.8 Because these
article of faith of our civilization. The inviolable character of man as an
freedoms are "delicate and vulnerable, as well as supremely precious in
individual must be "protected to the largest possible extent in his thoughts
our society" and the "threat of sanctions may deter their exercise almost
and in his beliefs as the citadel of his person."2
as potently as the actual application of sanctions," they "need breathing
space to survive," permitting government regulation only "with narrow
specificity."9
Property and property rights can be lost thru prescription; but human The demonstration held petitioners on March 4, 1969 before Malacañang
rights are imprescriptible. If human rights are extinguished by the was against alleged abuses of some Pasig policemen, not against their
passage of time, then the Bill of Rights is a useless attempt to limit the employer, herein private respondent firm, said demonstrate was purely
power of government and ceases to be an efficacious shield against the and completely an exercise of their freedom expression in general and of
tyranny of officials, of majorities, of the influential and powerful, and of their right of assembly and petition for redress of grievances in particular
oligarchs — political, economic or otherwise. before appropriate governmental agency, the Chief Executive, again the
police officers of the municipality of Pasig. They exercise their civil and
In the hierarchy of civil liberties, the rights of free expression and of political rights for their mutual aid protection from what they believe were
assembly occupy a preferred position as they are essential to the police excesses. As matter of fact, it was the duty of herein private
preservation and vitality of our civil and political institutions; 10 and such respondent firm to protect herein petitioner Union and its members fro the
priority "gives these liberties the sanctity and the sanction not permitting harassment of local police officers. It was to the interest herein private
dubious intrusions." 11 respondent firm to rally to the defense of, and take up the cudgels for, its
employees, so that they can report to work free from harassment,
The superiority of these freedoms over property rights is underscored by vexation or peril and as consequence perform more efficiently their
the fact that a mere reasonable or rational relation between the means respective tasks enhance its productivity as well as profits. Herein
employed by the law and its object or purpose — that the law is neither respondent employer did not even offer to intercede for its employees
arbitrary nor discriminatory nor oppressive — would suffice to validate a with the local police. Was it securing peace for itself at the expenses of
law which restricts or impairs property rights. 12 On the other hand, a its workers? Was it also intimidated by the local police or did it encourage
constitutional or valid infringement of human rights requires a more the local police to terrorize or vex its workers? Its failure to defend its own
stringent criterion, namely existence of a grave and immediate danger of employees all the more weakened the position of its laborers the alleged
a substantive evil which the State has the right to prevent. So it has been oppressive police who might have been all the more emboldened thereby
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. subject its lowly employees to further indignities.
Comelec and reiterated by the writer of the opinion in Imbong vs.
Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs. In seeking sanctuary behind their freedom of expression well as their
Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times right of assembly and of petition against alleged persecution of local
Co. vs. Sullivan, 14 believes that the freedoms of speech and of the press officialdom, the employees and laborers of herein private respondent firm
as well as of peaceful assembly and of petition for redress of grievances were fighting for their very survival, utilizing only the weapons afforded
are absolute when directed against public officials or "when exercised in them by the Constitution — the untrammelled enjoyment of their basic
relation to our right to choose the men and women by whom we shall be human rights. The pretension of their employer that it would suffer loss or
governed," 15 even as Mr. Justice Castro relies on the balancing-of- damage by reason of the absence of its employees from 6 o'clock in the
interests test. 16 Chief Justice Vinson is partial to the improbable danger morning to 2 o'clock in the afternoon, is a plea for the preservation merely
rule formulated by Chief Judge Learned Hand, viz. — whether the gravity of their property rights. Such apprehended loss or damage would not
of the evil, discounted by its improbability, justifies such invasion of free spell the difference between the life and death of the firm or its owners or
expression as is necessary to avoid the danger. 17 its management. The employees' pathetic situation was a stark reality —
abused, harassment and persecuted as they believed they were by the
II peace officers of the municipality. As above intimated, the condition in
which the employees found themselves vis-a-vis the local police of Pasig,
was a matter that vitally affected their right to individual existence as well
The respondent Court of Industrial Relations, after opining that the mass
as that of their families. Material loss can be repaired or adequately
demonstration was not a declaration of strike, concluded that by their
compensated. The debasement of the human being broken in morale
"concerted act and the occurrence temporary stoppage of work," herein
and brutalized in spirit-can never be fully evaluated in monetary terms.
petitioners are guilty bargaining in bad faith and hence violated the
The wounds fester and the scars remain to humiliate him to his dying
collective bargaining agreement with private respondent Philippine
day, even as he cries in anguish for retribution, denial of which is like
Blooming Mills Co., inc.. Set against and tested by foregoing principles
rubbing salt on bruised tissues.
governing a democratic society, such conclusion cannot be sustained.
As heretofore stated, the primacy of human rights — freedom of immediately action on the part of the corresponding government
expression, of peaceful assembly and of petition for redress of agencies with jurisdiction over the issues they raised against the local
grievances — over property rights has been sustained. 18 Emphatic police. Circulation is one of the aspects of freedom of expression. 21 If
reiteration of this basic tenet as a coveted boon — at once the shield and demonstrators are reduced by one-third, then by that much the circulation
armor of the dignity and worth of the human personality, the all- of the issues raised by the demonstration is diminished. The more the
consuming ideal of our enlightened civilization — becomes Our duty, if participants, the more persons can be apprised of the purpose of the
freedom and social justice have any meaning at all for him who toils so rally. Moreover, the absence of one-third of their members will be
that capital can produce economic goods that can generate happiness for regarded as a substantial indication of disunity in their ranks which will
all. To regard the demonstration against police officers, not against the enervate their position and abet continued alleged police persecution. At
employer, as evidence of bad faith in collective bargaining and hence a any rate, the Union notified the company two days in advance of their
violation of the collective bargaining agreement and a cause for the projected demonstration and the company could have made
dismissal from employment of the demonstrating employees, stretches arrangements to counteract or prevent whatever losses it might sustain
unduly the compass of the collective bargaining agreement, is "a potent by reason of the absence of its workers for one day, especially in this
means of inhibiting speech" and therefore inflicts a moral as well as case when the Union requested it to excuse only the day-shift employees
mortal wound on the constitutional guarantees of free expression, of who will join the demonstration on March 4, 1969 which request the
peaceful assembly and of petition. 19 Union reiterated in their telegram received by the company at 9:50 in the
morning of March 4, 1969, the day of the mass demonstration (pp. 42-43,
The collective bargaining agreement which fixes the working shifts of the rec.). There was a lack of human understanding or compassion on the
employees, according to the respondent Court Industrial Relations, in part of the firm in rejecting the request of the Union for excuse from work
effect imposes on the workers the "duty ... to observe regular working for the day shifts in order to carry out its mass demonstration. And to
hours." The strain construction of the Court of Industrial Relations that a regard as a ground for dismissal the mass demonstration held against
stipulated working shifts deny the workers the right to stage mass the Pasig police, not against the company, is gross vindictiveness on the
demonstration against police abuses during working hours, constitutes a part of the employer, which is as unchristian as it is unconstitutional.
virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on III
such a slender ground.
The respondent company is the one guilty of unfair labor practice.
The mass demonstration staged by the employees on March 4, 1969 Because the refusal on the part of the respondent firm to permit all its
could not have been legally enjoined by any court, such an injunction employees and workers to join the mass demonstration against alleged
would be trenching upon the freedom expression of the workers, even if it police abuses and the subsequent separation of the eight (8) petitioners
legally appears to be illegal picketing or strike. 20 The respondent Court of from the service constituted an unconstitutional restraint on the freedom
Industrial Relations in the case at bar concedes that the mass of expression, freedom of assembly and freedom petition for redress of
demonstration was not a declaration of a strike "as the same not rooted grievances, the respondent firm committed an unfair labor practice
in any industrial dispute although there is concerted act and the defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875,
occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.). otherwise known as the Industrial Peace Act. Section 3 of Republic Act
No. 8 guarantees to the employees the right "to engage in concert
The respondent firm claims that there was no need for all its employees activities for ... mutual aid or protection"; while Section 4(a-1) regards as
to participate in the demonstration and that they suggested to the Union an unfair labor practice for an employer interfere with, restrain or coerce
that only the first and regular shift from 6 A.M. to 2 P.M. should report for employees in the exercise their rights guaranteed in Section Three."
work in order that loss or damage to the firm will be averted. This stand
failed appreciate the sine qua non of an effective demonstration We repeat that the obvious purpose of the mass demonstration staged by
especially by a labor union, namely the complete unity of the Union the workers of the respondent firm on March 4, 1969, was for their mutual
members as well as their total presence at the demonstration site in order aid and protection against alleged police abuses, denial of which was
to generate the maximum sympathy for the validity of their cause but also interference with or restraint on the right of the employees to engage in
such common action to better shield themselves against such alleged on them by the local police, it thereby concedes that the evidence of such
police indignities. The insistence on the part of the respondent firm that abuses should properly be submitted to the corresponding authorities
the workers for the morning and regular shift should not participate in the having jurisdiction over their complaint and to whom such complaint may
mass demonstration, under pain of dismissal, was as heretofore stated, be referred by the President of the Philippines for proper investigation
"a potent means of inhibiting speech." 22 and action with a view to disciplining the local police officers involved.

Such a concerted action for their mutual help and protection deserves at On the other hand, while the respondent Court of Industrial Relations
least equal protection as the concerted action of employees in giving found that the demonstration "paralyzed to a large extent the operations
publicity to a letter complaint charging bank president with immorality, of the complainant company," the respondent Court of Industrial
nepotism, favoritism an discrimination in the appointment and promotion Relations did not make any finding as to the fact of loss actually
of ban employees. 23 We further ruled in the Republic Savings Bank sustained by the firm. This significant circumstance can only mean that
case, supra, that for the employees to come within the protective mantle the firm did not sustain any loss or damage. It did not present evidence
of Section 3 in relation to Section 4(a-1) on Republic Act No. 875, "it is as to whether it lost expected profits for failure to comply with purchase
not necessary that union activity be involved or that collective bargaining orders on that day; or that penalties were exacted from it by customers
be contemplated," as long as the concerted activity is for the furtherance whose orders could not be filled that day of the demonstration; or that
of their interests. 24 purchase orders were cancelled by the customers by reason of its failure
to deliver the materials ordered; or that its own equipment or materials or
As stated clearly in the stipulation of facts embodied in the questioned products were damaged due to absence of its workers on March 4, 1969.
order of respondent Court dated September 15, 1969, the company, On the contrary, the company saved a sizable amount in the form of
"while expressly acknowledging, that the demonstration is an inalienable wages for its hundreds of workers, cost of fuel, water and electric
right of the Union guaranteed by the Constitution," nonetheless consumption that day. Such savings could have amply compensated for
emphasized that "any demonstration for that matter should not unduly unrealized profits or damages it might have sustained by reason of the
prejudice the normal operation of the company" and "warned the PBMEO absence of its workers for only one day.
representatives that workers who belong to the first and regular shifts,
who without previous leave of absence approved by the Company, IV
particularly the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning Apart from violating the constitutional guarantees of free speech and
(March 4, 1969) shall be dismissed, because such failure is a violation of assembly as well as the right to petition for redress of grievances of the
the existing CBA and, therefore, would be amounting to an illegal strike employees, the dismissal of the eight (8) leaders of the workers for
(;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the proceeding with the demonstration and consequently being absent from
employees from joining the mass demonstration. However, the issues work, constitutes a denial of social justice likewise assured by the
that the employees raised against the local police, were more important fundamental law to these lowly employees. Section 5 of Article II of the
to them because they had the courage to proceed with the Constitution imposes upon the State "the promotion of social justice to
demonstration, despite such threat of dismissal. The most that could insure the well-being and economic security of all of the people," which
happen to them was to lose a day's wage by reason of their absence guarantee is emphasized by the other directive in Section 6 of Article XIV
from work on the day of the demonstration. One day's pay means much of the Constitution that "the State shall afford protection to labor ...".
to a laborer, more especially if he has a family to support. Yet, they were Respondent Court of Industrial Relations as an agency of the State is
willing to forego their one-day salary hoping that their demonstration under obligation at all times to give meaning and substance to these
would bring about the desired relief from police abuses. But management constitutional guarantees in favor of the working man; for otherwise these
was adamant in refusing to recognize the superior legitimacy of their right constitutional safeguards would be merely a lot of "meaningless
of free speech, free assembly and the right to petition for redress. constitutional patter." Under the Industrial Peace Act, the Court of
Industrial Relations is enjoined to effect the policy of the law "to eliminate
Because the respondent company ostensibly did not find it necessary to the causes of industrial unrest by encouraging and protecting the
demand from the workers proof of the truth of the alleged abuses inflicted exercise by employees of their right to self-organization for the purpose
of collective bargaining and for the promotion of their moral, social and defend his interest with the required diligence and zeal, bereft as he is of
economic well-being." It is most unfortunate in the case at bar that the financial resources with which to pay for competent legal services. 28-a
respondent Court of Industrial Relations, the very governmental agency
designed therefor, failed to implement this policy and failed to keep faith VI
with its avowed mission — its raison d'etre — as ordained and directed
by the Constitution. The Court of Industrial Relations rule prescribes that motion for
reconsideration of its order or writ should filed within five (5) days from
V notice thereof and that the arguments in support of said motion shall be
filed within ten (10) days from the date of filing of such motion for
It has been likewise established that a violation of a constitutional right reconsideration (Sec. 16). As above intimated, these rules of procedure
divests the court of jurisdiction; and as a consequence its judgment is null were promulgated by the Court of Industrial Relations pursuant to a
and void and confers no rights. Relief from a criminal conviction secured legislative delegation. 29
at the sacrifice of constitutional liberties, may be obtained through
habeas corpus proceedings even long after the finality of the judgment. The motion for reconsideration was filed on September 29, 1969, or
Thus, habeas corpus is the remedy to obtain the release of an individual, seven (7) days from notice on September 22, 1969 of the order dated
who is convicted by final judgment through a forced confession, which September 15, 1969 or two (2) days late. Petitioners claim that they could
violated his constitutional right against self-incrimination; 25 or who is have filed it on September 28, 1969, but it was a Sunday.
denied the right to present evidence in his defense as a deprivation of his
liberty without due process of law, 26 even after the accused has already Does the mere fact that the motion for reconsideration was filed two (2)
served sentence for twenty-two years. 27 days late defeat the rights of the petitioning employees? Or more directly
and concretely, does the inadvertent omission to comply with a mere
Both the respondents Court of Industrial Relations and private firm Court of Industrial Relations procedural rule governing the period for filing
trenched upon these constitutional immunities of petitioners. Both failed a motion for reconsideration or appeal in labor cases, promulgated
to accord preference to such rights and aggravated the inhumanity to pursuant to a legislative delegation, prevail over constitutional rights? The
which the aggrieved workers claimed they had been subjected by the answer should be obvious in the light of the aforecited cases. To accord
municipal police. Having violated these basic human rights of the supremacy to the foregoing rules of the Court of Industrial Relations over
laborers, the Court of Industrial Relations ousted itself of jurisdiction and basic human rights sheltered by the Constitution, is not only incompatible
the questioned orders it issued in the instant case are a nullity. with the basic tenet of constitutional government that the Constitution is
Recognition and protection of such freedoms are imperative on all public superior to any statute or subordinate rules and regulations, but also
offices including the courts 28 as well as private citizens and corporations, does violence to natural reason and logic. The dominance and superiority
the exercise and enjoyment of which must not be nullified by mere of the constitutional right over the aforesaid Court of Industrial Relations
procedural rule promulgated by the Court Industrial Relations exercising procedural rule of necessity should be affirmed. Such a Court of
a purely delegate legislative power, when even a law enacted by Industrial Relations rule as applied in this case does not implement or
Congress must yield to the untrammelled enjoyment of these human reinforce or strengthen the constitutional rights affected,' but instead
rights. There is no time limit to the exercise of the freedoms. The right to constrict the same to the point of nullifying the enjoyment thereof by the
enjoy them is not exhausted by the delivery of one speech, the printing of petitioning employees. Said Court of Industrial Relations rule,
one article or the staging of one demonstration. It is a continuing promulgated as it was pursuant to a mere legislative delegation, is
immunity to be invoked and exercised when exigent and expedient unreasonable and therefore is beyond the authority granted by the
whenever there are errors to be rectified, abuses to be denounced, Constitution and the law. A period of five (5) days within which to file a
inhumanities to be condemned. Otherwise these guarantees in the Bill of motion for reconsideration is too short, especially for the aggrieved
Rights would be vitiated by rule on procedure prescribing the period for workers, who usually do not have the ready funds to meet the necessary
appeal. The battle then would be reduced to a race for time. And in such expenses therefor. In case of the Court of Appeals and the Supreme
a contest between an employer and its laborer, the latter eventually loses Court, a period of fifteen (15) days has been fixed for the filing of the
because he cannot employ the best an dedicated counsel who can motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule
52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the application of a Court of Industrial Relations rule which impinges on such
motion for reconsideration could have been only one day if September human rights. 30-a
28, 1969 was not a Sunday. This fact accentuates the unreasonableness
of the Court of Industrial are concerned. It is an accepted principle that the Supreme Court has the inherent power
to "suspend its own rules or to except a particular case from its operation,
It should be stressed here that the motion for reconsideration dated whenever the purposes of justice require." 30-b Mr. Justice Barredo in his
September 27, 1969, is based on the ground that the order sought to be concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this
reconsidered "is not in accordance with law, evidence and facts adduced principle and added that
during the hearing," and likewise prays for an extension of ten (10) days
within which to file arguments pursuant to Sections 15, 16 and 17 of the Under this authority, this Court is enabled to cove with all
Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.); situations without concerning itself about procedural
although the arguments were actually filed by the herein petitioners on niceties that do not square with the need to do justice, in
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period any case, without further loss of time, provided that the
required for the filing of such supporting arguments counted from the right of the parties to a full day in court is not substantially
filing of the motion for reconsideration. Herein petitioners received only impaired. Thus, this Court may treat an appeal as a
on October 28, 1969 the resolution dated October 9, 1969 dismissing the certiorari and vice-versa. In other words, when all the
motion for reconsideration for being pro forma since it was filed beyond material facts are spread in the records before Us, and all
the reglementary period (Annex "J", pp. 74-75, rec.) the parties have been duly heard, it matters little that the
error of the court a quo is of judgment or of jurisdiction.
It is true that We ruled in several cases that where a motion to reconsider We can then and there render the appropriate judgment.
is filed out of time, or where the arguments in suppf such motion are filed Is within the contemplation of this doctrine that as it is
beyond the 10 day reglementary period provided for by the Court of perfectly legal and within the power of this Court to strike
Industrial Relations rules, the order or decision subject of29- down in an appeal acts without or in excess of jurisdiction
a reconsideration becomes final and unappealable. But in all these or committed with grave abuse of discretion, it cannot be
cases, the constitutional rights of free expression, free assembly and beyond the admit of its authority, in appropriate cases, to
petition were not involved. reverse in a certain proceed in any error of judgment of a
court a quo which cannot be exactly categorized as a flaw
It is a procedural rule that generally all causes of action and defenses of jurisdiction. If there can be any doubt, which I do not
presently available must be specifically raised in the complaint or answer; entertain, on whether or not the errors this Court has
so that any cause of action or defense not raised in such pleadings, is found in the decision of the Court of Appeals are short of
deemed waived. However, a constitutional issue can be raised any time, being jurisdiction nullities or excesses, this Court would
even for the first time on appeal, if it appears that the determination of the still be on firm legal grounds should it choose to reverse
constitutional issue is necessary to a decision of the case, the very lis said decision here and now even if such errors can be
mota of the case without the resolution of which no final and complete considered as mere mistakes of judgment or only as
determination of the dispute can be made. 30 It is thus seen that a faults in the exercise of jurisdiction, so as to avoid the
procedural rule of Congress or of the Supreme Court gives way to a unnecessary return of this case to the lower court for the
constitutional right. In the instant case, the procedural rule of the Court of sole purpose of pursuing the ordinary course of an
Industrial Relations, a creature of Congress, must likewise yield to the appeal. (Emphasis supplied). 30-d
constitutional rights invoked by herein petitioners even before the
institution of the unfair labor practice charged against them and in their Insistence on the application of the questioned Court industrial Relations
defense to the said charge. rule in this particular case at bar would an unreasoning adherence to
"Procedural niceties" which denies justice to the herein laborers, whose
In the case at bar, enforcement of the basic human freedoms sheltered basic human freedoms, including the right to survive, must be according
no less by the organic law, is a most compelling reason to deny supremacy over the property rights of their employer firm which has been
given a full hearing on this case, especially when, as in the case at bar, applicable to ordinary courts. Said court is not even
no actual material damage has be demonstrated as having been inflicted restricted to the specific relief demanded by the
on its property rights. parties but may issue such orders as may be deemed
necessary or expedient for the purpose of settling the
If We can disregard our own rules when justice requires it, obedience to dispute or dispelling any doubts that may give rise to
the Constitution renders more imperative the suspension of a Court of future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496,
Industrial Relations rule that clash with the human rights sanctioned and Feb. 17, 1940; Manila Trading & Supply Co. v. Phil.
shielded with resolution concern by the specific guarantees outlined in Labor, 71 Phil. 124.) For these reasons, We believe that
the organic law. It should be stressed that the application in the instant this provision is ample enough to have enabled the
case Section 15 of the Court of Industrial Relations rules relied upon by respondent court to consider whether or not its previous
herein respondent firm is unreasonable and therefore such application ruling that petitioners constitute a minority was founded
becomes unconstitutional as it subverts the human rights of petitioning on fact, without regard to the technical meaning of newly
labor union and workers in the light of the peculiar facts and discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315;
circumstances revealed by the record. Chua Kiong v. Whitaker, 46 Phil. 578). (emphasis
supplied.)
The suspension of the application of Section 15 of the Court of Industrial
Relations rules with reference to the case at is also authorized by Section To apply Section 15 of the Court of Industrial Relations rules with
20 of Commonwealth Act No. 103, the C.I.R. charter, which enjoins the "pedantic rigor" in the instant case is to rule in effect that the poor
Court of Industrial Relations to "act according to justice and equity and workers, who can ill-afford an alert competent lawyer, can no longer seek
substantial merits of the case, without regard to technicalities or legal the sanctuary of human freedoms secured to them by the fundamental
forms ..." law, simply because their counsel — erroneously believing that he
received a copy of the decision on September 23, 1969, instead of
On several occasions, We emphasized this doctrine which was re-stated September 22, 1969 - filed his motion for reconsideration September 29,
by Mr. Justice Barredo, speaking for the Court, in the 1970 case 1969, which practically is only one day late considering that September
of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus: 28, 1969 was a Sunday.

As to the point that the evidence being offered by the Many a time, this Court deviated from procedure technicalities when they
petitioners in the motion for new trial is not "newly ceased to be instruments of justice, for the attainment of which such rules
discovered," as such term is understood in the rules of have been devised. Summarizing the jurisprudence on this score, Mr.
procedure for the ordinary courts, We hold that such Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-
criterion is not binding upon the Court of Industrial f Stated:
Relations. Under Section 20 of Commonwealth Act No.
103, 'The Court of Industrial Relations shall adopt its, As was so aptly expressed by Justice Moreland in Alonso
rules or procedure and shall have such other powers as v. Villamor (16 Phil. 315 [1910]. The Villamor decision
generally pertain to a court of justice: Provided, however, was cited with approval in Register of Deeds v. Phil. Nat.
That in the hearing, investigation and determination of Bank, 84 Phil. 600 [1949]; Potenciano v. Court of
any question or controversy and in exercising any duties Appeals, 104 Phil. 156 [1958] and Uy v. Uy, 14243, June
and power under this Act, the Court shall act according to 30, 1961, 2 SCRA 675.), decided as far back as 1910,
justice and equity and substantial merits of the case, "technicality. when it deserts its proper-office as an aid to
without regard to technicalities or legal forms and shall justice and becomes its great hindrance and chief enemy,
not be bound by any technical rules of legal evidence but deserves scant consideration from courts." (Ibid., p, 322.)
may inform its mind in such manner as it may deem just To that norm, this Court has remained committed. The
and equitable.' By this provision the industrial court is late Justice Recto in Blanco v. Bernabe, (63 Phil. 124
disengaged from the rigidity of the technicalities [1936]) was of a similar mind. For him the interpretation of
procedural rule should never "sacrifice the ends justice." sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a
While "procedural laws are no other than technicalities" most cruel penalty, since as aforestated the Union leaders depend on
view them in their entirety, 'they were adopted not as their wages for their daily sustenance as well as that of their respective
ends themselves for the compliance with which courts families aside from the fact that it is a lethal blow to unionism, while at the
have organized and function, but as means conducive to same time strengthening the oppressive hand of the petty tyrants in the
the realization the administration of the law and of justice localities.
(Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice Mr. Justice Douglas articulated this pointed reminder:
of substantial rights of a litigant in altar of sophisticated
technicalities with impairment of the sacred principles of The challenge to our liberties comes frequently not from
justice." (Potenciano v. Court of Appeals, 104 Phil. 156, those who consciously seek to destroy our system of
161 [1958]). As succinctly put by Justice Makalintal, they Government, but from men of goodwill — good men who
"should give way to the realities of the situation." allow their proper concerns to blind them to the fact that
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA what they propose to accomplish involves an impairment
1016, 1019). In the latest decision in point promulgated in of liberty.
1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee v.
Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice
... The Motives of these men are often commendable.
Zaldivar was partial to an earlier formulation of Justice
What we must remember, however, is thatpreservation of
Labrador that rules of procedure "are not to be applied in
liberties does not depend on motives. A suppression of
a very rigid, technical sense"; but are intended "to help
liberty has the same effect whether the suppress or be a
secure substantial justice." (Ibid., p. 843) ... 30-g
reformer or an outlaw. The only protection against
misguided zeal is a constant alertness of the infractions of
Even if the questioned Court of Industrial Relations orders and rule were the guarantees of liberty contained in our
to be given effect, the dismissal or termination of the employment of the Constitution. Each surrender of liberty to the demands of
petitioning eight (8) leaders of the Union is harsh for a one-day absence the moment makes easier another, larger surrender. The
from work. The respondent Court itself recognized the severity of such a battle over the Bill of Rights is a never ending one.
sanction when it did not include the dismissal of the other 393 employees
who are members of the same Union and who participated in the
... The liberties of any person are the liberties of all of us.
demonstration against the Pasig police. As a matter of fact, upon the
intercession of the Secretary of Labor, the Union members who are not
officers, were not dismissed and only the Union itself and its thirteen (13) ... In short, the Liberties of none are safe unless the
officers were specifically named as respondents in the unfair labor liberties of all are protected.
practice charge filed against them by the firm (pp. 16-20, respondent's
Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent ... But even if we should sense no danger to our own
firm insinuates that not all the 400 or so employee participated in the liberties, even if we feel secure because we belong to a
demonstration, for which reason only the Union and its thirteen (13) group that is important and respected, we must recognize
officers were specifically named in the unfair labor practice charge (p. 20, that our Bill of Rights is a code of fair play for the less
respondent's brief). If that were so, then many, if not all, of the morning fortunate that we in all honor and good conscience must
and regular shifts reported for work on March 4, 1969 and that, as a be observe. 31
consequence, the firm continued in operation that day and did not sustain
any damage. The case at bar is worse.

The appropriate penalty — if it deserves any penalty at all — should have Management has shown not only lack of good-will or good intention, but
been simply to charge said one-day absence against their vacation or a complete lack of sympathetic understanding of the plight of its laborers
who claim that they are being subjected to indignities by the local police, as the right of the employer to discharge for cause
It was more expedient for the firm to conserve its income or profits than to (Philippine Education Co. v. Union of Phil. Educ.
assist its employees in their fight for their freedoms and security against Employees, L-13773, April 29, 1960) is undenied. The
alleged petty tyrannies of local police officers. This is sheer opportunism. Industrial Peace Act does not touch the normal exercise
Such opportunism and expediency resorted to by the respondent of the right of the employer to select his employees or to
company assaulted the immunities and welfare of its employees. It was discharge them. It is directed solely against the abuse of
pure and implement selfishness, if not greed. that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177
Of happy relevance is the 1967 case of Republic Savings Bank vs. [1941])...
C.I.R., 32 where the petitioner Bank dismissed eight (8) employees for
having written and published "a patently libelous letter ... to the Bank xxx xxx xxx
president demanding his resignation on the grounds of immorality,
nepotism in the appointment and favoritism as well as discrimination in In the final sum and substance, this Court is in unanimity
the promotion of bank employees." Therein, thru Mr. Justice Castro, We that the Bank's conduct, identified as an interference with
ruled: the employees' right of self-organization or as a retaliatory
action, and/or as a refusal to bargain collectively,
It will avail the Bank none to gloat over this admission of constituted an unfair labor practice within the meaning
the respondents. Assuming that the latter acted in their and intendment of section 4(a) of the Industrial Peace
individual capacities when they wrote the letter-charge Act. (Emphasis supplied.) 33
they were nonetheless protected for they were engaged
in concerted activity, in the exercise of their right of self If free expression was accorded recognition and protection to fortify labor
organization that includes concerted activity for mutual aid unionism in the Republic Savings case, supra, where the complaint
and protection, (Section 3 of the Industrial Peace Act ...) assailed the morality and integrity of the bank president no less, such
This is the view of some members of this Court. For, as recognition and protection for free speech, free assembly and right to
has been aptly stated, the joining in protests or demands, petition are rendered all the more justifiable and more imperative in the
even by a small group of employees, if in furtherance of case at bar, where the mass demonstration was not against the company
their interests as such, is a concerted activity protected by nor any of its officers.
the Industrial Peace Act. It is not necessary that union
activity be involved or that collective bargaining be WHEREFORE, judgement is hereby rendered:
contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
(1) setting aside as null and void the orders of the respondent Court of
xxx xxx xxx Industrial Relations dated September 15 and October 9, 1969; and

Instead of stifling criticism, the Bank should have allowed (2) directing the re instatement of the herein eight (8) petitioners, with full
the respondents to air their grievances. back pay from the date of their separation from the service until re
instated, minus one day's pay and whatever earnings they might have
xxx xxx xxx realized from other sources during their separation from the service.

The Bank defends its action by invoking its right to With costs against private respondent Philippine Blooming Company, Inc.
discipline for what it calls the respondents' libel in giving
undue publicity to their letter-charge. To be sure, the right Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
of self-organization of employees is not unlimited
(Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]),
Makalintal, C.J, took no part.
Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de
Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and
(6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or


deny said projected mass demonstration at Malacañang
Separate Opinions on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the
planned demonstration and stated that the demonstration
or rally cannot be cancelled because it has already been
agreed upon in the meeting. Pagcu explained further that
BARREDO, J., dissenting: the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with
Management;
I bow in respectful and sincere admiration, but my sense of duty compels
me to dissent.
6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the
The background of this case may be found principally in the stipulation of
demonstration is an inalienable right of the union
facts upon which the decision under review is based. It is as follows:
guaranteed by the Constitution but emphasized, however,
that any demonstration for that matter should not unduly
1. That complainant Philippine Blooming Mills, Company, prejudice the normal operation of the Company. For
Inc., is a corporation existing and operating under and by which reason, the Company, thru Atty. C.S. de Leon,
virtue of the laws of the Philippines with corporate warned the PBMEO representatives that workers who
address at 666 Muelle de Binondo, Manila, which is the belong to the first and regular shifts, who without previous
employer of respondent; leave of absence approved by the Company, particularly
the officers present who are the organizers of the
2. That Philippine Blooming Mills Employees Organization demonstration, who shall fail to report for work the
PBMEO for short, is a legitimate labor organization, and following morning (March 4, 1969) shall be dismissed,
the respondents herein are either officers of respondent because such failure is a violation of the existing CBA
PBMEO or members thereof; and, therefore, would be amounting to an illegal strike;

3. That on March 2, 1969 complainant company learned 7. That at about 5:00 P.M. on March 3, 1969, another
of the projected mass demonstration at Malacañang in meeting was convoked. Company represented by Atty.
protest against alleged abuses of the Pasig Police C.S. de Leon, Jr. The Union panel was composed of:
Department to be participated by the first shift (6:00 AM Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and
— 2:00 PM workers as well as those working in the Florencio Padrigano. In this afternoon meeting of March
regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 3, 1969, Company reiterated and appealed to the PBMEO
PM in the morning of March 4, 1969; representatives that while all workers may join the
Malacañang demonstration, the workers for the first and
4. That a meeting was called by the Company on March regular shift of March 4, 1969 should be excused from
3, 1969 at about 11:00 A.M. at the Company's canteen, joining the demonstration and should report for work; and
and those present were: for the Company: (1) Mr. Arthur thus utilize the workers in the 2nd and 3rd shifts in order
L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all not to violate the provisions of the CBA, particularly Article
department and section heads. For the PBMEO (1) XXIV "NO LOCKOUT — NO STRIKE". All those who will
not follow this warning of the Company shall be Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod
dismissed; De Leon reiterated the Company's warning who are directly responsible for perpetrating this unfair
that the officers shall be primarily liable being the labor practice act, are hereby considered to have lost
organizers of the mass demonstration. The union panel their status as employees of the Philippine Blooming
countered that it was rather too late to change their plans Mills, Inc. (p. 8, Annex F.)
inasmuch as the Malacañang demonstration will be held
the following morning; and Although it is alleged in the petition herein that petitioners were notified of
this decision on September 23, 1969, there seems to be no serious
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO question that they were actually served therewith on September 22,
sent a cablegram to the Company which was received 1969. In fact, petitioners admitted this date of notice in paragraph 2 of
9:50 A.M., March 4, 1969, the contents of which are as their Petition for Relief dated October 30, 1969 and filed with the
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT industrial court on the following day. (See Annex K.)
EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969. It is not controverted that it was only on September 29, 1969, or seven
(7) days after they were notified of the court's decision, that petitioners
Additionally, the trial court found that "the projected demonstration did in filed their motion for reconsideration with the industrial court; as it is also
fact occur and in the process paralyzed to a large extent the operations not disputed that they filed their "Arguments in Support of the
of the complainant company". (p. 5, Annex F). Respondents' Motion for Reconsideration" only on October 14, 1969.
(See Annex I.) In other words, petitioners' motion for reconsideration was
Upon these facts the Prosecution Division of the Court of Industrial filed two (2) days after the lapse of the five (5) day period provided for the
Relations filed with said court a complaint for Unfair Labor Practice filing thereof in the rules of the Court of Industrial Relations, whereas the
against petitioners charging that: . "Arguments" were filed five (5) days after the expiration of the period
therefor also specified in the same rules.
3. That on March 4, 1969, respondents (petitioners
herein) particularly those in the first shift, in violation of Accordingly, the first issue that confronts the Court is the one raised by
the existing collective bargaining agreement and without respondent private firm, namely, that in view of the failure of petitioners to
filing the necessary notice as provided for by law, failed to file not only their motion for reconsideration but also their arguments in
report for work, amounting to a declaration of strike; support thereof within the periods respectively fixed in the rules therefor,
the Court of Industrial Relations acted correctly and within the law in
4. That the above acts are in violation of Section 4(a) rendering and issuing its impugned order of October 9, 1969 dismissing
subparagraph 6, in relation to Sections 13, 14 and 15 of petitioners' motion for reconsideration.
Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.) Respondent's contention presents no problem. Squarely applicable to the
facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of
After due hearing, the court rendered judgment, the dispositive part of Industrial Relations1 wherein it was ruled that:
which read's:
August 6, 1963. Petitioner received a copy of the decision
IN VIEW HEREOF, the respondent Philippine Blooming of the then Associate Judge Arsenio I. Martinez, the
Mills Employees Organization is found guilty of bargaining dispositive part of which was set forth earlier in this
in bad faith and is hereby ordered to cease and desist opinion.
from further committing the same and its representatives
namely: respondent Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
August 12, 1963. Petitioner filed a motion for 2. But has that judgment reached the stage of finality in
reconsideration. No arguments were advanced in support the sense that it can no longer, be disturbed?
thereof.
CIR Rules of Procedure, as amended, and the
August 21, 1963. Petitioner moved for additional time to jurisprudence of this Court both answer the question in
file its arguments in support of its motion to reconsider. the affirmative.

August 27, 1963. Petitioner filed its arguments in support Section 15 of the CIR Rules requires that one who seeks
of its aforesaid motion seeking reconsideration. to reconsider the judgment of the trial judge must do so
within five (5) days from the date on which he received
September 16, 1963. CIR en banc resolved to dismiss the notice of the decision, subject of the motion. Next follows
motion for reconsideration. Ground therefor was that the Section 16 which says that the motion must be submitted
arguments were filed out of time. with arguments supporting the same. But if said
arguments could not be submitted simultaneously with the
October 3, 1963. Petitioner filed its notice of appeal and motion, the same section commands the 'the movant shall
at the same time lodged the present petition with this file the same within ten (10) days from the date of the
Court. filing of his motion for reconsideration.' Section 17 of the
same rules admonishes a movant that "(f)ailure to
observe the above-specified periods shall be sufficient
Upon respondent Perlado's return and petitioner's brief
cause for dismissal of the motion for reconsideration or
(respondents did not file their brief), the case is now
striking out of the answer and/or the supporting
before us for resolution.
arguments, as the case may be".
1. That the judgment appealed from is a final judgment —
Not that the foregoing rules stand alone. Jurisprudence
not merely an interlocutory order — there is no doubt. The
has since stabilized the enforceability thereof. Thus,
fact that there is need for computation of respondent
in Bien vs. Castillo, (97 Phil. 956) we ruled that where a
Perlado's overtime pay would not render the decision
pro forma motion for reconsideration was filed out of time
incomplete. This in effect is the holding of the Court in
its denial is in order pursuant to CIR rules, regardless of
Pan American World Airways System (Philippines) vs.
whether the arguments in support of said motion were or
Pan American Employees Association, which runs thus: 'It
were not filed on time. Pangasinan Employees Laborers
is next contended that in ordering the Chief of the
& Tenants Association (PELTA) vs. Martinez, (L-13846,
Examining Division or his representative to compute the
May 20, 1960) pronounced that where a motion to
compensation due, the Industrial Court unduly delegated
reconsider is filed out of time, the order or decision
its judicial functions and thereby rendered an incomplete
subject of reconsideration comes final. And so also,
decision. We do not believe so. Computation of the
where the arguments in support of the motion for
overtime pay involves a mechanical function, at most.
reconsideration are filed beyond the ten-day reglementary
And the report would still have to be submitted to the
period, the pre forma motion for reconsideration although
Industrial Court for its approval, by the very terms of the
seasonably filed must nevertheless be denied. This in
order itself. That there was no specification of the amount
essence is our ruling in Local 7, Press & Printing Free
of overtime pay in the decision did not make it incomplete,
Workers (FFW) vs. Tabigne. The teaching in Luzon
since this matter should necessarily be made clear
Stevedoring Co., Inc. vs. Court of Industrial Relations, is
enough in the implementation of the decision (see Malate
that where the motion for reconsideration is denied upon
Taxicab & Garage, Inc. vs. CIR, et al.,
the ground that the arguments in support thereof were
L-8718, May 11, 1956).
filed out of time, the order or decision subject of the Petitioner cannot complain against CIR's ruling of
motion becomes "final and unappealable". September 16, 1963 dismissing the motion for
reconsideration on the ground that the supporting
We find no difficulty in applying the foregoing rules and arguments were filed out of time. That ruling in effect
pronouncements of this Court in the case before us. On denied the motion for extension.
August 6, petitioner received a copy of the judgment of
Judge Arsenio I. Martinez aforesaid. Petitioner's motion to We rule that CIR's judgment has become final and
reconsider — without arguments in support thereof — of unappealable. We may not review the same.
August 12 was filed on time. For, August 11, the end of
the five-day reglementary period to file a motion for Notwithstanding this unequivocal and unmistakable precedent, which has
reconsideration, was a Sunday. But, actually, the written not been in any way modified, much less revoked or reversed by this
arguments in support of the said motion were submitted Court, the main opinion has chosen not only to go into the merits of
to the court on August 27. The period from August 12 to petitioners' pose that the respondent court erred in holding them guilty of
August 27, is a space of fifteen (15) days. Surely enough, bargaining in bad faith but also to ultimately uphold petitioners' claim for
said arguments were filed out of time — five (5) days late. reinstatement on constitutional grounds.
And the judgment had become final.
Precisely because the conclusions of the main opinion are predicated on
3. There is, of course, petitioner's motion of August 21, an exposition of the constitutional guarantees of freedoms of speech and
1963 seeking extension of time within which to present its peaceful assembly for redress of grievances, so scholarly and masterful
arguments in support of its motion. Counsel in his petition that it is bound to overwhelm Us unless We note carefully the real issues
before this Court pleads that the foregoing motion was in this case, I am constrained, over and above my sincere admiration for
grounded on the 'extremely busy and difficult schedule of the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to
counsel which would not enable him to do so within the dutifully state that as presented by petitioners themselves and in the light
stated ten-day reglementary period. The arguments were of its attendant circumstances, this case does not call for the resolution of
only filed on August 27 — five (5) days late, as aforesaid. any constitutional issue. Admittedly, the invocation of any constitutional
guarantee, particularly when it directly affects individual freedoms
The foregoing circumstances will not avail petitioner any. enshrined in the bill of rights, deserves the closest attention of this Court.
It is to be noted that the motion for expansion of time was It is my understanding of constitutional law and judicial practices related
filed only on August 21, that is, one day before the due thereto, however, that even the most valuable of our constitutional rights
date which is August 22. It was petitioner's duty to see to may be protected by the courts only when their jurisdiction over the
it that the court act on this motion forthwith or at least subject matter is unquestionably established and the applicable rules of
inquire as to the fate thereof not later than the 22nd of procedure consistent with substantive and procedural due process are
August. It did not. It merely filed its arguments on the observed. No doubt no constitutional right can be sacrificed in the altar of
27th. procedural technicalities, very often fittingly downgraded as niceties but
as far as I know, this principle is applied to annul or set aside final
To be underscored at this point is that "obviously to speed judgments only in cases wherein there is a possible denial of due
up the disposition of cases", CIR "has a standing rule process. I have not come across any instance, and none is mentioned or
against the extension of the ten-day period for filing cited in the well-documented main opinion, wherein a final and executory
supporting arguments". That no-extension policy should judgment has been invalidated and set aside upon the ground that the
have placed petitioner on guard. It should not have simply same has the effect of sanctioning the violation of a constitutional right,
folded its arms, sit by supinely and relied on the court's unless such violation amounts to a denial of due process.
generosity. To compound petitioner's neglect, it filed the
arguments only on August 27, 1953, knowing full well that Without support from any provision of the constitution or any law or from
by that time the reglementary period had expired. any judicial precedent or reason of principle, the main opinion nudely and
unqualifiedly asserts, as if it were universally established and accepted On the other hand, the complete argument submitted by
as an absolute rule, that the violation of a constitutional right divests the petitioners on this point in their brief runs thus:
court of jurisdiction; and as a consequence its judgment is null and void
and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663, III
which is mentioned almost in passing, does uphold the proposition that
"relief from a criminal conviction secured at the sacrifice of constitutional ISSUES
liberties, may be obtained through habeas corpus proceedings even after
the finality of the judgment". And, of course, Chavez is correct; as is
1. Does the refusal to heed a warning in the exercise of a
also Abriol vs. Homeres2 which, in principle, served as its precedent, for
fundamental right to peaceably assemble and petition the
the very simple reason that in both of those cases, the accused were
government for redress of grievances constitute
denied due process. In Chavez, the accused was compelled to testify
bargaining in bad faith? and,
against himself as a witness for the prosecution; in Abriol, the accused
was denied his request to be allowed to present evidence to establish his
defense after his demurrer to the People's evidence was denied. Do the facts found by the court below justify the
declaration and conclusion that the union was guilty of
bargaining in bad faith meriting the dismissal of the
As may be seen, however, the constitutional issues involved in those
persons allegedly responsible therefore?
cases are a far cry from the one now before Us. Here, petitioners do not
claim they were denied due process. Nor do they pretend that in denying
their motion for reconsideration, "the respondent Court of Industrial 2. Was there grave abuse of discretion when the
Relations and private firm trenched upon any of their constitutional respondent court refused to act one way or another on
immunities ...," contrary to the statement to such effect in the main the petition for relief from the resolution of October 9,
opinion. Indeed, neither in the petition herein nor in any of the other 1969?
pleading of petitioners can any direct or indirect assertion be found
assailing the impugned decision of the respondent court as being null IV
and void because it sanctioned a denial of a valued constitutional liberty.
ARGUMENT
In their petition, petitioners state the issue for Our resolution as follows:
The respondent Court erred in finding the petition union
Petitioners herein humbly submit that the issue to be guilty of bargaining in bad faith and consequently
resolved is whether or not the respondent Court en dismissing the persons allegedly responsible therefor,
banc under the facts and circumstances, should consider because such conclusion is country to the evidence on
the Motion for Reconsideration filed by your petitioners. record; that the dismissal of leaders was discriminatory.

Petitioners, therefore, in filing this petition for a writ of As a result of exercising the constitutional rights of
certiorari, humbly beg this Honorable Court to treat this freedom to assemble and petition the duly constituted
petition under Rule 43 and 65 of the Rules of Court. authorities for redress of their grievances, the petitioners
were charged and then condemned of bargaining in bad
xxx xxx xxx faith.

The basic issue therefore is the application by the Court The findings that petitioners were guilty of bargaining in
en banc of the strict and narrow technical rules of bad faith were not borne out by the records. It was not
procedure without taking into account justice, equity and even alleged nor proven by evidence. What has been
substantial merits of the case. alleged and which the respondent company tried to prove
was that the demonstration amounted to a strike and
hence, a violation of the provisions of the "no-lockout — Fourth, the findings of the respondent court that the
no strike" clause of the collective bargaining agreement. demonstration if allowed will practically give the union the
However, this allegation and proof submitted by the right to change the working conditions agreed in the CBA
respondent company were practically resolved when the is a conclusion of facts, opinionated and not borne by any
respondent court in the same decision stated evidence on record. The demonstration did not practically
categorically: change the terms or conditions of employment because it
was only for one (1) day and the company knew about it
'The company alleges that the walkout before it went through. We can even say that it was the
because of the demonstration is company who bargained in bad faith, when upon
tantamount to a declaration of a strike. We representation of the Bureau of Labor not to dismiss the
do not think so, as the same is not rooted employees demonstrating, the company tacitly approved
in any industrial dispute although there is the same and yet while the demonstration was in
a concerted act and the occurrence of a progress, the company filed a ULP Charge and
temporary stoppage of work.' (Emphasis consequently dismissed those who participated.
supplied, p. 4, 5th paragraph, Decision.)
Records of the case show that more or less 400 members
The respondent court's findings that the of the union participated in the demonstration and yet, the
petitioner union bargained in bad faith is respondent court selected the eight officers to be
not tenable because: dismissed from the union thus losing their status as
employees of the respondent company. The respondent
First, it has not been alleged nor proven by the court should have taken into account that the company's
respondent company; . action in allowing the return of more or less three hundred
ninety two (392) employees/members of the union is an
act of condonation and the dismissal of the eight (8)
Second, before the demonstration, the petitioner union
officers is an act of discrimination (Phil. Air Lines Inc., vs.
and the respondent company convened twice in a
Phil. Air Lines Employees Association, G.R. No. L-8197,
meeting to thresh out the matter of demonstration.
Oct. 31, 1958). Seemingly, from the opinion stated in the
Petitioners requested that the employees and workers be
decision by the court, while there is a collective
excused but the respondent company instead of granting
bargaining agreement, the union cannot go on
the request or even settling the matter so that the hours of
demonstration or go on strike because it will change the
work will not be disrupted, immediately threatened the
terms and conditions of employment agreed in the CBA. It
employees of mass dismissal;
follows that the CBA is over and above the constitutional
rights of a man to demonstrate and the statutory rights of
Third, the refusal of the petitioner union to grant the a union to strike as provided for in Republic Act 875. This
request of the company that the first shift shall be creates a bad precedent because it will appear that the
excluded in the demonstration is not tantamount to rights of the union is solely dependent upon the CBA.
bargaining in bad faith because the company knew that
the officers of the union belonged to the first shift, and
One of the cardinal primary rights which must be
that the union cannot go and lead the demonstration
respected in proceedings before the Court of Industrial
without their officers. It must be stated that the company
Relations is that "the decision must be rendered on the
intends to prohibit its officers to lead and join the
evidence presented at the hearing, or at least contained
demonstration because most of them belonged to the first
in the record and disclosed to the parties affected."
shift; and
(Interstate Commerce Commission vs. L & N R. Co., 227
U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining
the administrative tribunal to the evidence disclosed to the paramount to the provision in the Collective Bargaining
parties, can the latter be protected in their rights to know Agreement and such attempt to override the constitutional
and meet the case against them. (Ang Tibay vs. CIR, provision would be null and void. These fundamental
G.R. No. L-45496, February 27, 1940.) rights of the petitioners were not taken into consideration
in the deliberation of the case by the respondent court;
The petitioners respectfully and humbly submit that there
is no scintilla of evidence to support the findings of the Thus, it is clear from the foregoing contentions that petitioners are not
respondent court that the petitioner union bargained in raising any issue of due process. They do not posit that the decision of
bad faith. Corollary therefore, the dismissal of the the industrial court is null and void on that constitutional ground. True it is
individual petitioners is without basis either in fact or in that they fault the respondent court for having priced the provisions of the
law. collective bargaining agreement herein involved over and above their
constitutional right to peaceably assemble and petition for redress of their
Additionally, in their reply they also argued that: grievances against the abuses of the Pasig police, but in no sense at all
do they allege or contend that such action affects its jurisdiction in a
1) That respondent court's finding that petitioners have manner that renders the proceedings a nullity. In other words, petitioners
been guilty of bargaining in bad faith and consequently themselves consider the alleged flaw in the court's action as a mere error
lost their status as employees of the respondent company of judgment rather than that of jurisdiction which the main opinion
did not meet the meaning and comprehension of projects. For this Court to roundly and indignantly condemn private
"substantial merits of the case." Bargaining in bad faith respondent now for the grievous violation of the fundamental law the
has not been alleged in the complaint (Annex "C", main opinion sees in its refusal to allow all its workers to join the
Petition) nor proven during the hearing of the can. The demonstration in question, when that specific issue has not been duly
important and substantial merit of the case is whether presented to Us and properly argued, is to my mind unfair and unjust, for
under the facts and circumstances alleged in respondent the simple reason that the manner this case was brought to Us does not
company's pleadings, the demonstration done by the afford it the opportunity to be heard in regard to such supposed
petitioners amounted to on "illegal strike" and therefore in constitutional transgression.
violation of the "no strike — no lock out" clause of the
Collective Bargaining Agreement. Petitioners respectfully To be sure, petitioners do maintain, that respondent court committed an
reiterate and humbly submit, that the respondent court error of jurisdiction by finding petitioners guilty of bargaining in bad faith
had altogether opined and decided that such when the charge against them alleged in the complaint was for having
demonstration does not amount to a strike. Hence, with conducted a mass demonstration, which "amounted to a strike", in
that findings, petitioners should have been absolved of violation of the Collective Bargaining Agreement, but definitely, this
the charges against them. Nevertheless, the same jurisdictional question has no constitutional color. Indeed, We can even
respondent court disregarding, its own findings, went out assume for the sake of argument, that the trial judge did err in not giving
of bounds by declaring the petitioners as having preferential importance to the fundamental freedoms invoked by the
"bargained in faith." The stand of the respondent court is petitioners over the management and proprietary attributes claimed by
fallacious, as it follows the principle in logic as "non- the respondent private firm — still, We cannot rightly hold that such
siquitor"; disregard of petitioners' priceless liberties divested His Honor of
jurisdiction in the premises. The unbending doctrine of this Court is that
2) That again respondents wanted to impress that the "decisions, erroneous or not, become final after the period fixed by law;
freedom to assemble peaceably to air grievances against litigations would be endless, no questions would be finally settled; and
the duly constituted authorities as guaranteed in our titles to property would become precarious if the losing party were
Constitution is subject to the limitation of the agreement in allowed to reopen them at any time in the future".3
the Collective Bargaining Agreement. The fundamental
rights of the petitioners to free speech and assembly is
I only have to add to this that the fact that the error is in the interpretation, jurisdiction over constitutional issues, no matter how important they may
construction or application of a constitutional precept not constituting a be, there must first be a showing of compliance with the applicable
denial of due process, should not make any difference. Juridically, a party procedural law or rules, among them, those governing appeals from the
cannot be less injured by an overlooked or erroneously sanctioned Court of Industrial Relations involved herein. Consequently, if by law or
violation of an ordinary statute than by a misconstrued or constitutional rule, a judgment of the industrial court is already final and executory, this
injunction affecting his individual, freedoms. In both instances, there is Court would be devoid of power and authority to review, much less alter
injustice which should be intolerable were it not for the more paramount or modify the same, absent any denial of due process or fatal defect of
considerations that inform the principle of immutability of final judgments. jurisdiction. It must be borne in mind that the situation confronting Us now
I dare say this must be the reason why, as I have already noted, the main is not merely whether or not We should pass upon a question or issue
opinion does not cite any constitutional provision, law or rule or any not specifically raised by the party concerned, which, to be sure, could be
judicial doctrine or principle supporting its basic holding that infringement enough reason to dissuade Us from taking pains in resolving the same;
of constitutional guarantees, other than denial of due process, divests rather, the real problem here is whether or not We have jurisdiction to
courts of jurisdiction to render valid judgments. entertain it. And, in this regard, as already stated earlier, no less than
Justice Conrado Sanchez, the writer of Chavez, supra., which is being
In this connection, it must be recalled that the teaching of Philippine relied upon by the main opinion, already laid down the precedent
Association of Colleges and Universities vs. Secretary of in Elizalde vs. Court, supra, which for its four-square applicability to the
Education,4 following Santiago vs. Far Eastern Broadcasting,5 is that "it is facts of this case, We have no choice but to follow, that is, that in view of
one of our (the Supreme Court's) decisional practices that unless a reconsideration but even their argument supporting the same within the
constitutional point is specifically raised, insisted upon and adequately prescribed period, "the judgment (against them)has become final, beyond
argued, the court will not consider it". In the case at bar, the petitioners recall".
have not raised, they are not insisting upon, much less have they
adequately argued the constitutional issues so extendedly and ably Indeed, when I consider that courts would be useless if the finality and
discussed in the main opinion. enforceability of their judgments are made contingent on the correctness
thereof from the constitutional standpoint, and that in truth, whether or not
Indeed, it does not seem wise and sound for the Supreme Court to hold they are correct is something that is always dependent upon combined
that the erroneous resolution by a court of a constitutional issue not opinion of the members of the Supreme Court, which in turn is naturally
amounting to a denial of due process renders its judgment or decision as changeable as the members themselves are changed, I cannot
null and void, and, therefore, subject to attack even after said judgment conceive of anything more pernicious and destructive to a trustful
or decision has become final and executory. I have actually tried to bring administration of justice than the idea that, even without any showing of
myself into agreement with the views of the distinguished and learned denial of due process or want of jurisdiction of the court, a final and
writer of the main opinion, if only to avoid dissenting from his well executory judgment of such court may still be set aside or reopened in
prepared thesis, but its obvious incongruity with settled jurisprudence instances other than those expressly allowed by Rule 38 and that of
always comes to the fore to stifle my effort. extrinsic fraud under Article 1146(1) of the Civil Code.7 And just to
emphasize the policy of the law of respecting judgments once they have
As a matter of fact, for a moment, it appeared to me as if I could go along become final, even as this Court has ruled that final decisions are mute in
with petitioners under the authority of our constitutionally irreducible the presence of fraud which the law abhors,8 it is only when the fraud is
appellate jurisdiction under Section 2(5) of Article VII of the extrinsic and not intrinsic that final and executory judgments may be set
Philippines6 (reenacted practically ipssisimis verbis in Section 5(2) of the aside,9and this only when the remedy is sought within the prescriptive
1973 Constitution), only to realize upon further reflection that the very period. 10
power granted to us to review decisions of lower courts involving
questions of law(and these include constitutional issues not affecting the Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw,
validity of statutes, treaty, executive agreement, etc.) is not unqualified 82 Phil. 776:
but has to be exercised only in the manner provided in the law of the
Rules of Court. In other words, before We can exercise appellate
Litigation must end and terminate sometime and any such modifications. The public policy of maintaining
somewhere, and it is essential to an effective and efficient faith and respect in judicial decisions, which inform said
administration of justice that once a judgment has doctrines, is admittedly of the highest order. I am not
become final, the winning party be not, through a mere advocating any departure from them. Nor am I trying to
subterfuge, deprived of the fruits of the verdict. Courts put forth for execution a decision that I believe should
must therefore guard against any scheme calculated to have been rather than what it is. All I am doing is to view
bring about that result. Constituted as they are to put an not the judgment of Judge Tengco but the decision of this
end to controversies, courts should frown upon any Court in G.R. No. L-20950, as it is and not as I believe it
attempt to prolong them. should have been, and, by opinion, I would like to guide
the court a quo as to what, in my own view, is the true
Likewise the stern admonition of Justice George Malcolm in Dy Cay v. and correct meaning and implications of decision of this
Crossfield, 38 Phil. 521, thus: Court, not that of Judge Tengco's.

... Public policy and sound practice demand that, at the The main opinion calls attention to many instant precisely involving cases
risk of occasional errors, judgments of courts should in the industrial court, wherein the Court refused to be constrained by
become final at some definite date fixed by law. The very technical rules of procedure in its determination to accord substantial
object for which courts were instituted was to put an end justice to the parties I still believe in those decisions, some of which were
to controversies. To fulfill this purpose and to do so penned by me. I am certain, however, that in none of those precedents
speedily, certain time limits, more or less arbitrary, have did this Court disturb a judgment already final and executory. It too
to be set up to spur on the slothful. 'If a vacillating, obvious to require extended elucidation or even reference any precedent
irresolute judge were allowed to thus keep causes ever or authority that the principle of immutability of final judgments is not a
within his power, to determine and redetermine them term mere technicality, and if it may considered to be in a sense a procedural
after term, to bandy his judgments about from one party rule, it is one that is founded on public policy and cannot, therefore, yield
to the other, and to change his conclusions as freely and to the ordinary plea that it must give priority to substantial justice.
as capriciously as a chamelon may change its hues, then
litigation might become more intolerable than the wrongs Apparently vent on looking for a constitutional point of due process to
it is intended to redress.' (See Arnedo vs. Llorente and hold on, the main opinion goes far as to maintain that the long existing
Liongson (1911), 18 Phil., 257.). and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this
My disagreement with the dissenters in Republic vs. Judge de los case does not implement on reinforce or strengthen the constitutional
Angeles, rights affected, but instead constricts the same to the point of nullifying
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability the enjoyment thereof by the petitioning employees. Said Court on
and invulnerability of final judgments but rather on the correct Industrial Relations Rule, promulgated as it was pursuant to mere
interpretation of the contents of the judgment in question therein. legislative delegation, is unreasonable and therefore is beyond the
Relevantly to this case at bar, I said then: authority granted by the Constitution and the law. A period of five (5)
days within which to file a motion for reconsideration is too short,
The point of res adjudicata discussed in the dissents has especially for the aggrieve workers, who usually do not have the ready
not escaped my attention. Neither am I overlooking the funds to meet the necessary expenses therefor. In case of the Court of
point of the Chief Justice regarding the dangerous and Appeal and the Supreme Court, a period of fifteen (15) days has been
inimical implications of a ruling that would authorize the fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10,
revision, amendment or alteration of a final and executory Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The
judgment. I want to emphasize that my position in this delay in the filing of the motion for reconsideration could have been only
opinion does not detract a whit from the soundness, one day if September 28, 1969 was not a Sunday. This fact accentuates
authority and binding force of existing doctrines enjoining
the unreasonableness of the Court of Industrial Relations Rule insofar as As implemented and enforced in actual practice, this rule, as everyone
circumstances of the instant case are concerned." acquainted with proceedings in the industrial court well knows, precisely
permits the party aggrieved by a judgment to file no more than a pro-
I am afraid the zeal and passion of these arguments do not justify the forma motion for reconsideration without any argument or lengthy
conclusion suggested. Viewed objectively, it can readily be seen that discussion and with barely a brief statement of the fundamental ground or
there can hardly be any factual or logical basis for such a critical view of grounds therefor, without prejudice to supplementing the same by making
the rule in question. Said rule provides: the necessary exposition, with citations laws and authorities, in the
written arguments the be filed (10) days later. In truth, such a pro-forma
MOTIONS FOR RECONSIDERATION motion has to effect of just advising the court and the other party that the
movant does not agree with the judgment due to fundamental defects
stated in brief and general terms. Evidently, the purpose of this
Sec. 15. The movant shall file the motion, in six copies,
requirement is to apprise everyone concerned within the shortest
within five (5) days from the date on which he receives
possible time that a reconsideration is to sought, and thereby enable the
notice of the order or decision, object of the motion for
parties concerned to make whatever adjustments may be warranted by
reconsideration, the same to be verified under oath with
the situation, in the meanwhile that the litigation is prolonged. It must
respect to the correctness of the allegations of fact, and
borne in mind that cases in the industrial court may involve affect the
serving a copy thereof, personally or by registered mail,
operation of vital industries in which labor-management problems might
on the adverse party. The latter may file an answer, in six
require day-to-day solutions and it is to the best interests of justice and
(6) copies, duly verified under oath.
concerned that the attitude of each party at every imports juncture of the
case be known to the other so that both avenues for earlier settlement
Sec. 16. Both the motion and the answer shall be may, if possible, be explored.
submitted with arguments supporting the same. If the
arguments can not be submitted simultaneously with said
There can be no reason at all to complain that the time fixed by the rule is
motions, upon notice Court, the movant shall file same
short or inadequate. In fact, the motion filed petitioners was no more than
within ten (10) days from the date of the filing of his
the following:
motion for reconsideration. The adverse party shall also
file his answer within ten (10) days from the receipt by
him of a copy of the arguments submitted by the movant. MOTION FOR RECONSIDERATION

Sec. 17. After an answer to the motion is registered, or COME NOW movant respondents, through counsel, to
after ten (10) days from the receipt of the arguments in this Honorable Court most respectfully moves for the
support of said motion having been filed, the motion shall RECONSIDERATION of the Order of this Honorable
be deemed submitted for resolution of the Court in banc, Court dated September 17, 1969 on the ground that the
unless it is considered necessary to bear oral arguments, same is not in accordance with law, evidence and facts
in which case the Court shall issue the corresponding adduced during the hearing of the above entitled case.
order or notice to that effect.
Movant-respondents most respectfully move for leave to
Failure to observe the above-specified periods shall be file their respective arguments within ten (10) days
sufficient cause for dismissal of the motion for pursuant to Section 15, 16 & 17 as amended of the Rules
reconsideration or striking out of the answer and/or the of Court.
supporting arguments, as the case may be. (As amended
April 20, 1951, Court of Industrial Relations.). WHEREFORE, it is respectfully prayed that this Motion
for Reconsideration be admitted.
Manila, September 27, 1969. under the Executive Department Withal, if, in order to hasten the
administration of substance justice, this Court did exercise in some
To say that five (5) days is an unreasonable period for the instances its re power to amend its rules, I am positively certain, it has
filing of such a motion is to me simply incomprehensible. done it for the purpose of reviving a case in which the judo has already
What worse in this case is that petitioners have not even become final and executory.
taken the trouble of giving an explanation of their inability
to comply with the rule. Not only that, petitioners were Before closing, it may be mentioned here, that as averred their petition, in
also late five (5) days in filing their written arguments in a belated effort to salvage their Petitioners filed in the industrial court on
support of their motion, and, the only excuse offered for October 31, 1969 a Petition for relief alleging that their failure to file
such delay is that both the President of the Union and the "Arguments in Support of their Motion for Reconsideration within the
office clerk who took charge of the matter forgot to do reglementary period or five (5), if not seven (7), days late "was due to
what they were instructed to do by counsel, which, excusable negligence and honest mistake committed by the President of
according to this Court, as I shall explain anon "is the the respondent Union and on office clerk of the counsel for respondents
most hackneyed and habitual subterfuge employed by as shown attested in their respective affidavits", (See Annexes K, and K-
litigants who fail to observe the procedural requirements 2) which in brief, consisted allegedly of the President's having forgotten
prescribed by the Rules of Court". (Philippine Airlines, Inc. his appointment with his lawyer "despite previous instructions and of the
vs. Arca, infra). And yet, very indignantly, the main said office employee having also coincidentally forgotten "to do the work
opinion would want the Court to overlook such instructed (sic) to (him) by Atty. Osorio" because he "was busy with
nonchalance and indifference. clerical jobs". No sympathy at all can be evoked these allegations, for,
under probably more justification circumstances, this Court ruled out a
In this connection, I might add that in my considered opinion, the rules similar explanation previous case this wise:
fixing periods for the finality of judgments are in a sense more
substantive than procedural in their real nature, for in their operation they We find merit in PAL's petition. The excuse offered
have the effect of either creating or terminating rights pursuant to the respondent Santos as reason for his failure to perfect in
terms of the particular judgment concerned. And the fact that the court due time appeal from the judgment of the Municipal
that rendered such final judgment is deprived of jurisdiction or authority to Court, that counsel's clerk forgot to hand him the court
alter or modify the same enhances such substantive character. Moreover, notice, is the most hackneyed and habitual subterfuge
because they have the effect of terminating rights and the enforcement employed by litigants who fail to observe procedural
thereof, it may be said that said rules partake of the nature also of rules requirements prescribed by the Rules of Court. The
of prescription, which again are substantive. Now, the twin predicates of uncritical acceptance of this kind of common place
prescription are inaction or abandonment and the passage of time or a excuses, in the face of the Supreme Court's repeated
prescribed period. On the other hand, procrastination or failure to act on rulings that they are neither credible nor constitutive of
time is unquestionably a form of abandonment, particularly when it is not excusable negligence (Gaerlan vs. Bernal, L-4039, 29
or cannot be sufficiently explained. The most valuable right of a party January 1952; Mercado vs. Judge Domingo, L-19457,
may be lost by prescription, and be has no reason to complain because December 1966) is certainly such whimsical exercise of
public policy demands that rights must be asserted in time, as otherwise judgment to be a grave abuse of discretion. (Philippine Air
they can be deemed waived. Lines, Inc. Arca, 19 SCRA 300.)

I see no justification whatsoever for not applying these self-evident For the reason, therefore, that the judgment of the industrial court sought
principles to the case of petitioners. Hence, I feel disinclined to adopt the to be reviewed in the present case has already become final and
suggestion that the Court suspend, for the purposes of this case the rules executory, nay, not without the fault of the petitioners, hence, no matter
aforequoted of the Court of Industrial Relations. Besides, I have grave how erroneous from the constitutional viewpoint it may be, it is already
doubts as to whether we can suspend rules of other courts, particularly beyond recall, I vote to dismiss this case, without pronouncement as to
that is not under our supervisory jurisdiction, being administrative agency costs.
TEEHANKEE, J., concurring: proof of actual loss from the one-day stoppage of work was shown by
respondent company, providing basis to the main opinion's premise that
For having carried out a mass demonstration at Malacañang on March 4, its insistence on dismissal of the union leaders for having included the
1969 in protest against alleged abuses of the Pasig police department, first shift workers in the mass demonstration against its wishes was but
upon two days' prior notice to respondent employer company, as against the latter's insistence an act of arbitrary vindictiveness.
that the first shift 1should not participate but instead report for work, under pain of dismissal, the
industrial court ordered the dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration. Only thus could the basic constitutional rights of the individual petitioners
and the constitutional injunction to afford protection to labor be given true
Respondent court's order finding petitioner union guilty on respondent's substance and meaning. No person may be deprived of such basic rights
complaint of bargaining in bad faith and unfair labor practice for having so without due process — which is but "responsiveness to the supremacy of
carried out the mass demonstration, notwithstanding that it concededly reason, obedience to the dictates of justice. Negatively put, arbitrariness
was not a declaration of strike nor directed in any manner against is ruled out and unfairness avoided ... Due process is thus hostile to any
respondent employer, and ordering the dismissal of the union office official action marred by lack of reasonableness. Correctly it has been
manifestly constituted grave abuse of discretion in fact and in law. identified as freedom from arbitrariness."2

There could not be, in fact, bargaining in bad faith nor unfair labor Accordingly, I vote for the setting aside of the appealed orders of the
practice since respondent firm conceded that "the demonstration is an respondent court and concur in the judgment for petitioners as set forth in
inalienable right of the union guaranteed' by the Constitution" and the the main opinion.
union up to the day of the demonstration pleaded by cablegram to the
company to excuse the first shift and allow it to join the demonstration in
accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective


bargaining agreement's "no-strike" clause as would warrant the union Separate Opinions
leaders' dismissal, since as found by respondent court itself the mass
demonstration was not a declaration of a strike, there being no industrial BARREDO, J., dissenting:
dispute between the protagonists, but merely the occurrence of a
temporary stoppage of work" to enable the workers to exercise their I bow in respectful and sincere admiration, but my sense of duty compels
constitutional rights of free expression, peaceable assembly and petition me to dissent.
for redress of grievance against alleged police excesses.
The background of this case may be found principally in the stipulation of
Respondent court's en banc resolution dismissing petitioners' motion for facts upon which the decision under review is based. It is as follows:
reconsideration for having been filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to the negligence of
1. That complainant Philippine Blooming Mills, Company,
petitioners' counsel and/or the union president should likewise be set
Inc., is a corporation existing and operating under and by
aside as a manifest act of grave abuse of discretion. Petitioners' petition
virtue of the laws of the Philippines with corporate
for relief from the normal adverse consequences of the late filing of their
address at 666 Muelle de Binondo, Manila, which is the
motion for reconsideration due to such negligence — which was not
employer of respondent;
acted upon by respondent court — should have been granted,
considering the monstrous injustice that would otherwise be caused the
petitioners through their summary dismissal from employment, simply 2. That Philippine Blooming Mills Employees Organization
because they sought in good faith to exercise basic human rights PBMEO for short, is a legitimate labor organization, and
guaranteed them by the Constitution. It should be noted further that no the respondents herein are either officers of respondent
PBMEO or members thereof;
3. That on March 2, 1969 complainant company learned 7. That at about 5:00 P.M. on March 3, 1969, another
of the projected mass demonstration at Malacañang in meeting was convoked. Company represented by Atty.
protest against alleged abuses of the Pasig Police C.S. de Leon, Jr. The Union panel was composed of:
Department to be participated by the first shift (6:00 AM Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and
— 2:00 PM workers as well as those working in the Florencio Padrigano. In this afternoon meeting of March
regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 3, 1969, Company reiterated and appealed to the PBMEO
PM in the morning of March 4, 1969; representatives that while all workers may join the
Malacañang demonstration, the workers for the first and
4. That a meeting was called by the Company on March regular shift of March 4, 1969 should be excused from
3, 1969 at about 11:00 A.M. at the Company's canteen, joining the demonstration and should report for work; and
and those present were: for the Company: (1) Mr. Arthur thus utilize the workers in the 2nd and 3rd shifts in order
L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all not to violate the provisions of the CBA, particularly Article
department and section heads. For the PBMEO (1) XXIV "NO LOCKOUT — NO STRIKE". All those who will
Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de not follow this warning of the Company shall be
Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and dismissed; De Leon reiterated the Company's warning
(6) Benjamin Pagcu. that the officers shall be primarily liable being the
organizers of the mass demonstration. The union panel
5. That the Company asked the union panel to confirm or countered that it was rather too late to change their plans
deny said projected mass demonstration at Malacañang inasmuch as the Malacañang demonstration will be held
on March 4, 1969. PBMEO thru Benjamin Pagcu who the following morning; and
acted as the spokesman of the union panel, confirmed the
planned demonstration and stated that the demonstration 8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO
or rally cannot be cancelled because it has already been sent a cablegram to the Company which was received
agreed upon in the meeting. Pagcu explained further that 9:50 A.M., March 4, 1969, the contents of which are as
the demonstration has nothing to do with the Company follows: 'REITERATING REQUEST EXCUSE DAY SHIFT
because the union has no quarrel or dispute with EMPLOYEES JOINING DEMONSTRATION MARCH 4,
Management; 1969.

6. That Management, thru Atty. C.S. de Leon, Company Additionally, the trial court found that "the projected demonstration did in
personnel manager, informed PBMEO that the fact occur and in the process paralyzed to a large extent the operations
demonstration is an inalienable right of the union of the complainant company". (p. 5, Annex F).
guaranteed by the Constitution but emphasized, however,
that any demonstration for that matter should not unduly Upon these facts the Prosecution Division of the Court of Industrial
prejudice the normal operation of the Company. For Relations filed with said court a complaint for Unfair Labor Practice
which reason, the Company, thru Atty. C.S. de Leon, against petitioners charging that: .
warned the PBMEO representatives that workers who
belong to the first and regular shifts, who without previous 3. That on March 4, 1969, respondents (petitioners
leave of absence approved by the Company, particularly herein) particularly those in the first shift, in violation of
the officers present who are the organizers of the the existing collective bargaining agreement and without
demonstration, who shall fail to report for work the filing the necessary notice as provided for by law, failed to
following morning (March 4, 1969) shall be dismissed, report for work, amounting to a declaration of strike;
because such failure is a violation of the existing CBA
and, therefore, would be amounting to an illegal strike;
4. That the above acts are in violation of Section 4(a) rendering and issuing its impugned order of October 9, 1969 dismissing
subparagraph 6, in relation to Sections 13, 14 and 15 of petitioners' motion for reconsideration.
Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.) Respondent's contention presents no problem. Squarely applicable to the
facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of
After due hearing, the court rendered judgment, the dispositive part of Industrial Relations1 wherein it was ruled that:
which read's:
August 6, 1963. Petitioner received a copy of the decision
IN VIEW HEREOF, the respondent Philippine Blooming of the then Associate Judge Arsenio I. Martinez, the
Mills Employees Organization is found guilty of bargaining dispositive part of which was set forth earlier in this
in bad faith and is hereby ordered to cease and desist opinion.
from further committing the same and its representatives
namely: respondent Florencio Padrigano, Rufino Roxas, August 12, 1963. Petitioner filed a motion for
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, reconsideration. No arguments were advanced in support
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod thereof.
who are directly responsible for perpetrating this unfair
labor practice act, are hereby considered to have lost August 21, 1963. Petitioner moved for additional time to
their status as employees of the Philippine Blooming file its arguments in support of its motion to reconsider.
Mills, Inc. (p. 8, Annex F.)
August 27, 1963. Petitioner filed its arguments in support
Although it is alleged in the petition herein that petitioners were notified of of its aforesaid motion seeking reconsideration.
this decision on September 23, 1969, there seems to be no serious
question that they were actually served therewith on September 22,
September 16, 1963. CIR en banc resolved to dismiss the
1969. In fact, petitioners admitted this date of notice in paragraph 2 of
motion for reconsideration. Ground therefor was that the
their Petition for Relief dated October 30, 1969 and filed with the
arguments were filed out of time.
industrial court on the following day. (See Annex K.)
October 3, 1963. Petitioner filed its notice of appeal and
It is not controverted that it was only on September 29, 1969, or seven
at the same time lodged the present petition with this
(7) days after they were notified of the court's decision, that petitioners
Court.
filed their motion for reconsideration with the industrial court; as it is also
not disputed that they filed their "Arguments in Support of the
Respondents' Motion for Reconsideration" only on October 14, 1969. Upon respondent Perlado's return and petitioner's brief
(See Annex I.) In other words, petitioners' motion for reconsideration was (respondents did not file their brief), the case is now
filed two (2) days after the lapse of the five (5) day period provided for the before us for resolution.
filing thereof in the rules of the Court of Industrial Relations, whereas the
"Arguments" were filed five (5) days after the expiration of the period 1. That the judgment appealed from is a final judgment —
therefor also specified in the same rules. not merely an interlocutory order — there is no doubt. The
fact that there is need for computation of respondent
Accordingly, the first issue that confronts the Court is the one raised by Perlado's overtime pay would not render the decision
respondent private firm, namely, that in view of the failure of petitioners to incomplete. This in effect is the holding of the Court in
file not only their motion for reconsideration but also their arguments in Pan American World Airways System (Philippines) vs.
support thereof within the periods respectively fixed in the rules therefor, Pan American Employees Association, which runs thus: 'It
the Court of Industrial Relations acted correctly and within the law in is next contended that in ordering the Chief of the
Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated May 20, 1960) pronounced that where a motion to
its judicial functions and thereby rendered an incomplete reconsider is filed out of time, the order or decision
decision. We do not believe so. Computation of the subject of reconsideration comes final. And so also,
overtime pay involves a mechanical function, at most. where the arguments in support of the motion for
And the report would still have to be submitted to the reconsideration are filed beyond the ten-day reglementary
Industrial Court for its approval, by the very terms of the period, the pre forma motion for reconsideration although
order itself. That there was no specification of the amount seasonably filed must nevertheless be denied. This in
of overtime pay in the decision did not make it incomplete, essence is our ruling in Local 7, Press & Printing Free
since this matter should necessarily be made clear Workers (FFW) vs. Tabigne. The teaching in Luzon
enough in the implementation of the decision (see Malate Stevedoring Co., Inc. vs. Court of Industrial Relations, is
Taxicab & Garage, Inc. vs. CIR, et al., that where the motion for reconsideration is denied upon
L-8718, May 11, 1956). the ground that the arguments in support thereof were
filed out of time, the order or decision subject of the
2. But has that judgment reached the stage of finality in motion becomes "final and unappealable".
the sense that it can no longer, be disturbed?
We find no difficulty in applying the foregoing rules and
CIR Rules of Procedure, as amended, and the pronouncements of this Court in the case before us. On
jurisprudence of this Court both answer the question in August 6, petitioner received a copy of the judgment of
the affirmative. Judge Arsenio I. Martinez aforesaid. Petitioner's motion to
reconsider — without arguments in support thereof — of
Section 15 of the CIR Rules requires that one who seeks August 12 was filed on time. For, August 11, the end of
to reconsider the judgment of the trial judge must do so the five-day reglementary period to file a motion for
within five (5) days from the date on which he received reconsideration, was a Sunday. But, actually, the written
notice of the decision, subject of the motion. Next follows arguments in support of the said motion were submitted
Section 16 which says that the motion must be submitted to the court on August 27. The period from August 12 to
with arguments supporting the same. But if said August 27, is a space of fifteen (15) days. Surely enough,
arguments could not be submitted simultaneously with the said arguments were filed out of time — five (5) days late.
motion, the same section commands the 'the movant shall And the judgment had become final.
file the same within ten (10) days from the date of the
filing of his motion for reconsideration.' Section 17 of the 3. There is, of course, petitioner's motion of August 21,
same rules admonishes a movant that "(f)ailure to 1963 seeking extension of time within which to present its
observe the above-specified periods shall be sufficient arguments in support of its motion. Counsel in his petition
cause for dismissal of the motion for reconsideration or before this Court pleads that the foregoing motion was
striking out of the answer and/or the supporting grounded on the 'extremely busy and difficult schedule of
arguments, as the case may be". counsel which would not enable him to do so within the
stated ten-day reglementary period. The arguments were
Not that the foregoing rules stand alone. Jurisprudence only filed on August 27 — five (5) days late, as aforesaid.
has since stabilized the enforceability thereof. Thus,
in Bien vs. Castillo, (97 Phil. 956) we ruled that where a The foregoing circumstances will not avail petitioner any.
pro forma motion for reconsideration was filed out of time It is to be noted that the motion for expansion of time was
its denial is in order pursuant to CIR rules, regardless of filed only on August 21, that is, one day before the due
whether the arguments in support of said motion were or date which is August 22. It was petitioner's duty to see to
were not filed on time. Pangasinan Employees Laborers it that the court act on this motion forthwith or at least
& Tenants Association (PELTA) vs. Martinez, (L-13846, inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the subject matter is unquestionably established and the applicable rules of
27th. procedure consistent with substantive and procedural due process are
observed. No doubt no constitutional right can be sacrificed in the altar of
To be underscored at this point is that "obviously to speed procedural technicalities, very often fittingly downgraded as niceties but
up the disposition of cases", CIR "has a standing rule as far as I know, this principle is applied to annul or set aside final
against the extension of the ten-day period for filing judgments only in cases wherein there is a possible denial of due
supporting arguments". That no-extension policy should process. I have not come across any instance, and none is mentioned or
have placed petitioner on guard. It should not have simply cited in the well-documented main opinion, wherein a final and executory
folded its arms, sit by supinely and relied on the court's judgment has been invalidated and set aside upon the ground that the
generosity. To compound petitioner's neglect, it filed the same has the effect of sanctioning the violation of a constitutional right,
arguments only on August 27, 1953, knowing full well that unless such violation amounts to a denial of due process.
by that time the reglementary period had expired.
Without support from any provision of the constitution or any law or from
Petitioner cannot complain against CIR's ruling of any judicial precedent or reason of principle, the main opinion nudely and
September 16, 1963 dismissing the motion for unqualifiedly asserts, as if it were universally established and accepted
reconsideration on the ground that the supporting as an absolute rule, that the violation of a constitutional right divests the
arguments were filed out of time. That ruling in effect court of jurisdiction; and as a consequence its judgment is null and void
denied the motion for extension. and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663,
which is mentioned almost in passing, does uphold the proposition that
We rule that CIR's judgment has become final and "relief from a criminal conviction secured at the sacrifice of constitutional
unappealable. We may not review the same. liberties, may be obtained through habeas corpus proceedings even after
the finality of the judgment". And, of course, Chavez is correct; as is
also Abriol vs. Homeres2 which, in principle, served as its precedent, for
Notwithstanding this unequivocal and unmistakable precedent, which has
the very simple reason that in both of those cases, the accused were
not been in any way modified, much less revoked or reversed by this
denied due process. In Chavez, the accused was compelled to testify
Court, the main opinion has chosen not only to go into the merits of
against himself as a witness for the prosecution; in Abriol, the accused
petitioners' pose that the respondent court erred in holding them guilty of
was denied his request to be allowed to present evidence to establish his
bargaining in bad faith but also to ultimately uphold petitioners' claim for
defense after his demurrer to the People's evidence was denied.
reinstatement on constitutional grounds.
As may be seen, however, the constitutional issues involved in those
Precisely because the conclusions of the main opinion are predicated on
cases are a far cry from the one now before Us. Here, petitioners do not
an exposition of the constitutional guarantees of freedoms of speech and
claim they were denied due process. Nor do they pretend that in denying
peaceful assembly for redress of grievances, so scholarly and masterful
their motion for reconsideration, "the respondent Court of Industrial
that it is bound to overwhelm Us unless We note carefully the real issues
Relations and private firm trenched upon any of their constitutional
in this case, I am constrained, over and above my sincere admiration for
immunities ...," contrary to the statement to such effect in the main
the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to
opinion. Indeed, neither in the petition herein nor in any of the other
dutifully state that as presented by petitioners themselves and in the light
pleading of petitioners can any direct or indirect assertion be found
of its attendant circumstances, this case does not call for the resolution of
assailing the impugned decision of the respondent court as being null
any constitutional issue. Admittedly, the invocation of any constitutional
and void because it sanctioned a denial of a valued constitutional liberty.
guarantee, particularly when it directly affects individual freedoms
enshrined in the bill of rights, deserves the closest attention of this Court.
It is my understanding of constitutional law and judicial practices related In their petition, petitioners state the issue for Our resolution as follows:
thereto, however, that even the most valuable of our constitutional rights
may be protected by the courts only when their jurisdiction over the Petitioners herein humbly submit that the issue to be
resolved is whether or not the respondent Court en
banc under the facts and circumstances, should consider dismissing the persons allegedly responsible therefor,
the Motion for Reconsideration filed by your petitioners. because such conclusion is country to the evidence on
record; that the dismissal of leaders was discriminatory.
Petitioners, therefore, in filing this petition for a writ of
certiorari, humbly beg this Honorable Court to treat this As a result of exercising the constitutional rights of
petition under Rule 43 and 65 of the Rules of Court. freedom to assemble and petition the duly constituted
authorities for redress of their grievances, the petitioners
xxx xxx xxx were charged and then condemned of bargaining in bad
faith.
The basic issue therefore is the application by the Court
en banc of the strict and narrow technical rules of The findings that petitioners were guilty of bargaining in
procedure without taking into account justice, equity and bad faith were not borne out by the records. It was not
substantial merits of the case. even alleged nor proven by evidence. What has been
alleged and which the respondent company tried to prove
On the other hand, the complete argument submitted by was that the demonstration amounted to a strike and
petitioners on this point in their brief runs thus: hence, a violation of the provisions of the "no-lockout —
no strike" clause of the collective bargaining agreement.
However, this allegation and proof submitted by the
III
respondent company were practically resolved when the
respondent court in the same decision stated
ISSUES categorically:

1. Does the refusal to heed a warning in the exercise of a 'The company alleges that the walkout
fundamental right to peaceably assemble and petition the because of the demonstration is
government for redress of grievances constitute tantamount to a declaration of a strike. We
bargaining in bad faith? and, do not think so, as the same is not rooted
in any industrial dispute although there is
Do the facts found by the court below justify the a concerted act and the occurrence of a
declaration and conclusion that the union was guilty of temporary stoppage of work.' (Emphasis
bargaining in bad faith meriting the dismissal of the supplied, p. 4, 5th paragraph, Decision.)
persons allegedly responsible therefore?
The respondent court's findings that the
2. Was there grave abuse of discretion when the petitioner union bargained in bad faith is
respondent court refused to act one way or another on not tenable because:
the petition for relief from the resolution of October 9,
1969? First, it has not been alleged nor proven by the
respondent company; .
IV
Second, before the demonstration, the petitioner union
ARGUMENT and the respondent company convened twice in a
meeting to thresh out the matter of demonstration.
The respondent Court erred in finding the petition union Petitioners requested that the employees and workers be
guilty of bargaining in bad faith and consequently excused but the respondent company instead of granting
the request or even settling the matter so that the hours of demonstration or go on strike because it will change the
work will not be disrupted, immediately threatened the terms and conditions of employment agreed in the CBA. It
employees of mass dismissal; follows that the CBA is over and above the constitutional
rights of a man to demonstrate and the statutory rights of
Third, the refusal of the petitioner union to grant the a union to strike as provided for in Republic Act 875. This
request of the company that the first shift shall be creates a bad precedent because it will appear that the
excluded in the demonstration is not tantamount to rights of the union is solely dependent upon the CBA.
bargaining in bad faith because the company knew that
the officers of the union belonged to the first shift, and One of the cardinal primary rights which must be
that the union cannot go and lead the demonstration respected in proceedings before the Court of Industrial
without their officers. It must be stated that the company Relations is that "the decision must be rendered on the
intends to prohibit its officers to lead and join the evidence presented at the hearing, or at least contained
demonstration because most of them belonged to the first in the record and disclosed to the parties affected."
shift; and (Interstate Commerce Commission vs. L & N R. Co., 227
U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining
Fourth, the findings of the respondent court that the the administrative tribunal to the evidence disclosed to the
demonstration if allowed will practically give the union the parties, can the latter be protected in their rights to know
right to change the working conditions agreed in the CBA and meet the case against them. (Ang Tibay vs. CIR,
is a conclusion of facts, opinionated and not borne by any G.R. No. L-45496, February 27, 1940.)
evidence on record. The demonstration did not practically
change the terms or conditions of employment because it The petitioners respectfully and humbly submit that there
was only for one (1) day and the company knew about it is no scintilla of evidence to support the findings of the
before it went through. We can even say that it was the respondent court that the petitioner union bargained in
company who bargained in bad faith, when upon bad faith. Corollary therefore, the dismissal of the
representation of the Bureau of Labor not to dismiss the individual petitioners is without basis either in fact or in
employees demonstrating, the company tacitly approved law.
the same and yet while the demonstration was in
progress, the company filed a ULP Charge and Additionally, in their reply they also argued that:
consequently dismissed those who participated.
1) That respondent court's finding that petitioners have
Records of the case show that more or less 400 members been guilty of bargaining in bad faith and consequently
of the union participated in the demonstration and yet, the lost their status as employees of the respondent company
respondent court selected the eight officers to be did not meet the meaning and comprehension of
dismissed from the union thus losing their status as "substantial merits of the case." Bargaining in bad faith
employees of the respondent company. The respondent has not been alleged in the complaint (Annex "C",
court should have taken into account that the company's Petition) nor proven during the hearing of the can. The
action in allowing the return of more or less three hundred important and substantial merit of the case is whether
ninety two (392) employees/members of the union is an under the facts and circumstances alleged in respondent
act of condonation and the dismissal of the eight (8) company's pleadings, the demonstration done by the
officers is an act of discrimination (Phil. Air Lines Inc., vs. petitioners amounted to on "illegal strike" and therefore in
Phil. Air Lines Employees Association, G.R. No. L-8197, violation of the "no strike — no lock out" clause of the
Oct. 31, 1958). Seemingly, from the opinion stated in the Collective Bargaining Agreement. Petitioners respectfully
decision by the court, while there is a collective reiterate and humbly submit, that the respondent court
bargaining agreement, the union cannot go on had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with conducted a mass demonstration, which "amounted to a strike", in
that findings, petitioners should have been absolved of violation of the Collective Bargaining Agreement, but definitely, this
the charges against them. Nevertheless, the same jurisdictional question has no constitutional color. Indeed, We can even
respondent court disregarding, its own findings, went out assume for the sake of argument, that the trial judge did err in not giving
of bounds by declaring the petitioners as having preferential importance to the fundamental freedoms invoked by the
"bargained in faith." The stand of the respondent court is petitioners over the management and proprietary attributes claimed by
fallacious, as it follows the principle in logic as "non- the respondent private firm — still, We cannot rightly hold that such
siquitor"; disregard of petitioners' priceless liberties divested His Honor of
jurisdiction in the premises. The unbending doctrine of this Court is that
2) That again respondents wanted to impress that the "decisions, erroneous or not, become final after the period fixed by law;
freedom to assemble peaceably to air grievances against litigations would be endless, no questions would be finally settled; and
the duly constituted authorities as guaranteed in our titles to property would become precarious if the losing party were
Constitution is subject to the limitation of the agreement in allowed to reopen them at any time in the future".3
the Collective Bargaining Agreement. The fundamental
rights of the petitioners to free speech and assembly is I only have to add to this that the fact that the error is in the interpretation,
paramount to the provision in the Collective Bargaining construction or application of a constitutional precept not constituting a
Agreement and such attempt to override the constitutional denial of due process, should not make any difference. Juridically, a party
provision would be null and void. These fundamental cannot be less injured by an overlooked or erroneously sanctioned
rights of the petitioners were not taken into consideration violation of an ordinary statute than by a misconstrued or constitutional
in the deliberation of the case by the respondent court; injunction affecting his individual, freedoms. In both instances, there is
injustice which should be intolerable were it not for the more paramount
Thus, it is clear from the foregoing contentions that petitioners are not considerations that inform the principle of immutability of final judgments.
raising any issue of due process. They do not posit that the decision of I dare say this must be the reason why, as I have already noted, the main
the industrial court is null and void on that constitutional ground. True it is opinion does not cite any constitutional provision, law or rule or any
that they fault the respondent court for having priced the provisions of the judicial doctrine or principle supporting its basic holding that infringement
collective bargaining agreement herein involved over and above their of constitutional guarantees, other than denial of due process, divests
constitutional right to peaceably assemble and petition for redress of their courts of jurisdiction to render valid judgments.
grievances against the abuses of the Pasig police, but in no sense at all
do they allege or contend that such action affects its jurisdiction in a In this connection, it must be recalled that the teaching of Philippine
manner that renders the proceedings a nullity. In other words, petitioners Association of Colleges and Universities vs. Secretary of
themselves consider the alleged flaw in the court's action as a mere error Education,4 following Santiago vs. Far Eastern Broadcasting,5 is that "it is
of judgment rather than that of jurisdiction which the main opinion one of our (the Supreme Court's) decisional practices that unless a
projects. For this Court to roundly and indignantly condemn private constitutional point is specifically raised, insisted upon and adequately
respondent now for the grievous violation of the fundamental law the argued, the court will not consider it". In the case at bar, the petitioners
main opinion sees in its refusal to allow all its workers to join the have not raised, they are not insisting upon, much less have they
demonstration in question, when that specific issue has not been duly adequately argued the constitutional issues so extendedly and ably
presented to Us and properly argued, is to my mind unfair and unjust, for discussed in the main opinion.
the simple reason that the manner this case was brought to Us does not
afford it the opportunity to be heard in regard to such supposed Indeed, it does not seem wise and sound for the Supreme Court to hold
constitutional transgression. that the erroneous resolution by a court of a constitutional issue not
amounting to a denial of due process renders its judgment or decision
To be sure, petitioners do maintain, that respondent court committed an null and void, and, therefore, subject to attack even after said judgment
error of jurisdiction by finding petitioners guilty of bargaining in bad faith or decision has become final and executory. I have actually tried to bring
when the charge against them alleged in the complaint was for having myself into agreement with the views of the distinguished and learned
writer of the main opinion, if only to avoid dissenting from his well executory judgment of such court may still be set aside or reopened in
prepared thesis, but its obvious incongruity with settled jurisprudence instances other than those expressly allowed by Rule 38 and that of
always comes to the fore to stifle my effort. extrinsic fraud under Article 1146(1) of the Civil Code.7 And just to
emphasize the policy of the law of respecting judgments once they have
As a matter of fact, for a moment, it appeared to me as if I could go along become final, even as this Court has ruled that final decisions are mute in
with petitioners under the authority of our constitutionally irreducible the presence of fraud which the law abhors,8 it is only when the fraud is
appellate jurisdiction under Section 2(5) of Article VII of the extrinsic and not intrinsic that final and executory judgments may be set
Philippines6 (reenacted practically ipssisimis verbis in Section 5(2) of the aside,9and this only when the remedy is sought within the prescriptive
1973 Constitution), only to realize upon further reflection that the very period. 10
power granted to us to review decisions of lower courts involving
questions of law(and these include constitutional issues not affecting the Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw,
validity of statutes, treaty, executive agreement, etc.) is not unqualified 82 Phil. 776:
but has to be exercised only in the manner provided in the law of the
Rules of Court. In other words, before We can exercise appellate Litigation must end and terminate sometime and
jurisdiction over constitutional issues, no matter how important they may somewhere, and it is essential to an effective and efficient
be, there must first be a showing of compliance with the applicable administration of justice that once a judgment has
procedural law or rules, among them, those governing appeals from the become final, the winning party be not, through a mere
Court of Industrial Relations involved herein. Consequently, if by law or subterfuge, deprived of the fruits of the verdict. Courts
rule, a judgment of the industrial court is already final and executory, this must therefore guard against any scheme calculated to
Court would be devoid of power and authority to review, much less alter bring about that result. Constituted as they are to put an
or modify the same, absent any denial of due process or fatal defect of end to controversies, courts should frown upon any
jurisdiction. It must be borne in mind that the situation confronting Us now attempt to prolong them.
is not merely whether or not We should pass upon a question or issue
not specifically raised by the party concerned, which, to be sure, could be Likewise the stern admonition of Justice George Malcolm in Dy Cay v.
enough reason to dissuade Us from taking pains in resolving the same; Crossfield, 38 Phil. 521, thus:
rather, the real problem here is whether or not We have jurisdiction to
entertain it. And, in this regard, as already stated earlier, no less than
... Public policy and sound practice demand that, at the
Justice Conrado Sanchez, the writer of Chavez, supra., which is being
risk of occasional errors, judgments of courts should
relied upon by the main opinion, already laid down the precedent
become final at some definite date fixed by law. The very
in Elizalde vs. Court, supra, which for its four-square applicability to the
object for which courts were instituted was to put an end
facts of this case, We have no choice but to follow, that is, that in view of
to controversies. To fulfill this purpose and to do so
reconsideration but even their argument supporting the same within the
speedily, certain time limits, more or less arbitrary, have
prescribed period, "the judgment (against them)has become final, beyond
to be set up to spur on the slothful. 'If a vacillating,
recall".
irresolute judge were allowed to thus keep causes ever
within his power, to determine and redetermine them term
Indeed, when I consider that courts would be useless if the finality and after term, to bandy his judgments about from one party
enforceability of their judgments are made contingent on the correctness to the other, and to change his conclusions as freely and
thereof from the constitutional standpoint, and that in truth, whether or not as capriciously as a chamelon may change its hues, then
they are correct is something that is always dependent upon combined litigation might become more intolerable than the wrongs
opinion of the members of the Supreme Court, which in turn is naturally it is intended to redress.' (See Arnedo vs. Llorente and
as changeable as the members themselves are changed, I cannot Liongson (1911), 18 Phil., 257.).
conceive of anything more pernicious and destructive to a trustful
administration of justice than the idea that, even without any showing of
denial of due process or want of jurisdiction of the court, a final and
My disagreement with the dissenters in Republic vs. Judge de los case does not implement on reinforce or strengthen the constitutional
Angeles, rights affected, but instead constricts the same to the point of nullifying
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability the enjoyment thereof by the petitioning employees. Said Court on
and invulnerability of final judgments but rather on the correct Industrial Relations Rule, promulgated as it was pursuant to mere
interpretation of the contents of the judgment in question therein. legislative delegation, is unreasonable and therefore is beyond the
Relevantly to this case at bar, I said then: authority granted by the Constitution and the law. A period of five (5)
days within which to file a motion for reconsideration is too short,
The point of res adjudicata discussed in the dissents has especially for the aggrieve workers, who usually do not have the ready
not escaped my attention. Neither am I overlooking the funds to meet the necessary expenses therefor. In case of the Court of
point of the Chief Justice regarding the dangerous and Appeal and the Supreme Court, a period of fifteen (15) days has been
inimical implications of a ruling that would authorize the fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10,
revision, amendment or alteration of a final and executory Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The
judgment. I want to emphasize that my position in this delay in the filing of the motion for reconsideration could have been only
opinion does not detract a whit from the soundness, one day if September 28, 1969 was not a Sunday. This fact accentuates
authority and binding force of existing doctrines enjoining the unreasonableness of the Court of Industrial Relations Rule insofar as
any such modifications. The public policy of maintaining circumstances of the instant case are concerned."
faith and respect in judicial decisions, which inform said
doctrines, is admittedly of the highest order. I am not I am afraid the zeal and passion of these arguments do not justify the
advocating any departure from them. Nor am I trying to conclusion suggested. Viewed objectively, it can readily be seen that
put forth for execution a decision that I believe should there can hardly be any factual or logical basis for such a critical view of
have been rather than what it is. All I am doing is to view the rule in question. Said rule provides:
not the judgment of Judge Tengco but the decision of this
Court in G.R. No. L-20950, as it is and not as I believe it MOTIONS FOR RECONSIDERATION
should have been, and, by opinion, I would like to guide
the court a quo as to what, in my own view, is the true Sec. 15. The movant shall file the motion, in six copies,
and correct meaning and implications of decision of this within five (5) days from the date on which he receives
Court, not that of Judge Tengco's. notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with
The main opinion calls attention to many instant precisely involving cases respect to the correctness of the allegations of fact, and
in the industrial court, wherein the Court refused to be constrained by serving a copy thereof, personally or by registered mail,
technical rules of procedure in its determination to accord substantial on the adverse party. The latter may file an answer, in six
justice to the parties I still believe in those decisions, some of which were (6) copies, duly verified under oath.
penned by me. I am certain, however, that in none of those precedents
did this Court disturb a judgment already final and executory. It too Sec. 16. Both the motion and the answer shall be
obvious to require extended elucidation or even reference any precedent submitted with arguments supporting the same. If the
or authority that the principle of immutability of final judgments is not a arguments can not be submitted simultaneously with said
mere technicality, and if it may considered to be in a sense a procedural motions, upon notice Court, the movant shall file same
rule, it is one that is founded on public policy and cannot, therefore, yield within ten (10) days from the date of the filing of his
to the ordinary plea that it must give priority to substantial justice. motion for reconsideration. The adverse party shall also
file his answer within ten (10) days from the receipt by
Apparently vent on looking for a constitutional point of due process to him of a copy of the arguments submitted by the movant.
hold on, the main opinion goes far as to maintain that the long existing
and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this
Sec. 17. After an answer to the motion is registered, or COME NOW movant respondents, through counsel, to
after ten (10) days from the receipt of the arguments in this Honorable Court most respectfully moves for the
support of said motion having been filed, the motion shall RECONSIDERATION of the Order of this Honorable
be deemed submitted for resolution of the Court in banc, Court dated September 17, 1969 on the ground that the
unless it is considered necessary to bear oral arguments, same is not in accordance with law, evidence and facts
in which case the Court shall issue the corresponding adduced during the hearing of the above entitled case.
order or notice to that effect.
Movant-respondents most respectfully move for leave to
Failure to observe the above-specified periods shall be file their respective arguments within ten (10) days
sufficient cause for dismissal of the motion for pursuant to Section 15, 16 & 17 as amended of the Rules
reconsideration or striking out of the answer and/or the of Court.
supporting arguments, as the case may be. (As amended
April 20, 1951, Court of Industrial Relations.). WHEREFORE, it is respectfully prayed that this Motion
for Reconsideration be admitted.
As implemented and enforced in actual practice, this rule, as everyone
acquainted with proceedings in the industrial court well knows, precisely Manila, September 27, 1969.
permits the party aggrieved by a judgment to file no more than a pro-
forma motion for reconsideration without any argument or lengthy To say that five (5) days is an unreasonable period for the
discussion and with barely a brief statement of the fundamental ground or filing of such a motion is to me simply incomprehensible.
grounds therefor, without prejudice to supplementing the same by making What worse in this case is that petitioners have not even
the necessary exposition, with citations laws and authorities, in the taken the trouble of giving an explanation of their inability
written arguments the be filed (10) days later. In truth, such a pro-forma to comply with the rule. Not only that, petitioners were
motion has to effect of just advising the court and the other party that the also late five (5) days in filing their written arguments in
movant does not agree with the judgment due to fundamental defects support of their motion, and, the only excuse offered for
stated in brief and general terms. Evidently, the purpose of this such delay is that both the President of the Union and the
requirement is to apprise everyone concerned within the shortest office clerk who took charge of the matter forgot to do
possible time that a reconsideration is to sought, and thereby enable the what they were instructed to do by counsel, which,
parties concerned to make whatever adjustments may be warranted by according to this Court, as I shall explain anon "is the
the situation, in the meanwhile that the litigation is prolonged. It must most hackneyed and habitual subterfuge employed by
borne in mind that cases in the industrial court may involve affect the litigants who fail to observe the procedural requirements
operation of vital industries in which labor-management problems might prescribed by the Rules of Court". (Philippine Airlines, Inc.
require day-to-day solutions and it is to the best interests of justice and vs. Arca, infra). And yet, very indignantly, the main
concerned that the attitude of each party at every imports juncture of the opinion would want the Court to overlook such
case be known to the other so that both avenues for earlier settlement nonchalance and indifference.
may, if possible, be explored.
In this connection, I might add that in my considered opinion, the rules
There can be no reason at all to complain that the time fixed by the rule is fixing periods for the finality of judgments are in a sense more
short or inadequate. In fact, the motion filed petitioners was no more than substantive than procedural in their real nature, for in their operation they
the following: have the effect of either creating or terminating rights pursuant to the
terms of the particular judgment concerned. And the fact that the court
MOTION FOR RECONSIDERATION that rendered such final judgment is deprived of jurisdiction or authority to
alter or modify the same enhances such substantive character. Moreover,
because they have the effect of terminating rights and the enforcement
thereof, it may be said that said rules partake of the nature also of rules requirements prescribed by the Rules of Court. The
of prescription, which again are substantive. Now, the twin predicates of uncritical acceptance of this kind of common place
prescription are inaction or abandonment and the passage of time or a excuses, in the face of the Supreme Court's repeated
prescribed period. On the other hand, procrastination or failure to act on rulings that they are neither credible nor constitutive of
time is unquestionably a form of abandonment, particularly when it is not excusable negligence (Gaerlan vs. Bernal, L-4039, 29
or cannot be sufficiently explained. The most valuable right of a party January 1952; Mercado vs. Judge Domingo, L-19457,
may be lost by prescription, and be has no reason to complain because December 1966) is certainly such whimsical exercise of
public policy demands that rights must be asserted in time, as otherwise judgment to be a grave abuse of discretion. (Philippine Air
they can be deemed waived. Lines, Inc. Arca, 19 SCRA 300.)

I see no justification whatsoever for not applying these self-evident For the reason, therefore, that the judgment of the industrial court sought
principles to the case of petitioners. Hence, I feel disinclined to adopt the to be reviewed in the present case has already become final and
suggestion that the Court suspend, for the purposes of this case the rules executory, nay, not without the fault of the petitioners, hence, no matter
aforequoted of the Court of Industrial Relations. Besides, I have grave how erroneous from the constitutional viewpoint it may be, it is already
doubts as to whether we can suspend rules of other courts, particularly beyond recall, I vote to dismiss this case, without pronouncement as to
that is not under our supervisory jurisdiction, being administrative agency costs.
under the Executive Department Withal, if, in order to hasten the
administration of substance justice, this Court did exercise in some TEEHANKEE, J., concurring:
instances its re power to amend its rules, I am positively certain, it has
done it for the purpose of reviving a case in which the judo has already For having carried out a mass demonstration at Malacañang on March 4,
become final and executory. 1969 in protest against alleged abuses of the Pasig police department,
upon two days' prior notice to respondent employer company, as against the latter's insistence
Before closing, it may be mentioned here, that as averred their petition, in that the first shift 1should not participate but instead report for work, under pain of dismissal, the
industrial court ordered the dismissal from employment of the eight individual petitioners as union
a belated effort to salvage their Petitioners filed in the industrial court on officers and organizers of the mass demonstration.
October 31, 1969 a Petition for relief alleging that their failure to file
"Arguments in Support of their Motion for Reconsideration within the
Respondent court's order finding petitioner union guilty on respondent's
reglementary period or five (5), if not seven (7), days late "was due to
complaint of bargaining in bad faith and unfair labor practice for having so
excusable negligence and honest mistake committed by the President of
carried out the mass demonstration, notwithstanding that it concededly
the respondent Union and on office clerk of the counsel for respondents
was not a declaration of strike nor directed in any manner against
as shown attested in their respective affidavits", (See Annexes K, and K-
respondent employer, and ordering the dismissal of the union office
2) which in brief, consisted allegedly of the President's having forgotten
manifestly constituted grave abuse of discretion in fact and in law.
his appointment with his lawyer "despite previous instructions and of the
said office employee having also coincidentally forgotten "to do the work
instructed (sic) to (him) by Atty. Osorio" because he "was busy with There could not be, in fact, bargaining in bad faith nor unfair labor
clerical jobs". No sympathy at all can be evoked these allegations, for, practice since respondent firm conceded that "the demonstration is an
under probably more justification circumstances, this Court ruled out a inalienable right of the union guaranteed' by the Constitution" and the
similar explanation previous case this wise: union up to the day of the demonstration pleaded by cablegram to the
company to excuse the first shift and allow it to join the demonstration in
accordance with their previous requests.
We find merit in PAL's petition. The excuse offered
respondent Santos as reason for his failure to perfect in
due time appeal from the judgment of the Municipal Neither could there be, in law, a willful violation of the collective
Court, that counsel's clerk forgot to hand him the court bargaining agreement's "no-strike" clause as would warrant the union
notice, is the most hackneyed and habitual subterfuge leaders' dismissal, since as found by respondent court itself the mass
employed by litigants who fail to observe procedural demonstration was not a declaration of a strike, there being no industrial
dispute between the protagonists, but merely the occurrence of a
temporary stoppage of work" to enable the workers to exercise their
constitutional rights of free expression, peaceable assembly and petition
for redress of grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for


reconsideration for having been filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to the negligence of
petitioners' counsel and/or the union president should likewise be set
aside as a manifest act of grave abuse of discretion. Petitioners' petition
for relief from the normal adverse consequences of the late filing of their
motion for reconsideration due to such negligence — which was not
acted upon by respondent court — should have been granted,
considering the monstrous injustice that would otherwise be caused the
petitioners through their summary dismissal from employment, simply
because they sought in good faith to exercise basic human rights
guaranteed them by the Constitution. It should be noted further that no
proof of actual loss from the one-day stoppage of work was shown by
respondent company, providing basis to the main opinion's premise that
its insistence on dismissal of the union leaders for having included the
first shift workers in the mass demonstration against its wishes was but
an act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners
and the constitutional injunction to afford protection to labor be given true
substance and meaning. No person may be deprived of such basic rights
without due process — which is but "responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness
is ruled out and unfairness avoided ... Due process is thus hostile to any
official action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness."2

Accordingly, I vote for the setting aside of the appealed orders of the
respondent court and concur in the judgment for petitioners as set forth in
the main opinion.
EN BANC The movement from Mill's individual liberalism to unsystematic
collectivism wrought changes in the social order, carrying with it a new
formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process,
[G.R. No. 148560. November 19, 2001] the web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular
and broken. Antagonism, often outright collision, between the law as
JOSEPH EJERCITO ESTRADA, petitioner, the expression of the will of the State, and the zealous attempts by its
vs. SANDIGANBAYAN (Third Division) and PEOPLE OF members to preserve their individuality and dignity, inevitably
THE PHILIPPINES, respondents. followed. It is when individual rights are pitted against State authority
that judicial conscience is put to its severest test.
DECISION Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
BELLOSILLO, J.: prosecuted under RA 7080 (An Act Defining and Penalizing the Crime
of Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us
JOHN STUART MILL, in his essay On Liberty, unleashes the full that the assailed law is so defectively fashioned that it crosses that thin
fury of his pen in defense of the rights of the individual from the vast but distinct line which divides the valid from the constitutionally
powers of the State and the inroads of societal pressure. But even as he infirm. He therefore makes a stringent call for this Court to subject the
draws a sacrosanct line demarcating the limits on individuality beyond Plunder Law to the crucible of constitutionality mainly because,
which the State cannot tread - asserting that "individual spontaneity" according to him, (a) it suffers from the vice of vagueness; (b) it
must be allowed to flourish with very little regard to social interference dispenses with the "reasonable doubt" standard in criminal
- he veritably acknowledges that the exercise of rights and liberties is prosecutions; and, (c) it abolishes the element of mens rea in crimes
imbued with a civic obligation, which society is justified in enforcing at already punishable under The Revised Penal Code, all of which are
all cost, against those who would endeavor to withhold fulfillment. Thus purportedly clear violations of the fundamental rights of the accused to
he says - due process and to be informed of the nature and cause of the accusation
against him.
The sole end for which mankind is warranted, individually or Specifically, the provisions of the Plunder Law claimed by
collectively, in interfering with the liberty of action of any of their petitioner to have transgressed constitutional boundaries are Secs. 1,
number, is self-protection. The only purpose for which power can be par. (d), 2 and 4 which are reproduced hereunder:
rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others. Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
Parallel to individual liberty is the natural and illimitable right of purview of Section Two (2) hereof, acquired by him directly or
the State to self-preservation. With the end of maintaining the integrity indirectly through dummies, nominees, agents, subordinates and/or
and cohesiveness of the body politic, it behooves the State to formulate business associates by any combination or series of the following
a system of laws that would compel obeisance to its collective wisdom means or similar schemes:
and inflict punishment for non-observance.
(1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, the Revised Penal Code shall be considered by the court. The court
percentage, kickbacks or any other form of pecuniary benefit from any shall declare any and all ill-gotten wealth and their interests and other
person and/or entity in connection with any government contract or incomes and assets including the properties and shares of stocks
project or by reason of the office or position of the public office derived from the deposit or investment thereof forfeited in favor of the
concerned; State (underscoring supplied).

(3) By the illegal or fraudulent conveyance or disposition of assets Section 4. Rule of Evidence. - For purposes of establishing the crime
belonging to the National Government or any of its subdivisions, of plunder, it shall not be necessary to prove each and every criminal
agencies or instrumentalities, or government owned or controlled act done by the accused in furtherance of the scheme or conspiracy
corporations and their subsidiaries; to amass, accumulate or acquire ill-gotten wealth, it being sufficient
to establish beyond reasonable doubt a pattern of overt or criminal
(4) By obtaining, receiving or accepting directly or indirectly any acts indicative of the overall unlawful scheme or
shares of stock, equity or any other form of interest or participation conspiracy (underscoring supplied).
including the promise of future employment in any business enterprise
or undertaking; On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
(5) By establishing agricultural, industrial or commercial monopolies Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
or other combinations and/or implementation of decrees and orders Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3,
intended to benefit particular persons or special interests; or par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft
and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
(6) By taking advantage of official position, authority, relationship, violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and
connection or influence to unjustly enrich himself or themselves at the Ethical Standards for Public Officials and Employees); (d) Crim. Case
expense and to the damage and prejudice of the Filipino people and No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e)
the Republic of the Philippines. Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as
amended by RA 6085).
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
On 11 April 2001 petitioner filed an Omnibus Motion for the
officer who, by himself or in connivance with members of his family,
remand of the case to the Ombudsman for preliminary investigation
relatives by affinity or consanguinity, business associates,
with respect to specification "d" of the charges in the Information in
subordinates or other persons, amasses, accumulates or acquires ill-
Crim. Case No. 26558; and, for reconsideration/reinvestigation of the
gotten wealth through a combination or series of overt or criminal
offenses under specifications "a," "b," and "c" to give the accused an
acts as described in Section 1 (d) hereof, in the aggregate amount or
opportunity to file counter-affidavits and other documents necessary to
total value of at least fifty million pesos (P50,000,000.00) shall be
prove lack of probable cause. Noticeably, the grounds raised were only
guilty of the crime of plunder and shall be punished by reclusion lack of preliminary investigation, reconsideration/reinvestigation of
perpetua to death. Any person who participated with the said public
offenses, and opportunity to prove lack of probable cause. The
officer in the commission of an offense contributing to the crime of purported ambiguity of the charges and the vagueness of the law under
plunder shall likewise be punished for such offense. In the imposition which they are charged were never raised in that Omnibus Motion thus
of penalties, the degree of participation and the attendance of indicating the explicitness and comprehensibility of the Plunder Law.
mitigating and extenuating circumstances as provided by
On 25 April 2001 the Sandiganbayan, Third Division, issued a is right and advancing the welfare of the majority. Hence in determining
Resolution in Crim. Case No. 26558 finding that "a probable cause for whether the acts of the legislature are in tune with the fundamental law,
the offense of PLUNDER exists to justify the issuance of warrants for courts should proceed with judicial restraint and act with caution and
the arrest of the accused." On 25 June 2001 petitioner's motion for forbearance. Every intendment of the law must be adjudged by the
reconsideration was denied by the Sandiganbayan. courts in favor of its constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a statute, courts must
On 14 June 2001 petitioner moved to quash the Information in
first ascertain whether an interpretation is fairly possible to sidestep the
Crim. Case No. 26558 on the ground that the facts alleged therein did
question of constitutionality.
not constitute an indictable offense since the law on which it was based
was unconstitutional for vagueness, and that the Amended Information In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as
for Plunder charged more than one (1) offense. On 21 June 2001 the long as there is some basis for the decision of the court, the
Government filed its Opposition to the Motion to Quash, and five (5) constitutionality of the challenged law will not be touched and the case
days later or on 26 June 2001 petitioner submitted his Reply to the will be decided on other available grounds. Yet the force of the
Opposition. On 9 July 2001 the Sandiganbayan denied presumption is not sufficient to catapult a fundamentally deficient law
petitioner's Motion to Quash. into the safe environs of constitutionality. Of course, where the law
clearly and palpably transgresses the hallowed domain of the organic
As concisely delineated by this Court during the oral arguments on
law, it must be struck down on sight lest the positive commands of the
18 September 2001, the issues for resolution in the instant petition for
fundamental law be unduly eroded.
certiorari are: (a) The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for proving the predicate Verily, the onerous task of rebutting the presumption weighs
crimes of plunder and therefore violates the rights of the accused to due heavily on the party challenging the validity of the statute. He must
process; and, (c) Whether Plunder as defined in RA 7080 is a malum demonstrate beyond any tinge of doubt that there is indeed an
prohibitum, and if so, whether it is within the power of Congress to so infringement of the constitution, for absent such a showing, there can be
classify it. no finding of unconstitutionality. A doubt, even if well-founded, will
hardly suffice. As tersely put by Justice Malcolm, "To doubt is to
Preliminarily, the whole gamut of legal concepts pertaining to the
sustain."[5] And petitioner has miserably failed in the instant case to
validity of legislation is predicated on the basic principle that a
discharge his burden and overcome the presumption of constitutionality
legislative measure is presumed to be in harmony with the
of the Plunder Law.
Constitution.[3] Courts invariably train their sights on this fundamental
rule whenever a legislative act is under a constitutional attack, for it is As it is written, the Plunder Law contains ascertainable standards
the postulate of constitutional adjudication. This strong predilection for and well-defined parameters which would enable the accused to
constitutionality takes its bearings on the idea that it is forbidden for one determine the nature of his violation. Section 2 is
branch of the government to encroach upon the duties and powers of sufficiently explicit in its description of the acts, conduct and conditions
another. Thus it has been said that the presumption is based on the required or forbidden, and prescribes the elements of the crime with
deference the judicial branch accords to its coordinate branch - the reasonable certainty and particularity. Thus -
legislature.
1. That the offender is a public officer who acts by himself or in
If there is any reasonable basis upon which the legislation may
connivance with members of his family, relatives by affinity or
firmly rest, the courts must assume that the legislature is ever conscious
consanguinity, business associates, subordinates or other persons;
of the borders and edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of promoting what
2. That he amassed, accumulated or acquired ill-gotten wealth In fact, the amended Information itself closely tracks the language
through a combination or series of the following overt or criminal of the law, indicating with reasonable certainty the various elements of
acts: (a) through misappropriation, the offense which petitioner is alleged to have committed:
conversion, misuse, or malversation of public funds or raids on the
public treasury; (b) by receiving, directly or indirectly, any "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
commission, gift, share, percentage, kickback or any other form of Office of the Ombudsman, hereby accuses former PRESIDENT OF
pecuniary benefits from any person and/or entity in connection with THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito
any government contract or project or by reason of the office or Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,'
position of the public officer; (c) by the illegal or fraudulent together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
conveyance or disposition of assets belonging to the Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOEa.k.a.
National Government or any of its subdivisions, agencies or Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
instrumentalities of Government owned or controlled corporations or Delia Rajas, and John DOES & Jane Does, of the crime of Plunder,
their subsidiaries; (d) by obtaining, receiving or accepting directly or defined and penalized under R.A. No. 7080, as amended by Sec. 12 of
indirectly any shares of stock, equity or any other form of interest or R.A. No. 7659, committed as follows:
participation including the promise of future employment in any
business enterprise or undertaking; (e) by establishing agricultural, That during the period from June, 1998 to January 2001, in the
industrial or commercial monopolies or other combinations and/or Philippines, and within the jurisdiction of this Honorable Court,
implementation of decrees and orders intended to benefit particular accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE
persons or special interests; or (f) by taking advantage of official REPUBLIC OF THE PHILIPPINES, by
position, authority, relationship, connection or influence to unjustly himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
enrich himself or themselves at the expense and to the damage and accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES
prejudice of the Filipino people and the Republic of the Philippines; BY AFFINITY OR CONSANGUINITY, BUSINESS
and, ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS,
BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
3. That the aggregate amount or total value of the ill-gotten wealth POSITION, AUTHORITY, RELATIONSHIP, CONNECTION,
amassed, accumulated or acquired is at least P50,000,000.00. OR INFLUENCE, did then and there willfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF,
As long as the law affords some comprehensible guide or rule that DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate
would inform those who are subject to it what conduct would render amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN
them liable to its penalties, its validity will be sustained. It must MILLION EIGHT HUNDRED FOUR THOUSAND ONE
sufficiently guide the judge in its application; the counsel, in defending HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
one charged with its violation; and more importantly, the accused, in CENTAVOS (P4,097,804,173.17), more or less, THEREBY
identifying the realm of the proscribed conduct.Indeed, it can be UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT
understood with little difficulty that what the assailed statute punishes THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO
is the act of a public officer in amassing or accumulating ill-gotten PEOPLE AND THE REPUBLIC OF THE PHILIPPINES,
wealth of at least P50,000,000.00 through a series or combination of through ANY OR A combination OR A series of overt OR criminal
acts enumerated in Sec. 1, par. (d), of the Plunder Law. acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIFTY CENTAVOS (P1,847,578,057.50); AND BY
FIVE HUNDRED FORTY-FIVE MILLION PESOS COLLECTING OR RECEIVING, DIRECTLY OR
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE
GAMBLING IN THE FORM OF GIFT, SHARE, WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY PERCENTAGES BY REASON OF SAID PURCHASES OF
BENEFIT, BY HIMSELF AND/OR in connection with co- SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE
DOES, in consideration OF TOLERATION OR PROTECTION CORPORATION WHICH BECAME PART OF THE DEPOSIT
OF ILLEGAL GAMBLING; IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,
OR THEIR PERSONAL gain and benefit, public funds in the SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
amount of ONE HUNDRED THIRTY MILLION PESOS PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN
(P130,000,000.00), more or less, representing a portion of the TWO DOES AND JANE DOES, in the amount of MORE OR
HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise LESS THREE BILLION TWO HUNDRED THIRTY THREE
tax share allocated for the province of Ilocos Sur under R.A. No. MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
7171, by himself and/or in connivance with co-accused Charlie SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS
Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-
JANE DOES; (italic supplied). PCI BANK."

(c) by directing, ordering and compelling, FOR HIS PERSONAL We discern nothing in the foregoing that is vague or ambiguous -
GAIN AND BENEFIT, the Government Service Insurance System as there is obviously none - that will confuse petitioner in his
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, defense. Although subject to proof, these factual assertions clearly show
MORE OR LESS, and the Social Security System (SSS), that the elements of the crime are easily understood and provide
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE adequate contrast between the innocent and the prohibited acts. Upon
BELLE CORPORATION IN THE AMOUNT OF MORE OR such unequivocal assertions, petitioner is completely informed of the
LESS ONE BILLION ONE HUNDRED TWO MILLION NINE accusations against him as to enable him to prepare for an intelligent
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN defense.
PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND
Petitioner, however, bewails the failure of the law to provide for the
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION
statutory definition of the terms "combination" and "series" in the key
SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED
phrase "a combination or series of overt or criminal acts" found in Sec.
FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A
1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
TOTAL OF MORE OR LESS ONE BILLION EIGHT
according to petitioner, render the Plunder Law unconstitutional for
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence, REP. ISIDRO: I am just intrigued again by our definition of
violative of his fundamental right to due process. plunder. We say THROUGH A COMBINATION OR SERIES OF
OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
The rationalization seems to us to be pure sophistry. A statute is not
HEREOF. Now when we say combination, we actually mean to say, if
rendered uncertain and void merely because general terms are used
there are two or more means, we mean to say that number one and two
therein, or because of the employment of terms without defining
or number one and something else are included, how about a series of
them;[6] much less do we have to define every word we use. Besides,
the same act? For example, through misappropriation, conversion,
there is no positive constitutional or statutory command requiring the
misuse, will these be included also?
legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so
REP. GARCIA: Yeah, because we say a series.
define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear, REP. ISIDRO: Series.
or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law. REP. GARCIA: Yeah, we include series.

Moreover, it is a well-settled principle of legal hermeneutics that REP. ISIDRO: But we say we begin with a combination.
words of a statute will be interpreted in their natural, plain and ordinary REP. GARCIA: Yes.
acceptation and signification,[7] unless it is evident that the legislature
intended a technical or special legal meaning to those words.[8] The REP. ISIDRO: When we say combination, it seems that -
intention of the lawmakers - who are, ordinarily, untrained philologists REP. GARCIA: Two.
and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains REP. ISIDRO: Not only two but we seem to mean that two of the
the following commonly accepted definition of the words enumerated means not twice of one enumeration.
"combination" and "series:" REP. GARCIA: No, no, not twice.

Combination - the result or product of combining; the act or process of REP. ISIDRO: Not twice?
combining. To combine is to bring into such close relationship as to REP. GARCIA: Yes. Combination is not twice - but combination,
obscure individual characters. two acts.

Series - a number of things or events of the same class coming one REP. ISIDRO: So in other words, thats it. When we say
after another in spatial and temporal succession. combination, we mean, two different acts. It cannot be a
repetition of the same act.
That Congress intended the words "combination" and "series" to be REP. GARCIA: That be referred to series, yeah.
understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA 7080 REP. ISIDRO: No, no. Supposing one act is repeated, so there are
or the Plunder Law: two.
REP. GARCIA: A series.
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON
JUSTICE, 7 May 1991
REP. ISIDRO: Thats not series. Its a combination. Because when the idea of necessitating a series. Anyway, the criminal acts are
we say combination or series, we seem to say that two or more, in the plural.
di ba?
SENATOR TANADA: That would mean a combination of two or
REP. GARCIA: Yes, this distinguishes it really from ordinary more of the acts mentioned in this.
crimes. That is why, I said, that is a very good suggestion
THE PRESIDENT: Probably two or more would be....
because if it is only one act, it may fall under ordinary crime
but we have here a combination or series of overt or criminal SENATOR MACEDA: Yes, because a series implies several or
acts. So x x x x many; two or more.
REP. GARCIA: Series. One after the other eh di.... SENATOR TANADA: Accepted, Mr. President x x x x
SEN. TANADA: So that would fall under the term series? THE PRESIDENT: If there is only one, then he has to be
prosecuted under the particular crime. But when we say acts of
REP. GARCIA: Series, oo.
plunder there should be, at least, two or more.
REP. ISIDRO: Now, if it is a combination, ano, two
SENATOR ROMULO: In other words, that is already covered by
misappropriations....
existing laws, Mr. President.
REP. GARCIA: Its not... Two misappropriations will not be
Thus when the Plunder Law speaks of "combination," it is referring
combination. Series.
to at least two (2) acts falling under different categories of enumeration
REP. ISIDRO: So, it is not a combination? provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
REP. GARCIA: Yes.
the National Government under Sec. 1, par. (d), subpar. (3).
REP. ISIDRO: When you say combination, two different?
On the other hand, to constitute a series" there must be two (2) or
REP. GARCIA: Yes. more overt or criminal acts falling under the same category of
enumeration found in Sec. 1, par. (d), say, misappropriation,
SEN. TANADA: Two different. malversation and raids on the public treasury, all of which fall under
REP. ISIDRO: Two different acts. Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and "series," it
REP. GARCIA: For example, ha... would have taken greater pains in specifically providing for it in the law.
REP. ISIDRO: Now a series, meaning, repetition... As for "pattern," we agree with the observations of the
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 Sandiganbayan[9] that this term is sufficiently defined in Sec. 4, in
relation to Sec. 1, par. (d), and Sec. 2 -
SENATOR MACEDA: In line with our interpellations that
sometimes one or maybe even two acts may already result in x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
such a big amount, on line 25, would the Sponsor consider combination or series of overt or criminal acts enumerated in
deleting the words a series of overt or, to read, therefore: or subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the
conspiracy COMMITTED by criminal acts such as. Remove law, the pattern of overt or criminal acts is directed towards a
common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there warning as to the proscribed conduct when measured by common
must either be an 'overall unlawful scheme' or 'conspiracy' to achieve understanding and practice.[12] It must be stressed, however, that the
said common goal. As commonly understood, the term 'overall "vagueness" doctrine merely requires a reasonable degree of certainty
unlawful scheme' indicates a 'general plan of action or method' which for the statute to be upheld - not absolute precision or mathematical
the principal accused and public officer and others conniving with him exactitude, as petitioner seems to suggest. Flexibility, rather than
follow to achieve the aforesaid common goal. In the alternative, if meticulous specificity, is permissible as long as the metes and bounds
there is no such overall scheme or where the schemes or methods used of the statute are clearly delineated. An act will not be held invalid
by multiple accused vary, the overt or criminal acts must form part of merely because it might have been more explicit in its wordings or
a conspiracy to attain a common goal. detailed in its provisions, especially where, because of the nature of the
act, it would be impossible to provide all the details in advance as in all
Hence, it cannot plausibly be contended that the law does not give other statutes.
a fair warning and sufficient notice of what it seeks to penalize. Under
Moreover, we agree with, hence we adopt, the observations of Mr.
the circumstances, petitioner's reliance on the "void-for-vagueness"
Justice Vicente V. Mendoza during the deliberations of the Court that
doctrine is manifestly misplaced. The doctrine has been formulated in
the allegations that the Plunder Law is vague and overbroad do not
various ways, but is most commonly stated to the effect that a statute
justify a facial review of its validity -
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
The void-for-vagueness doctrine states that "a statute which either
conduct is prohibited by the statute. It can only be invoked against that
forbids or requires the doing of an act in terms so vague that men of
specie of legislation that is utterly vague on its face, i.e., that which
common intelligence must necessarily guess at its meaning and differ
cannot be clarified either by a saving clause or by construction.
as to its application, violates the first essential of due process of
A statute or act may be said to be vague when it lacks comprehensible law."[13] The overbreadth doctrine, on the other hand, decrees that "a
standards that men of common intelligence must necessarily guess at its governmental purpose may not be achieved by means which sweep
meaning and differ in its application. In such instance, the statute is unnecessarily broadly and thereby invade the area of protected
repugnant to the Constitution in two (2) respects - it violates due process freedoms."[14]
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled A facial challenge is allowed to be made to a vague statute and to one
discretion in carrying out its provisions and becomes an arbitrary flexing which is overbroad because of possible "chilling effect" upon
of the Government muscle.[10] But the doctrine does not apply as against protected speech. The theory is that "[w]hen statutes regulate or
legislations that are merely couched in imprecise language but which proscribe speech and no readily apparent construction suggests itself
nonetheless specify a standard though defectively phrased; or to those as a vehicle for rehabilitating the statutes in a single prosecution, the
that are apparently ambiguous yet fairly applicable to certain types of transcendent value to all society of constitutionally protected
activities. The first may be "saved" by proper construction, while no expression is deemed to justify allowing attacks on overly broad
challenge may be mounted as against the second whenever directed statutes with no requirement that the person making the attack
against such activities.[11] With more reason, the doctrine cannot be demonstrate that his own conduct could not be regulated by a statute
invoked where the assailed statute is clear and free from ambiguity, as drawn with narrow specificity."[15] The possible harm to society in
in this case. permitting some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred
The test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently definite
and perceived grievances left to fester because of possible inhibitory application might be unconstitutional."[20] As has been pointed out,
effects of overly broad statutes. "vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while
This rationale does not apply to penal statutes. Criminal statutes have statutes found vague as a matter of due process typically are
general in terrorem effect resulting from their very existence, and, if invalidated [only] 'as applied' to a particular
facial challenge is allowed for this reason alone, the State may well be defendant."[21] Consequently, there is no basis for petitioner's claim
prevented from enacting laws against socially harmful conduct. In the that this Court review the Anti-Plunder Law on its face and in its
area of criminal law, the law cannot take chances as in the area of free entirety.
speech.
Indeed, "on its face" invalidation of statutes results in striking them
The overbreadth and vagueness doctrines then have special application down entirely on the ground that they might be applied to parties not
only to free speech cases. They are inapt for testing the validity of before the Court whose activities are constitutionally protected.[22] It
penal statutes. As the U.S. Supreme Court put it, in an opinion by constitutes a departure from the case and controversy requirement of
Chief Justice Rehnquist, "we have not recognized an 'overbreadth' the Constitution and permits decisions to be made without concrete
doctrine outside the limited context of the First factual settings and in sterile abstract contexts.[23]But, as the U.S.
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that Supreme Court pointed out in Younger v. Harris[24]
"claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" [T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and, again, that "overbreadth claims, if entertained at all, have been and requiring correction of these deficiencies before the statute is put
curtailed when invoked against ordinary criminal laws that are sought into effect, is rarely if ever an appropriate task for the judiciary. The
to be applied to protected conduct." For this reason, it has been held combination of the relative remoteness of the controversy, the impact
that "a facial challenge to a legislative act is the most difficult on the legislative process of the relief sought, and above all the
challenge to mount successfully, since the challenger must establish speculative and amorphous nature of the required line-by-line analysis
that no set of circumstances exists under which the Act would be of detailed statutes, . . . ordinarily results in a kind of case that is
valid."[18] As for the vagueness doctrine, it is said that a litigant may wholly unsatisfactory for deciding constitutional questions, whichever
challenge a statute on its face only if it is vague in all its possible way they might be decided.
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to For these reasons, "on its face" invalidation of statutes has been
the conduct of others."[19] described as "manifestly strong medicine," to be employed "sparingly
and only as a last resort,"[25] and is generally disfavored.[26] In
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are determining the constitutionality of a statute, therefore, its provisions
analytical tools developed for testing "on their faces" statutes in free which are alleged to have been violated in a case must be examined in
speech cases or, as they are called in American law, First Amendment the light of the conduct with which the defendant is charged.[27]
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 In light of the foregoing disquisition, it is evident that the purported
that "one to whom application of a statute is constitutional will not be ambiguity of the Plunder Law, so tenaciously claimed and argued at
heard to attack the statute on the ground that impliedly it might also be length by petitioner, is more imagined than real. Ambiguity, where none
taken as applying to other persons or other situations in which its exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in in the same Information does not mean that the indictment charges three
the law. Every provision of the law should be construed in relation and (3) distinct offenses.
with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of The word 'unwarranted' is not uncertain. It seems lacking adequate or
constitutionality and validity of the Plunder Law. A fortiori, petitioner official support; unjustified; unauthorized (Webster, Third
cannot feign ignorance of what the Plunder Law is all about. Being one International Dictionary, p. 2514); or without justification or adequate
of the Senators who voted for its passage, petitioner must be aware that reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D.
the law was extensively deliberated upon by the Senate and its Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent
appropriate committees by reason of which he even registered his Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).
affirmative vote with full knowledge of its legal implications and sound
constitutional anchorage. The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public
The parallel case of Gallego v. Sandiganbayan[28] must be
officer in:
mentioned if only to illustrate and emphasize the point that courts are
loathed to declare a statute void for uncertainty unless the law itself is
x x x or giving any private party any unwarranted benefits, advantage
so imperfect and deficient in its details, and is susceptible of no
or preference in the discharge of his official, administrative or judicial
reasonable construction that will support and give it effect. In that case,
functions through manifest partiality, evident bad faith or gross
petitioners Gallego and Agoncillo challenged the constitutionality of
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as
Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being
vague. Petitioners posited, among others, that the term "unwarranted" is amended).
highly imprecise and elastic with no common law meaning or settled
definition by prior judicial or administrative precedents; that, for its It is not at all difficult to comprehend that what the aforequoted penal
vagueness, Sec. 3, par. (e), violates due process in that it does not give provisions penalize is the act of a public officer, in the discharge of his
fair warning or sufficient notice of what it seeks to penalize. Petitioners official, administrative or judicial functions, in giving any private
further argued that the Information charged them with three (3) distinct party benefits, advantage or preference which is unjustified,
offenses, to wit: (a) giving of "unwarranted" benefits through manifest unauthorized or without justification or adequate reason, through
partiality; (b) giving of "unwarranted" benefits through evident bad manifest partiality, evident bad faith or gross inexcusable negligence.
faith; and, (c) giving of "unwarranted" benefits through gross
inexcusable negligence while in the discharge of their official function In other words, this Court found that there was nothing vague or
and that their right to be informed of the nature and cause of the ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The
accusation against them was violated because they were left to guess Anti-Graft and Corrupt Practices Act, which was understood in its
which of the three (3) offenses, if not all, they were being charged and primary and general acceptation. Consequently, in that case, petitioners'
prosecuted. objection thereto was held inadequate to declare the section
unconstitutional.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act does not suffer from the On the second issue, petitioner advances the highly stretched theory
constitutional defect of vagueness. The phrases "manifest partiality," that Sec. 4 of the Plunder Law circumvents the immutable obligation of
"evident bad faith," and "gross and inexcusable negligence" merely the prosecution to prove beyond reasonable doubt the predicate acts
describe the different modes by which the offense penalized in Sec. 3, constituting the crime of plunder when it requires only proof of a pattern
par. (e), of the statute may be committed, and the use of all these phrases of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of less than P100 million, but the totality of the crime committed
plunder, it shall not be necessary to prove each and every criminal act is P100 million since there is malversation, bribery,
done by the accused in furtherance of the scheme or conspiracy to falsification of public document, coercion, theft?
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
MR. GARCIA: Mr. Speaker, not everything alleged in the
establish beyond reasonable doubt a pattern of overt or criminal acts
information needs to be proved beyond reasonable doubt. What
indicative of the overall unlawful scheme or conspiracy.
is required to be proved beyond reasonable doubt is every
element of the crime charged. For example, Mr. Speaker, there
The running fault in this reasoning is obvious even to the simplistic
is an enumeration of the things taken by the robber in the
mind. In a criminal prosecution for plunder, as in all other
information three pairs of pants, pieces of jewelry. These need
crimes, the accused always has in his favor the presumption of
not be proved beyond reasonable doubt, but these will not
innocence which is guaranteed by the Bill of Rights, and unless the State
prevent the conviction of a crime for which he was charged just
succeeds in demonstrating by proof beyond reasonable doubt that
because, say, instead of 3 pairs of diamond earrings the
culpability lies, the accused is entitled to an acquittal.[29] The use of
prosecution proved two. Now, what is required to be proved
the "reasonable doubt" standard is indispensable to command the
beyond reasonable doubt is the element of the offense.
respect and confidence of the community in the application of criminal
law. It is critical that the moral force of criminal law be not diluted by a MR. ALBANO: I am aware of that, Mr. Speaker, but considering
standard of proof that leaves people in doubt whether innocent men are that in the crime of plunder the totality of the amount is very
being condemned. It is also important in our free society that every important, I feel that such a series of overt criminal acts has to
individual going about his ordinary affairs has confidence that his be taken singly. For instance, in the act of bribery, he was able
government cannot adjudge him guilty of a criminal offense without to accumulate only P50,000 and in the crime of extortion, he
convincing a proper factfinder of his guilt with utmost was only able to accumulate P1 million. Now, when we add the
certainty. This "reasonable doubt" standard has acquired such exalted totality of the other acts as required under this bill through the
stature in the realm of constitutional law as it gives life to the Due interpretation on the rule of evidence, it is just one single act,
Process Clause which protects the accused against conviction except so how can we now convict him?
upon proof beyond reasonable doubt of every fact necessary to
MR. GARCIA: With due respect, Mr. Speaker, for purposes of
constitute the crime with which he is charged.[30] The following
proving an essential element of the crime, there is a need to
exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this
prove that element beyond reasonable doubt. For example, one
score during the deliberations in the floor of the House of
essential element of the crime is that the amount involved
Representatives are elucidating -
is P100 million. Now, in a series of defalcations and other acts
of corruption in the enumeration the total amount would
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON
be P110 or P120 million, but there are certain acts that could
RA 7080, 9 October 1990
not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our
in these transactions, proved beyond reasonable doubt, is P100
criminal law that what is alleged in the information must be
million, then there is a crime of plunder (underscoring
proven beyond reasonable doubt. If we will prove only one act
supplied).
and find him guilty of the other acts enumerated in the
information, does that not work against the right of the accused It is thus plain from the foregoing that the legislature did not in any
especially so if the amount committed, say, by falsification is manner refashion the standard quantum of proof in the crime of
plunder. The burden still remains with the prosecution to prove beyond JUSTICE BELLOSILLO: In other words, cannot an accused be
any iota of doubt every fact or element necessary to constitute the crime. convicted under the Plunder Law without applying Section 4
on the Rule of Evidence if there is proof beyond reasonable
The thesis that Sec. 4 does away with proof of each and every
doubt of the commission of the acts complained of?
component of the crime suffers from a dismal misconception of the
import of that provision. What the prosecution needs to prove beyond ATTY. AGABIN: In that case he can be convicted of individual
reasonable doubt is only a number of acts sufficient to form a crimes enumerated in the Revised Penal Code, but not plunder.
combination or series which would constitute a pattern and involving an
JUSTICE BELLOSILLO: In other words, if all the elements of the
amount of at least P50,000,000.00. There is no need to prove each and
crime are proved beyond reasonable doubt without applying
every other act alleged in the Information to have been committed by
Section 4, can you not have a conviction under the Plunder
the accused in furtherance of the overall unlawful scheme or conspiracy
Law?
to amass, accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an Information for plunder with ATTY. AGABIN: Not a conviction for plunder, your Honor.
having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty (50) raids, it JUSTICE BELLOSILLO: Can you not disregard the application of
being sufficient to prove by pattern at least two (2) of the raids beyond Sec. 4 in convicting an accused charged for violation of the
reasonable doubt provided only that they amounted to at Plunder Law?
least P50,000,000.00.[31] ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the down a substantive element of the law x x x x
logical conclusion that "pattern of overt or criminal acts indicative of JUSTICE BELLOSILLO: What I said is - do we have to avail of
the overall unlawful scheme or conspiracy" inheres in the very acts of Section 4 when there is proof beyond reasonable doubt on the
accumulating, acquiring or amassing hidden wealth. Stated otherwise, acts charged constituting plunder?
such pattern arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern ATTY. AGABIN: Yes, your Honor, because Section 4 is two
is merely a by-product of the proof of the predicate acts. This conclusion pronged, it contains a rule of evidence and it contains a
is consistent with reason and common sense. There would be no other substantive element of the crime of plunder. So, there is no way
explanation for a combination or series of by which we can avoid Section 4.

overt or criminal acts to stash P50,000,000.00 or more, than "a scheme JUSTICE BELLOSILLO: But there is proof beyond reasonable
or conspiracy to amass, accumulate or acquire ill gotten wealth." The doubt insofar as the predicate crimes charged are concerned
prosecution is therefore not required to make a deliberate and conscious that you do not have to go that far by applying Section 4?
effort to prove pattern as it necessarily follows with the establishment ATTY. AGABIN: Your Honor, our thinking is that Section 4
of a series or combination of the predicate acts. contains a very important element of the crime of plunder and
Relative to petitioner's contentions on the purported defect of Sec. that cannot be avoided by the prosecution.[32]
4 is his submission that "pattern" is "a very important element of the We do not subscribe to petitioner's stand. Primarily, all the essential
crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule elements of plunder can be culled and understood from its definition in
of evidence and a substantive element of the crime," such that without Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of
it the accused cannot be convicted of plunder -
them. Moreover, the epigraph and opening clause of Sec. 4 is clear and noteworthy that the amended information alleges that the crime of
unequivocal: plunder was committed "willfully, unlawfully and criminally." It thus
alleges guilty knowledge on the part of petitioner.
SEC. 4. Rule of Evidence. - For purposes of establishing the
crime of plunder x x x x
In support of his contention that the statute eliminates the requirement
It purports to do no more than prescribe a rule of procedure for the of mens rea and that is the reason he claims the statute is void,
prosecution of a criminal case for plunder. Being a purely procedural petitioner cites the following remarks of Senator Taada made during
measure, Sec. 4 does not define or establish any substantive right in the deliberation on S.B. No. 733:
favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even SENATOR TAADA . . . And the evidence that will be required to
without invoking Sec. 4, a conviction for plunder may be had, for what convict him would not be evidence for each and every individual
is crucial for the prosecution is to present sufficient evidence to criminal act but only evidence sufficient to establish the conspiracy or
engender that moral certitude exacted by the fundamental law to prove scheme to commit this crime of plunder.[33]
the guilt of the accused beyond reasonable doubt. Thus, even granting
for the sake of argument that Sec. 4 is flawed and vitiated for the reasons However, Senator Taada was discussing 4 as shown by the succeeding
advanced by petitioner, it may simply be severed from the rest of the portion of the transcript quoted by petitioner:
provisions without necessarily resulting in the demise of the law; after
all, the existing rules on evidence can supplant Sec. 4 more than SENATOR ROMULO: And, Mr. President, the Gentleman feels that it
enough. Besides, Sec. 7 of RA 7080 provides for a separability clause - is contained in Section 4, Rule of Evidence, which, in the Gentleman's
view, would provide for a speedier and faster process of attending to
Sec. 7. Separability of Provisions. - If any provisions of this Act or the this kind of cases?
application thereof to any person or circumstance
is held invalid, the remaining provisions of this Act and the application SENATOR TAADA: Yes, Mr. President . . .[34]
of such provisions to other persons or circumstances shall not be
affected thereby. Senator Taada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every
Implicit in the foregoing section is that to avoid the whole act from criminal act done to further the scheme or conspiracy, it being enough
being declared invalid as a result of the nullity of some of its provisions, if it proves beyond reasonable doubt a pattern of overt or ciminal acts
assuming that to be the case although it is not really so, all the provisions indicative of the overall unlawful scheme or conspiracy. As far as the
thereof should accordingly be treated independently of each other, acts constituting the pattern are concerned, however, the elements of
especially if by doing so, the objectives of the statute can best be the crime must be proved and the requisite mens rea must be shown.
achieved.
As regards the third issue, again we agree with Justice Mendoza Indeed, 2 provides that -
that plunder is a malum in se which requires proof of criminal
intent. Thus, he says, in his Concurring Opinion - Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
x x x Precisely because the constitutive crimes are mala in se the likewise be punished for such offense. In the imposition of penalties,
element of mens rea must be proven in a prosecution for plunder. It is the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, mutilation, destructive arson, and carnapping where the owner, driver
shall be considered by the court. or occupant of the carnapped vehicle is killed or raped, which are
penalized by reclusion perpetua to death, are clearly heinous by their
The application of mitigating and extenuating circumstances in the very nature.
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the There are crimes, however, in which the abomination lies in the
degree of responsibility of the offender is determined by his criminal significance and implications of the subject criminal acts in the scheme
intent. It is true that 2 refers to "any person who participates with the of the larger socio-political and economic context in which the state
said public officer in the commission of an offense contributing to the finds itself to be struggling to develop and provide for its poor and
crime of plunder." There is no reason to believe, however, that it does underprivileged masses. Reeling from decades of corrupt tyrannical
not apply as well to the public officer as principal in the crime. As rule that bankrupted the government and impoverished the population,
Justice Holmes said: "We agree to all the generalities about not the Philippine Government must muster the political will to dismantle
supplying criminal laws with what they omit, but there is no canon the culture of corruption, dishonesty, greed and syndicated criminality
against using common sense in construing laws as saying what they that so deeply entrenched itself in the structures of society and the
obviously mean."[35] psyche of the populace. [With the government] terribly lacking the
money to provide even the most basic services to its people, any form
Finally, any doubt as to whether the crime of plunder is a malum in of misappropriation or misapplication of government funds translates
se must be deemed to have been resolved in the affirmative by the to an actual threat to the very existence of government, and in turn, the
decision of Congress in 1993 to include it among the heinous crimes very survival of the people it governs over. Viewed in this context, no
punishable by reclusion perpetua to death. Other heinous crimes are less heinous are the effects and repercussions of crimes like qualified
punished with death as a straight penalty in R.A. No. 7659. Referring bribery, destructive arson resulting in death, and drug offenses
to these groups of heinous crimes, this Court held in People v. involving government officials, employees or officers, that their
Echegaray:[36] perpetrators must not be allowed to cause further destruction and
damage to society.
The evil of a crime may take various forms. There are crimes that are,
by their very nature, despicable, either because life was callously taken The legislative declaration in R.A. No. 7659 that plunder is a heinous
or the victim is treated like an animal and utterly dehumanized as to offense implies that it is a malum in se. For when the acts punished are
completely disrupt the normal course of his or her growth as a human inherently immoral or inherently wrong, they are mala in se[37] and it
being . . . . Seen in this light, the capital crimes of kidnapping and does not matter that such acts are punished in a special law, especially
serious illegal detention for ransom resulting in the death of the victim since in the case of plunder the predicate crimes are mainly mala in
or the victim is raped, tortured, or subjected to dehumanizing acts; se. Indeed, it would be absurd to treat prosecutions for plunder as
destructive arson resulting in death; and drug offenses involving though they are mere prosecutions for violations of the Bouncing
minors or resulting in the death of the victim in the case of other Check Law (B.P. Blg. 22) or of an ordinance against jaywalking,
crimes; as well as murder, rape, without regard to the inherent wrongness of the acts.
parricide, infanticide, kidnapping and serious illegal detention, where
the victim is detained for more than three days or serious physical To clinch, petitioner likewise assails the validity of RA 7659, the
injuries were inflicted on the victim or threats to kill him were made or amendatory law of RA 7080, on constitutional grounds. Suffice it to say
the victim is a minor, robbery with homicide, rape or intentional however that it is now too late in the day for him to
resurrect this long dead issue, the same having been eternally consigned Before I explain my vote, I think it necessary to restate the basic
by People v. Echegaray[38] to the archives of jurisprudential history. The facts.
declaration of this Court therein that RA 7659 is constitutionally valid
Petitioner Joseph Ejercito Estrada was President of the Philippines
stands as a declaration of the State, and becomes, by necessary effect,
until January 20, 2001 when he was forced to vacate the presidency by
assimilated in the Constitution now as an integral part of it.
people power and then Vice President Gloria Macapagal-Arroyo
Our nation has been racked by scandals of corruption and obscene succeeded him in office.[1] He was charged, in eight cases filed with the
profligacy of officials in high places which have shaken its very Sandiganbayan, with various offenses committed while in office, among
foundation. The anatomy of graft and corruption has become more them plunder, for allegedly having amassed ill-gotten wealth in the
elaborate in the corridors of time as unscrupulous people amount of P4.1 billion, more or less. He moved to quash the information
relentlessly contrive more and more ingenious ways to bilk the coffers for plunder on the ground that R.A. No. 7080, otherwise called the Anti-
of the government. Drastic and radical measures are imperative to fight Plunder Law, is unconstitutional and that the information charges more
the increasingly sophisticated, extraordinarily methodical and than one offense.
economically catastrophic looting of the national treasury. Such is the
In its resolution dated July 9, 2001, the Sandiganbayan denied
Plunder Law, especially designed to disentangle those ghastly tissues of
petitioners motion, along with those filed by his co-accused, Edward
grand-scale corruption which, if left unchecked, will spread like a
Serapio, and his son, Jose Jinggoy Estrada. Petitioner brought this
malignant tumor and ultimately consume the moral and institutional
petition for certiorari and prohibition under Rule 65 to set aside the
fiber of our nation. The Plunder Law, indeed, is a living testament to the
Sandiganbayans resolution principally on the ground that the Anti-
will of the legislature to ultimately eradicate this scourge and thus secure
Plunder Law is void for being vague and overbroad. We gave due course
society against the avarice and other venalities in public office.
to the petition and required respondents to file comments and later heard
These are times that try men's souls. In the checkered history of this the parties in oral arguments on September 18, 2001 and on their
nation, few issues of national importance can equal the amount of memoranda filed on September 28, 2001 to consider the constitutional
interest and passion generated by petitioner's ignominious fall from the claims of petitioner.
highest office, and his eventual prosecution and trial under a virginal
statute. This continuing I. THE ANTI-PLUNDER LAW
saga has driven a wedge of dissension among our people that may linger
for a long time. Only by responding to the clarion call for patriotism, to The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress
rise above factionalism and prejudices, shall we emerge triumphant in on July 12, 1991 pursuant to the constitutional mandate that the State
the midst of ferment. shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption.[2] Section
PREMISES CONSIDERED, this Court holds that RA 7080
2 of the statute provides:
otherwise known as the Plunder Law, as amended by RA 7659, is
CONSTITUTIONAL. Consequently, the petition to declare the law
Definition of the Crime of Plunder; Penalties. Any public officer who,
unconstitutional is DISMISSED for lack of merit.
by himself or in connivance with members of his family, relatives by
SO ORDERED. affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section
MENDOZA, J., concurring in the judgment: 1(d) hereof in the aggregate amount or total value of at least Fifty
million pesos (P50,000,000.00) shall be guilty of the crime of plunder
and shall be punished by reclusion perpetua to death. Any person who 5) By establishing agricultural, industrial or commercial monopolies or
participated with the said public officer in the commission of an other combinations and/or implementation of decrees and orders
offense contributing to the crime of plunder shall likewise be punished intended to benefit particular persons or special interests; or
for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating 6) By taking undue advantage of official position, authority,
circumstances, as provided by the Revised Penal Code, shall be relationship, connection or influence to unjustly enrich himself or
considered by the court. The court shall declare any and all ill-gotten themselves at the expense and to the damage and prejudice of the
wealth and their interests and other incomes and assets including the Filipino people and the Republic of the Philippines.
properties and shares of stocks derived from the deposit or investment
thereof forfeited in favor of the State. (As amended by Sec. 12, R.A. Section 4 of the said law states:
No. 7659).
Rule of Evidence. For purposes of establishing the crime of plunder, it
The term ill-gotten wealth is defined in 1(d) as follows: shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass,
Ill-gotten wealth, means any asset, property, business enterprise or accumulate or acquire ill-gotten wealth, it being sufficient to establish
material possession of any person within the purview of Section Two beyond reasonable doubt a pattern of overt or criminal acts indicative
(2) hereof, acquired by him directly or indirectly through dummies, of the overall unlawful scheme or conspiracy.
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes: II. ANTI-PLUNDER LAW NOT TO BE JUDGED
ON ITS FACE
1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury. The amended information against petitioner charges violations of
2, in relation to 1(d)(1)(2), of the statute. It reads:
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any AMENDED INFORMATION
person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer The undersigned Ombudsman Prosecutor and OIC-Director, EPIB,
concerned; Office of the Ombudsman, hereby accuses former President of the
Republic of the Philippines, Joseph Ejercito Estrada a.k.a Asiong
3) By the illegal or fraudulent conveyance or disposition of assets Salonga and a.k.a Jose Velarde, together with Jose Jinggoy Estrada,
belonging to the National Government or any of its subdivisions, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
agencies or instrumentalities or government-owned or controlled Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr.
corporations and their subsidiaries. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the
crime of plunder, defined and penalized under R.A. No. 7080, as
4) By obtaining, receiving or accepting directly or indirectly any amended by Sec. 12 of R.A. No. 7659, committed as follows:
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise That during the period from June, 1998 to January, 2001, in the
or undertaking; Philippines, and within the jurisdiction of this Honorable Court,
accused Joseph Ejercito Estrada, then a public officer, being then the 351,878,000 shares of stocks, more or less, and the Social Security
President of the Republic of the Philippines, by himself and/or in System (SSS), 329,855,000 shares of stocks, more or less, of the Belle
connivance/conspiracy with his co-accused, who are members of his Corporation in the amount of more or less one billion one hundred two
family, relatives by affinity or consanguinity, business associates, million nine hundred sixty five thousand six hundred seven pesos and
subordinates and/or other persons, by taking undue advantage of his fifty centavos [P1,102,965,607.50] and more or less seven hundred
official position, authority, relationship, connection, or influence, did forty four million six hundred twelve thousand and four hundred fifty
then and there wilfully, unlawfully and criminally amass, accumulate pesos [P744,612,450.00], respectively, or a total of more or less one
and acquire by himself, directly or indirectly, ill-gotten wealth in the billion eight hundred forty seven million five hundred seventy eight
aggregate amount or total value of four billion ninety seven million thousand fifty seven pesos and fifty centavos [P1,847,578,057.50]; and
eight hundred four thousand one hundred seventy three pesos and by collecting or receiving, directly or indirectly, by himself and/or in
seventeen centavos [P4,097,804,173.17], more or less, thereby connivance with John Does and Jane Does, commissions or
unjustly enriching himself or themselves at the expense and to the percentages by reason of said purchases of shares of stock in the
damage of the Filipino people and the Republic of the Philippines, amount of one hundred eighty nine million seven hundred thousand
through any or a combination or a series of overt or criminal acts, or pesos [P189,700,000.00], more or less, from the Belle Corporation
similar schemes or means, described as follows: which became part of the deposit in the Equitable-PCI Bank under the
account name Jose Velarde;
(a) by receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of five hundred forty-five (d) by unjustly enriching himself from commissions, gifts, shares,
million pesos (P545,000,000.00), more or less, from illegal gambling percentages, kickbacks, or any form of pecuniary benefits, in
in the form of gift, share, percentage, kickback or any form of connivance with John Does and Jane Does, in the amount of more or
pecuniary benefit, by himself and/or in connivance with co-accused less three billion two hundred thirty three million one hundred four
Charlie Atong Ang, Jose Jinggoy Estrada, Yolanda T. Ricaforte, thousand one hundred seventy three pesos and seventeen centavos
Edward Serapio, and John Does and Jane Does, in consideration of [P3,233,104,173.17] and depositing the same under his account name
toleration or protection of illegal gambling; Jose Velarde at the Equitable-PCI Bank.

(b) by diverting, receiving, misappropriating, converting or misusing CONTRARY TO LAW.


directly or indirectly, for his or their personal gain and benefit, public
funds in the amount of ONE HUNDRED THIRTY MILLION PESOS Manila for Quezon City, Philippines, 18 April 2001
[P130,000,000.00], more or less, representing a portion of the two
hundred million pesos [P200,000,000.00] tobacco excise tax share But, although this is a prosecution under 2, in relation to 1(d)(1)(2),
allocated for the Province of Ilocos Sur under R.A. No. 7171, by what we are seeing here is a wholesale attack on the validity of the entire
himself and/or in connivance with co-accused Charlie Atong Ang, statute. Petitioner makes little effort to show the alleged invalidity of the
Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or statute as applied to him. His focus is instead on the statute as a whole
Mr. Uy, and Jane Doe a.k.a. Delia Rajas, and other John Does and as he attacks on their face not only 1(d)(1)(2) of the statute but also its
Jane Does; other provisions which deal with plunder committed by illegal or
fraudulent disposition of government assets (1(d)(3)), acquisition of
(c) by directing, ordering and compelling, for his personal gain and interest in business (1(d)(4)), and establishment of monopolies and
benefit, the Government Service Insurance System (GSIS) to purchase
combinations or implementation of decrees intended to benefit purports to draw for his conclusions. We consider first the claim that the
particular persons or special interests (1(d)(5)). statute must be subjected to strict scrutiny.
These other provisions of the statute are irrelevant to this
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
case. What relevance do questions regarding the establishment of
monopolies and combinations, or the ownership of stocks in a business
Petitioner cites the dictum in Ople v. Torres[6] that when the
enterprise, or the illegal or fraudulent dispositions of government
integrity of a fundamental right is at stake, this Court will give the
property have to the criminal prosecution of petitioner when they are
challenged law, administrative order, rule or regulation stricter scrutiny
not even mentioned in the amended information filed against him? Why
and that It will not do for authorities to invoke the presumption of
should it be important to inquire whether the phrase overt act in 1(d) and
regularity in the performance of official duties. As will presently be
2 means the same thing as the phrase criminal act as used in the same
shown, strict scrutiny, as used in that decision, is not the same thing as
provisions when the acts imputed to petitioner in the amended
the strict scrutiny urged by petitioner. Much less did this Court rule that
information are criminal acts? Had the provisions of the Revised Penal
because of the need to give stricter scrutiny to laws abridging
Code been subjected to this kind of line-by-line scrutiny whenever a
fundamental freedoms, it will not give such laws the presumption of
portion thereof was involved in a case, it is doubtful if we would have
validity.
the jurisprudence on penal law that we have today. The prosecution of
crimes would certainly have been hampered, if not stultified. We should Petitioner likewise cites the most celebrated footnote in [American]
not even attempt to assume the power we are asked to exercise. The constitutional law, i.e., footnote 4 of the opinion in United States v.
delicate power of pronouncing an Act of Congress unconstitutional is Carolene Products Co.,[7] in which it was stated:
not to be exercised with reference to hypothetical cases . . . . In
determining the sufficiency of the notice a statute must of necessity be There may be narrower scope for operation of the presumption of
examined in the light of the conduct with which a defendant is constitutionality when legislation appears on its face to be within a
charged.[3] specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be
Nonetheless, it is contended that because these provisions are void
embraced within the Fourteenth.
for being vague and overbroad, the entire statute, including the part
under which petitioner is being prosecuted, is also void. And if the entire
It is unnecessary to consider now whether legislation which restricts
statute is void, there is no law under which he can be prosecuted for
those political processes which can ordinarily be expected to bring
plunder. Nullum crimen sine lege, nullum poena sine lege.
about repeal of undesirable legislation, is to be subjected to more
Two justifications are advanced for this facial challenge to the exacting judicial scrutiny under the general prohibitions of the
validity of the entire statute. The first is that the statute comes within the Fourteenth Amendment than are most other types of legislation.
specific prohibitions of the Constitution and, for this reason, it must be
given strict scrutiny and the normal presumption of constitutionality Nor need we inquire whether similar considerations enter into the
should not be applied to it nor the usual judicial deference given to the review of statutes directed at particular religious, or national, or racial
judgment of Congress.[4] The second justification given for the facial minorities: whether prejudice against discrete and insular minorities
attack on the Anti-Plunder Law is that it is vague and overbroad.[5] may be a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied upon to
We find no basis for such claims either in the rulings of this Court
protect minorities, and which may call for a correspondingly more
or of those of the U.S. Supreme Court, from which petitioners counsel
searching judicial inquiry.
Again, it should be noted that what the U.S. Supreme Court said is inquiring into the substantiality of such interest and examining the
that there may be narrower scope for the operation of the presumption alternative means by which the objectives could be achieved. Under
of constitutionality for legislation which comes within the first ten intermediate review, the substantiality of the governmental interest is
amendments to the American Federal Constitution compared to seriously looked into and the availability of less restrictive alternatives
legislation covered by the Fourteenth Amendment Due Process are considered. Under strict scrutiny, the focus is on the presence of
Clause. The American Court did not say that such legislation is not to compelling, rather than substantial, governmental interest and on the
be presumed constitutional, much less that it is presumptively invalid, absence of less restrictive means for achieving that interest.[10]
but only that a narrower scope will be given for the presumption of
Considering these degrees of strictness in the review of statutes,
constitutionality in respect of such statutes. There is, therefore, no
how many criminal laws can survive the test of strict scrutiny to which
warrant for petitioners contention that the presumption of
petitioner proposes to subject them? How many can pass muster if, as
constitutionality of a legislative act is applicable only where the
petitioner would have it, such statutes are not to be presumed
Supreme Court deals with facts regarding ordinary economic affairs, not
constitutional? Above all, what will happen to the States ability to deal
where the interpretation of the text of the Constitution is involved.[8]
with the problem of crimes, and, in particular, with the problem of graft
What footnote 4 of the Carolene Products case posits is a double and corruption in government, if criminal laws are to be upheld only if
standard of judicial review: strict scrutiny for laws dealing with freedom it is shown that there is a compelling governmental interest for making
of the mind or restricting the political process, and deferential or rational certain conduct criminal and if there is no other means less restrictive
basis standard of review for economic legislation. As Justice (later Chief than that contained in the law for achieving such governmental interest?
Justice) Fernando explained in Malate Hotel and Motel Operators Assn
v. The City Mayor,[9] this simply means that if the liberty involved were B. Vagueness and Overbreadth Doctrines, as Grounds for Facial
freedom of the mind or the person, the standard for the validity of Challenge,
governmental acts is much more rigorous and exacting, but where the Not Applicable to Penal Laws
liberty curtailed affects what are at the most rights of property, the
permissible scope of regulatory measures is wider. Nor do allegations that the Anti-Plunder Law is vague and
overbroad justify a facial review of its validity. The void-for-vagueness
Hence, strict scrutiny is used today to test the validity of laws
doctrine states that a statute which either forbids or requires the doing
dealing with the regulation of speech, gender, or race and facial
of an act in terms so vague that men of common intelligence must
challenges are allowed for this purpose. But criminal statutes, like the
necessarily guess at its meaning and differ as to its application, violates
Anti-Plunder Law, while subject to strict construction, are not subject
the first essential of due process of law.[11] The overbreadth doctrine, on
to strict scrutiny. The two (i.e., strict construction and strict scrutiny) are
the other hand, decrees that a governmental purpose may not be
not the same. The rule of strict construction is a rule of legal
achieved by means which sweep unnecessarily broadly and thereby
hermeneutics which deals with the parsing of statutes to determine the
invade the area of protected freedoms.[12]
intent of the legislature. On the other hand, strict scrutiny is a standard
of judicial review for determining the quality and the amount of A facial challenge is allowed to be made to a vague statute and to
governmental interest brought to justify the regulation of fundamental one which is overbroad because of possible chilling effect upon
freedoms. It is set opposite such terms as deferential review and protected speech. The theory is that [w]hen statutes regulate or proscribe
intermediate review. speech and no readily apparent construction suggests itself as a vehicle
for rehabilitating the statutes in a single prosecution, the transcendent
Thus, under deferential review, laws are upheld if they rationally
value to all society of constitutionally protected expression is deemed
further a legitimate governmental interest, without courts seriously
to justify allowing attacks on overly broad statutes with no requirement
that the person making the attack demonstrate that his own conduct as applying to other persons or other situations in which its application
could not be regulated by a statute drawn with narrow specificity.[13] The might be unconstitutional.[18] As has been pointed out, vagueness
possible harm to society in permitting some unprotected speech to go challenges in the First Amendment context, like overbreadth challenges
unpunished is outweighed by the possibility that the protected speech of typically produce facial invalidation, while statutes found vague as a
others may be deterred and perceived grievances left to fester because matter of due process typically are invalidated [only] as applied to a
of possible inhibitory effects of overly broad statutes. particular defendant.[19] Consequently, there is no basis for petitioners
claim that this Court review the Anti-Plunder Law on its face and in its
This rationale does not apply to penal statutes. Criminal statutes
entirety.
have general in terrorem effect resulting from their very existence, and,
if facial challenge is allowed for this reason alone, the State may well
C. Anti-Plunder Law Should be Construed As Applied
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
Indeed, on its face invalidation of statutes results in striking them
free speech.
down entirely on the ground that they might be applied to parties not
The overbreadth and vagueness doctrines then have special before the Court whose activities are constitutionally protected.[20] It
application only to free speech cases. They are inapt for testing the constitutes a departure from the case and controversy requirement of the
validity of penal statutes. As the U.S. Supreme Court put it, in an Constitution and permits decisions to be made without concrete factual
opinion by Chief Justice Rehnquist, we have not recognized an settings and in sterile abstract contexts.[21]But, as the U.S. Supreme
overbreadth doctrine outside the limited context of the First Court pointed out in Younger v. Harris:[22]
Amendment.[14] In Broadrick v. Oklahoma,[15] the Court ruled that
claims of facial overbreadth have been entertained in cases involving [T]he task of analyzing a proposed statute, pinpointing its deficiencies,
statutes which, by their terms, seek to regulate only spoken words and, and requiring correction of these deficiencies before the statute is put
again, that overbreadth claims, if entertained at all, have been curtailed into effect, is rarely if ever an appropriate task for the judiciary. The
when invoked against ordinary criminal laws that are sought to be combination of the relative remoteness of the controversy, the impact
applied to protected conduct. For this reason, it has been held that a on the legislative process of the relief sought, and above all the
facial challenge to a legislative Act is the most difficult challenge to speculative and amorphous nature of the required line-by-line analysis
mount successfully, since the challenger must establish that no set of of detailed statutes,...ordinarily results in a kind of case that is wholly
circumstances exists under which the Act would be valid.[16] As for the unsatisfactory for deciding constitutional questions, whichever way
vagueness doctrine, it is said that a litigant may challenge a statute on they might be decided.
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 This is the reason on its face invalidation of statutes has been described
the vagueness of the law as applied to the conduct of others.[17] as manifestly strong medicine, to be employed sparingly and only as a
last resort,[23] and is generally disfavored.[24] In determining the
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
constitutionality of a statute, therefore, its provisions which are alleged
are analytical tools developed for testing on their faces statutes in free
to have been violated in a case must be examined in the light of the
speech cases or, as they are called in American law, First Amendment
conduct with which the defendant is charged.[25]
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 This brings me to the question whether, as applied, 2, in relation to
one to whom application of a statute is constitutional will not be heard 1(d)(1)(2), of the Anti-Plunder Law is void on the ground of vagueness
to attack the statute on the ground that impliedly it might also be taken and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD gambling by himself and/or in connivance with his co-accused named
therein, in exchange for protection of illegal gambling; (2) by
As earlier noted, the case against petitioner Joseph Ejercito Estrada misappropriating, converting, or misusing, by himself or in connivance
in the Sandiganbayan is for violation of 2, in relation to 1(d)(1)(2), of with his co-accused named therein, public funds amounting to
the Anti-Plunder Law, which, so far as pertinent, provide: P130,000,000.00, more or less, representing a portion of the share of the
Province of Ilocos Sur in the tobacco excise tax; (3) by ordering the
SEC. 2. Definition of the Crime of Plunder; Penalties. Any public GSIS and the SSS to buy shares of stocks of the Belle Corp., worth
officer who, by himself or in connivance with members of his family, P1,102,965,607.50 and P744,612,450.00 respectively, or the total
relatives by affinity or consanguinity, business associates, subordinates amount of P1,847,578,057.50, for which he received as commission the
or other persons, amasses, accumulates or acquires ill-gotten wealth amount of P189,700,000.00, more or less, from Belle Corp.; (4) by
through a combination or series of overt or criminal acts as described unjustly enriching himself from commissions, gifts, shares, percentages,
in Section 1(d) hereof in the aggregate amount or total value of at least and kickbacks in the amount of P3,233,104,173.17, which he deposited
Fifty million pesos (P50,000,000.00) shall be guilty of the crime of in the Equitable-PCI Bank under the name of Jose Velarde.
plunder and shall be punished by reclusion perpetua to death....
Anyone reading the law in relation to this charge cannot possibly
be mistaken as to what petitioner is accused of in Criminal Case No.
SEC. 1. Definition of Terms. ...
26558 of the Sandiganbayan. But, repeatedly, petitioner complains that
the law is vague and deprives him of due process. He invokes the ruling
(d) Ill-gotten wealth, means any asset, property, business enterprise or
in Connally v. General Constr. Co.[26] that a statute which either forbids
material possession of any person within the purview of Section Two
or requires the doing of an act in terms so vague that men of common
(2) hereof, acquired by him directly or indirectly through dummies, intelligence must necessarily guess at its meaning and differ as to its
nominees, agents, subordinates and/or business associates by any
application, violates the first essential of due process of law. He does
combination or series of the following means or similar schemes: this by questioning not only 2, in relation to 1(d)(1)(2), as applied to
him, but also other provisions of the Anti-Plunder Law not involved in
1) Through misappropriation, conversion, misuse, or malversation of this case. In 55 out of 84 pages of discussion in his Memorandum,
public funds or raids on the public treasury. petitioner tries to show why on their face these provisions are vague and
overbroad by asking questions regarding the meaning of some words
2) By receiving, directly or indirectly, any commission, gift, share, and phrases in the statute, to wit:
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or 1. Whether series means two, three, or four overt or criminal acts
project or by reason of the office or position of the public officer listed in 1(d) in view of the alleged divergence of interpretation given
concerned; to this word by the Ombudsman, the Solicitor General, and the
Sandiganbayan, and whether the acts in a series should be directly
The charge is that in violation of these provisions, during the period related to each other;
June 1998 to January 2001, petitioner, then the President of the 2. Whether combination includes two or more acts or at least two
Philippines, willfully, unlawfully, and criminally amassed wealth in the of the means or similar schemes mentioned in 1(d);
total amount of P4,097,804,173.17, more or less, through a combination
or series of overt or criminal acts, to wit: (1) by receiving or collecting 3. Whether pattern as used in 1(d) must be related to the word
the total amount of P545,000,000.00, more or less, from illegal pattern in 4 which requires that it be indicative of an overall unlawful
scheme or conspiracy;
4. Whether overt means the same thing as criminal; Petitioner contends that the phrase combination or series of overt,
or criminal acts in 1(d) and 2 should state how many acts are needed in
5. Whether misuse of public funds is the same as illegal use of
order to have a combination or a series. It is not really required that this
public property or technical malversation;
be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites the
6. Whether raids on the public treasury refers to raids on the following remarks of Senators Gonzales and Taada during the
National Treasury or the treasury of a province or municipality; discussion of S. No. 733 in the Senate:
7. Whether the receipt or acceptance of a gift, commission, SENATOR GONZALES. To commit the offense of plunder, as
kickback, or pecuniary benefits in connection with a government defined in this Act while constituting a single offense, it must consist
contract or by reason of his office, as used in 1(d)(2), is the same as of a series of overt or criminal acts, such as bribery, extortion,
bribery in the Revised Penal Code or those which are considered corrupt malversation of public funds, swindling, falsification of public
practices of public officers; documents, coercion, theft, fraud, and illegal exaction, and graft or
8. Whether illegal or fraudulent conveyance or disposition of assets corrupt practices act and like offenses. Now, Mr. President, I think,
belonging to the National Government, as used in 1(d)(3), refers to this provision, by itself, will be vague. I am afraid that it might be
technical malversation or illegal use of public funds or property in the faulted for being violative of the due process clause and the right to be
Revised Penal Code; informed of the nature and cause of accusation of an accused. Because,
what is meant by series of overt or criminal acts? I mean, would 2, 3, 4
9. Whether mere ownership of stocks in a private corporation, such or 5 constitute a series? During the period of amendments, can we
as a family firm engaged in fishing, is prohibited under 1(d)(4); establish a minimum of overt acts like, for example, robbery in
10. Whether the phrase monopolies or other combinations in band? The law defines what is robbery in band by the number of
restraint of trade in 1(d)(5) means the same thing as monopolies and participants therein.
combinations in restraint of trade in the Revised Penal Code because the
latter contemplates monopolies and combinations established by any In this particular case, probably, we can statutorily provide for the
person, not necessarily a public officer; and definition of series so that two, for example, would that be already a
series? Or, three, what would be the basis for such a determination?
11. Whether under 1(d)(5) it is the public officer who intends to
confer benefit on a particular person by implementing a decree or it is SENATOR TAADA. I think, Mr. President, that would be called for,
the decree that is intended to benefit the particular person and the public this being a penal legislation, we should be very clear as to what it
officer simply implements it. encompasses; otherwise, we may contravene the constitutional
Many more questions of this tenor are asked in the memorandum provision on the right of the accused to due process.[28]
of petitioner[27] as well as in the dissent of MR. JUSTICE
KAPUNAN. Not only are they irrelevant to this case, as already pointed But, as the later discussion in the Senate shows, the senators in the
out. It is also evident from their examination that what they present are end reached a consensus as to the meaning of the phrase so that an
simply questions of statutory construction to be resolved on a case-to- enumeration of the number of acts needed was no longer
case basis. Consider, for example, the following words and phrases in proposed. Thus, the record shows:
1(d) and 2:
SENATOR MACEDA. In line with our interpellations that
sometimes one or maybe even two acts may already result in
A. Combination or series of overt or criminal acts
such a big amount, on line 25, would the Sponsor consider
deleting the words a series of overt or. To read, therefore: or REP. ISIDRO: I am just intrigued again by our definition of
conspiracy COMMITTED by criminal acts such. Remove the plunder. We say, THROUGH A COMBINATION OR SERIES
idea of necessitating a series. Anyway, the criminal acts are in OF OVERT OR CRIMINAL ACTS AS MENTIONED IN
the plural. SECTION ONE HEREOF. Now when we say combination, we
actually mean to say, if there are two or more means, we mean
SENATOR TAADA. That would mean a combination of two or
to say that number one and two or number one and something
more of the acts mentioned in this.
else are included, how about a series of the same act? For
THE PRESIDENT. Probably, two or more would be . . . example, through misappropriation, conversion, misuse, will
these be included also?
SENATOR MACEDA. Yes, because a series implies several or
many; two or more. ....
SENATOR TAADA: Accepted, Mr. President. REP. ISIDRO: When we say combination, it seems that
.... THE CHAIRMAN (REP. GARCIA): Two.
THE PRESIDENT: If there is only one, then he has to be REP. ISIDRO: Not only two but we seem to mean that two of the
prosecuted under the particular crime. But when we say acts of enumerated means not twice of one enumeration.
plunder there should be, at least, two or more.
THE CHAIRMAN (REP. GARCIA): No, no, not twice.
SENATOR ROMULO: In other words, that is already covered by
REP. ISIDRO: Not twice?
existing laws, Mr. President.[29]
THE CHAIRMAN (REP. GARCIA): Yes, combination is not
Indeed, the record shows that no amendment to S. No. 733 was
twice but combination, two acts.
proposed to this effect. To the contrary, Senators Gonzales and Taada
voted in favor of the bill on its third and final reading on July 25, REP. ISIDRO: So in other words, thats it. When we say
1989. The ordinary meaning of the term combination as the union of combination, we mean, two different acts. It can not be a
two things or acts was adopted, although in the case of series, the repetition of the same act.
senators agreed that a repetition of two or more times of the same thing
THE CHAIRMAN (REP. GARCIA): That be referred to
or act would suffice, thus departing from the ordinary meaning of the
series. Yeah.
word as a group of usually three or more things or events standing or
succeeding in order and having a like relationship to each other, or a REP. ISIDRO: No, no. Supposing one act is repeated, so there are
spatial or temporal succession of persons or things, or a group that has two.
or admits an order of arrangement exhibiting progression.[30]
THE CHAIRMAN (REP. GARCIA): A series.
In the Bicameral Conference Committee on Justice meeting held on
May 7, 1991, the same meanings were given to the words combination REP. ISIDRO: Thats not [a] series. Its a combination. Because
when we say combination or series, we seem to say that two or
and series. Representative Garcia explained that a combination is
composed of two or more of the overt or criminal acts enumerated in more, di ba?
1(d), while a series is a repetition of any of the same overt or criminal THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it,
acts. Thus: really, from ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may fall under
ordinary crime but we have here a combination or series of The fact that there is a conflict in the rulings of the various courts
overt or criminal acts. So. . . does not mean that Rule 8(b) is void for being vague but only that the
U.S. Supreme Court should step in, for one of its essential functions is
....
to assure the uniform interpretation of federal laws.
REP. ISIDRO: When you say combination, two different?
We have a similar provision in Rule 3, 6 of the 1997 Code of Civil
THE CHAIRMAN (REP. GARCIA): Yes. Procedure. It reads:
THE CHAIRMAN (SEN. TAADA): Two different. . . . SEC. 6. Permissive joinder of parties. All persons in whom or against
REP. ISIDRO: Two different acts. whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether jointly,
THE CHAIRMAN (REP. GARCIA): For example, ha. . . severally, or in the alternative, may, except as otherwise provided in
REP. ISIDRO: Now a series, meaning, repetition. . .[31] these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such
Thus, resort to the deliberations in Congress will readily reveal that plaintiffs or to all such defendants may arise in the action; but the
the word combination includes at least two different overt or criminal court may make such orders as may be just to prevent any plaintiff or
acts listed in R.A. No. 7080, such as misappropriation (1(d)(1)) and defendant from being embarrassed or put to expense in connection
taking undue advantage of official position (1(d)(6)). On the other hand, with any proceedings in which he may have no interest. (Emphasis
series is used when the offender commits the same overt or criminal act added)
more than once. There is no plunder if only one act is proven, even if
the ill-gotten wealth acquired thereby amounts to or exceeds the figure This provision has been in our Rules of Court since 1940 but it has
fixed by the law for the offense (now P50,000,000.00). The overt or never been thought of as vague. It will not do, therefore, to cite the
criminal acts need not be joined or separated in space or time, since the conflict of opinions in the United States as evidence of the vagueness of
law does not make such a qualification. It is enough that the prosecution the phrase when we do not have any conflict in this country.
proves that a public officer, by himself or in connivance with others,
amasses wealth amounting to at least P50 million by committing two or B. Pattern of overt or criminal acts
more overt or criminal acts.
Petitioner also contends that the phrase series of acts or transactions Petitioner contends that it is not enough that there be at least two
is the subject of conflicting decisions of various Circuit Courts of acts to constitute either a combination or series because 4 also mentions
Appeals in the United Sates. It turns out that the decisions concerned a a pattern of overt or criminal acts indicative of the overall scheme or
phrase in Rule 8(b) of the Federal Rules of Criminal Procedure which conspiracy, and pattern means an arrangement or order of things or
provides: activity.
A pattern of overt or criminal acts is required in 4 to prove an
(b) Joinder of Defendants: Two or more defendants may be charged in
unlawful scheme or conspiracy. In such a case, it is not necessary to
the same indictment or information if they are alleged to have
prove each and every criminal act done in furtherance of the scheme or
participated in the same act or transaction or in the same series of acts
conspiracy so long as those proven show a pattern indicating the scheme
or transactions constituting an offense or offenses. Such defendants
or conspiracy. In other words, when conspiracy is charged, there must
may be charged in one or more counts together or separately and all of
be more than a combination or series of two or more acts. There must
the defendants need not be charged on each count.(Emphasis added)
be several acts showing a pattern which is indicative of the overall In Connally v. General Constr. Co.[35] the test of vagueness was
scheme or conspiracy. As Senate President Salonga explained, if there formulated as follows:
are 150 constitutive crimes charged, it is not necessary to prove beyond
reasonable doubt all of them. If a pattern can be shown by proving, for [A] statute which either forbids or requires the doing of an act in terms
example, 10 criminal acts, then that would be sufficient to secure so vague that men of common intelligence must necessarily guess at
conviction.[32] its meaning and differ as to its application, violates the first essential
of due process of law.
The State is thereby enabled by this device to deal with several acts
constituting separate crimes as just one crime of plunder by allowing
Holmess test was that of the viewpoint of the bad man. In The Path
their prosecution by means of a single information because there is a
of the Law, Holmes said:
common purpose for committing them, namely, that of amassing,
accumulating or acquiring wealth through such overt or criminal acts.
If you want to know the law and nothing else, you must look at it as a
The pattern is the organizing principle that defines what otherwise
bad man, who cares only for the material consequences which such
would be discreet criminal acts into the single crime of plunder.
knowledge enables him to predict, not as a good one, who finds his
As thus applied to petitioner, the Anti-Plunder Law presents only reasons for conduct, whether inside the law or outside of it, in the
problems of statutory construction, not vagueness or vaguer sanctions of conscience.[36]
[33]
overbreadth. In Primicias v. Fugoso, an ordinance of the City of
Manila, prohibiting the holding of parades and assemblies in streets and Whether from the point of view of a man of common intelligence
public places unless a permit was first secured from the city mayor and or from that of a bad man, there can be no mistaking the meaning of the
penalizing its violation, was construed to mean that it gave the city Anti-Plunder Law as applied to petitioner.
mayor only the power to specify the streets and public places which can
be used for the purpose but not the power to ban absolutely the use of IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF
such places. A constitutional doubt was thus resolved through a limiting MENS REA
construction given to the ordinance.
Nor is the alleged difference of opinion among the Ombudsman, Petitioner argues that, in enacting the statute in question, Congress
the Solicitor General, and the Sandiganbayan as to the number of acts eliminated the element of mens rea, or the scienter, thus reducing the
or crimes needed to constitute plunder proof of the vagueness of the burden of evidence required for proving the crimes which are mala in
statute and, therefore, a ground for its invalidation. For sometime it was se.[37]
thought that under Art. 134 of the Revised Penal Code convictions can There are two points raised in this contention. First is the question
be had for the complex crime of rebellion with murder, arson, and other whether the crime of plunder is a malum in se or a malum
common crimes. The question was finally resolved in 1956 when this prohibitum. For if it is a malum prohibitum, as the Ombudsman and the
Court held that there is no such complex crime because the common Solicitor General say it is,[38] then there is really a constitutional problem
crimes were absorbed in rebellion.[34] The point is that Art. 134 gave because the predicate crimes are mainly mala in se.
rise to a difference of opinion that nearly split the legal profession at the
time, but no one thought Art. 134 to be vague and, therefore, void. A. Plunder A Malum In Se Requiring Proof of Mens Rea
Where, therefore, the ambiguity is not latent and the legislative
intention is discoverable with the aid of the canons of construction, the Plunder is a malum in se, requiring proof of criminal
void for vagueness doctrine has no application. intent. Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is extenuating circumstances, as provided by the Revised Penal Code,
noteworthy that the amended information alleges that the crime of shall be considered by the court.
plunder was committed willfully, unlawfully and criminally. It thus
alleges guilty knowledge on the part of petitioner. The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
In support of his contention that the statute eliminates the
indicates quite clearly that mens rea is an element of plunder since the
requirement of mens rea and that is the reason he claims the statute is
degree of responsibility of the offender is determined by his criminal
void, petitioner cites the following remarks of Senator Taada made
intent. It is true that 2 refers to any person who participates with the said
during the deliberation on S. No. 733:
public officers in the commission of an offense contributing to the crime
of plunder. There is no reason to believe, however, that it does not apply
SENATOR TAADA. . . . And the evidence that will be required to
as well to the public officer as principal in the crime. As Justice Holmes
convict him would not be evidence for each and every individual
said: We agree to all the generalities about not supplying criminal laws
criminal act but only evidence sufficient to establish the conspiracy or
with what they omit, but there is no canon against using common sense
scheme to commit this crime of plunder.[39]
in construing laws as saying what they obviously mean.[41]
However, Senator Taada was discussing 4 as shown by the Finally, any doubt as to whether the crime of plunder is a malum in
succeeding portion of the transcript quoted by petitioner: se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it punishable by reclusion perpetua to death. Other heinous crimes are
is contained in Section 4, Rule of Evidence, which, in the Gentlemans punished with death as a straight penalty in R.A. No. 7659. Referring to
view, would provide for a speedier and faster process of attending to these groups of heinous crimes, this Court held in People v.
this kind of cases? Echagaray:[42]

SENATOR TAADA. Yes, Mr. President . . .[40] The evil of a crime may take various forms. There are crimes that are,
by their very nature, despicable, either because life was callously taken
Seator Taada was only saying that where the charge is conspiracy to or the victim is treated like an animal and utterly dehumanized as to
commit plunder, the prosecution need not prove each and every criminal completely disrupt the normal course of his or her growth as a human
act done to further the scheme or conspiracy, it being enough if it proves being. . . . Seen in this light, the capital crimes of kidnapping and
beyond reasonable doubt a pattern of overt or criminal acts indicative of serious illegal detention for ransom resulting in the death of the victim
the overall unlawful scheme or conspiracy. As far as the acts or the victim is raped, tortured, or subjected to dehumanizing acts;
constituting the pattern are concerned, however, the elements of the destructive arson resulting in death; and drug offenses involving
crime must be proved and the requisite mens rea must be shown. minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and
Indeed, 2 provides that serious illegal detention, where the victim is detained for more than
three days or serious physical injuries were inflicted on the victim or
Any person who participated with the said public officer in the threats to kill him were made or the victim is a minor, robbery with
commission of an offense contributing to the crime of plunder shall
homicide, rape or intentional mutilation, destructive arson, and
likewise be punished for such offense. In the imposition of penalties, carnapping where the owner, driver or occupant of the carnapped
the degree of participation and the attendance of mitigating and
vehicle is killed or raped, which are penalized by reclusion perpetua to Congress simply combined several existing crimes into a single one but
death, are clearly heinous by their very nature. the penalty which it provided for the commission of the crime is grossly
disproportionate to the crimes combined while the quantum of proof
There are crimes, however, in which the abomination lies in the required to prove each predicate crime is greatly reduced.
significance and implications of the subject criminal acts in the scheme
We have already explained why, contrary to petitioners contention,
of the larger socio-political and economic context in which the state
the quantum of proof required to prove the predicate crimes in plunder
finds itself to be struggling to develop and provide for its poor and
is the same as that required were they separately prosecuted. We,
underprivileged masses. Reeling from decades of corrupt tyrannical
therefore, limit this discussion to petitioners claim that the penalty
rule that bankrupted the government and impoverished the population,
provided in the Anti-Plunder Law is grossly disproportionate to the
the Philippine Government must muster the political will to dismantle
penalties imposed for the predicate crimes. Petitioner cites the following
the culture of corruption, dishonesty, greed and syndicated criminality
examples:
that so deeply entrenched itself in the structures of society and the
psyche of the populace. [With the government] terribly lacking the
For example, please consider the following combination or series of
money to provide even the most basic services to its people, any form
overt or criminal acts (assuming the P50 M minimum has been
of misappropriation or misapplication of government funds translates
acquired) in light of the penalties laid down in the Penal Code:
to an actual threat to the very existence of government, and in turn, the
very survival of the people it governs over. Viewed in this context, no
a. One act of indirect bribery (penalized under Art. 211 of the
less heinous are the effects and repercussions of crimes like qualified
Revised Penal Code with prision correccional in its
bribery, destructive arson resulting in death, and drug offenses
medium and maximum periods),
involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and
combined with
damage to society.
one act of fraud against the public treasury (penalized under
The legislative declaration in R.A. No. 7659 that plunder is a
Art. 213 of the Revised Penal Code with prision
heinous offense implies that it is a malum in se. For when the acts
correccional in its medium period to prision mayor in its
punished are inherently immoral or inherently wrong, they are mala in
minimum period,
se[43] and it does not matter that such acts are punished in a special law,
especially since in the case of plunder the predicate crimes are
- equals -
mainly mala in se. Indeed, it would be absurd to treat prosecutions for
plunder as though they are mere prosecutions for violations of the
plunder (punished by reclusion perpetua to death plus
Bouncing Check Law (B.P. Blg. 22) or of an ordinance against
forfeiture of assets under R.A. 7080)
jaywalking, without regard to the inherent wrongness of the acts.
b. One act of prohibited transaction (penalized under Art. 215
B. The Penalty for Plunder of the revised Penal Code with prision correccional in its
minimum period or a fine ranging from P200 to P1,000 or
The second question is whether under the statute the prosecution is both),
relieved of the duty of proving beyond reasonable doubt the guilt of the
defendant. It is contended that, in enacting the Anti-Plunder Law, combined with
one act of establishing a commercial monopoly (penalized under Art. 249 it is reclusion temporal (12 years and 1 day to 20
under Art. 186 of Revised Penal Code with prision years). Yet, when committed on the same occasion, the two are treated
correccional in its minimum period or a fine ranging from as one special complex crime of rape with homicide and punished with
P200 to P6,000, or both), a heavier penalty of reclusion perpetua to death. Obviously, the
legislature views plunder as a crime as serious as robbery with homicide
-equals- or rape with homicide by punishing it with the same penalty. As the
explanatory note accompanying S. No. 733 explains:
plunder (punished by reclusion perpetua to death, and
forfeiture of assets under R.A. 7080. Plunder, a term chosen from other equally apt terminologies
like kleptocracy and economic treason, punishes the use of high office
c. One act of possession of prohibited interest by a public for personal enrichment, committed thru a series of acts done not in
officer (penalized with prision correccional in the public eye but in stealth and secrecy over a period of time, that
its minimum period or a fine of P200 to P1,000, or both
may involve so many persons, here and abroad, and which touch so
under Art. 216 of the Revised Penal Code), many states and territorial units. The acts and/or omissions sought to
be penalized do not involve simple cases of malversation of public
combined with
funds, bribery, extortion, theft and graft but constitute the plunder of
an entire nation resulting in material damage to the national
one act of combination or conspiracy in restraint of trade economy. The above-described crime does not yet exist in Philippine
(penalized under Art. 186 of the Revised penal Code statute books. Thus, the need to come up with a legislation as a
with prision correccional in its minimum period, or a fine safeguard against the possible recurrence of the depravities of the
of P200 to P1,000, or both,
previous regime and as a deterrent to those with similar inclination to
succumb to the corrupting influences of power.
- equals -
Many other examples drawn from the Revised Penal Code and from
plunder, punished by reclusion perpetua to death, and
special laws may be cited to show that, when special complex crimes
forfeiture of assets)[44]
are created out of existing crimes, the penalty for the new crime is
But this is also the case whenever other special complex crimes are heavier.
created out of two or more existing crimes. For example, robbery with
______________________
violence against or intimidation of persons under Art. 294, par. 5 of the
Revised Penal Code is punished with prision correccional in its To recapitulate, had R.A. No. 7080 been a law regulating speech, I
maximum period (4 years, 2 months, and 1 day) to prision mayor in its would have no hesitation examining it on its face on the chance that
medium period (6 years and 1 day to 8 years).Homicide under Art. 249 some of its provisions even though not here before us are void. For then
of the same Code is punished with reclusion temporal (12 years and 1 the risk that some state interest might be jeopardized, i.e., the interest in
day to 20 years). But when the two crimes are committed on the same the free flow of information or the prevention of chill on the freedom of
occasion, the law treats them as a special complex crime of robbery with expression, would trump any marginal interest in security.
homicide and provides the penalty of reclusion perpetua to death for its
But the Anti-Plunder Law is not a regulation of speech. It is a
commission. Again, the penalty for simple rape under Art. 266-B of the
criminal statute designed to combat graft and corruption, especially
Revised Penal Code is reclusion perpetua, while that for homicide
those committed by highly-placed public officials. As conduct and not
speech is its object, the Court cannot take chances by examining other
provisions not before it without risking vital interests of
society. Accordingly, such statute must be examined only as applied to
the defendant and, if found valid as to him, the statute as a whole should
not be declared unconstitutional for overbreadth or vagueness of its
other provisions. Doing so, I come to the following conclusions:
1. That the validity of R.A. No. 7080, otherwise known as the Anti-
Plunder Law, cannot be determined by applying the test of strict scrutiny
in free speech cases without disastrous consequences to the States effort
to prosecute crimes and that, contrary to petitioners contention, the
statute must be presumed to be constitutional;
2. That in determining the constitutionality of the Anti-Plunder
Law, its provisions must be considered in light of the particular acts
alleged to have been committed by petitioner;
3. That, as applied to petitioner, the statute is neither vague nor
overbroad;
4. That, contrary to the contention of the Ombudsman and the
Solicitor General, the crime of plunder is a malum in se and not a malum
prohibitum and the burden of proving each and every predicate crime is
on the prosecution.
For these reasons, I respectfully submit that R.A. No. 7080 is valid
and that, therefore, the petition should be dismissed.

Republic of the Philippines The facts are as follows:
SUPREME COURT
Manila On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into
law the Ordinance.4 The Ordinance is reproduced in full, hereunder:
EN BANC
SECTION 1. Declaration of Policy. It is hereby the declared policy of the
G.R. No. 122846 January 20, 2009 City Government to protect the best interest, health and welfare, and the
morality of its constituents in general and the youth in particular.
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA.
MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners, SEC. 2. Title. This ordinance shall be known as "An Ordinance"
vs. prohibiting short time admission in hotels, motels, lodging houses,
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO pension houses and similar establishments in the City of Manila.
S. LIM, Respondent.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic],
DECISION wash-up rate or other similarly concocted terms, are hereby prohibited in
hotels, motels, inns, lodging houses, pension houses and similar
Tinga, J.: establishments in the City of Manila.

With another city ordinance of Manila also principally involving the tourist SEC. 4. Definition of Term[s]. Short-time admission shall mean
district as subject, the Court is confronted anew with the incessant clash admittance and charging of room rate for less than twelve (12) hours at
between government power and individual liberty in tandem with the any given time or the renting out of rooms more than twice a day or any
archetypal tension between law and morality. other term that may be concocted by owners or managers of said
establishments but would mean the same or would bear the same
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a meaning.
city ordinance barring the operation of motels and inns, among other
establishments, within the Ermita-Malate area. The petition at bar assails SEC. 5. Penalty Clause. Any person or corporation who shall violate any
a similarly-motivated city ordinance that prohibits those same provision of this ordinance shall upon conviction thereof be punished by a
establishments from offering short-time admission, as well as pro-rated or fine of Five Thousand (₱5,000.00) Pesos or imprisonment for a period of
"wash up" rates for such abbreviated stays. Our earlier decision tested not exceeding one (1) year or both such fine and imprisonment at the
the city ordinance against our sacred constitutional rights to liberty, due discretion of the court; Provided, That in case of [a] juridical person, the
process and equal protection of law. The same parameters apply to the president, the manager, or the persons in charge of the operation thereof
present petition. shall be liable: Provided, further, That in case of subsequent conviction
for the same offense, the business license of the guilty party shall
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, automatically be cancelled.
which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of
the Court of Appeals, challenges the validity of Manila City Ordinance No. SEC. 6. Repealing Clause. Any or all provisions of City ordinances not
7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short- consistent with or contrary to this measure or any portion hereof are
Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, hereby deemed repealed.
Inns, Lodging Houses, Pension Houses, and Similar Establishments in
the City of Manila" (the Ordinance). SEC. 7. Effectivity. This ordinance shall take effect immediately upon
approval.
I.
Enacted by the city Council of Manila at its regular session today, During the pre-trial conference, the WLC, TC and STDC agreed to submit
November 10, 1992. the case for decision without trial as the case involved a purely legal
question.16 On October 20, 1993, the RTC rendered a decision declaring
Approved by His Honor, the Mayor on December 3, 1992. the Ordinance null and void. The dispositive portion of the decision reads:

On December 15, 1992, the Malate Tourist and Development WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the
Corporation (MTDC) filed a complaint for declaratory relief with prayer for City of Manila is hereby declared null and void.
a writ of preliminary injunction and/or temporary restraining order (
TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 Accordingly, the preliminary injunction heretofor issued is hereby made
impleading as defendant, herein respondent City of Manila (the City) permanent.
represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as
it includes motels and inns as among its prohibited establishments, be SO ORDERED.17
declared invalid and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was authorized by The RTC noted that the ordinance "strikes at the personal liberty of the
Presidential Decree (P.D.) No. 259 to admit customers on a short time individual guaranteed and jealously guarded by the
basis as well as to charge customers wash up rates for stays of only Constitution."18 Reference was made to the provisions of the Constitution
three hours. encouraging private enterprises and the incentive to needed investment,
as well as the right to operate economic enterprises. Finally, from the
On December 21, 1992, petitioners White Light Corporation (WLC), observation that the illicit relationships the Ordinance sought to dissuade
Titanium Corporation (TC) and Sta. Mesa Tourist and Development could nonetheless be consummated by simply paying for a 12-hour stay,
Corporation (STDC) filed a motion to intervene and to admit attached the RTC likened the law to the ordinance annulled in Ynot v. Intermediate
complaint-in-intervention7 on the ground that the Ordinance directly Appellate Court,19 where the legitimate purpose of preventing
affects their business interests as operators of drive-in-hotels and motels indiscriminate slaughter of carabaos was sought to be effected through
in Manila.8 The three companies are components of the Anito Group of an inter-province ban on the transport of carabaos and carabeef.
Companies which owns and operates several hotels and motels in Metro
Manila.9 The City later filed a petition for review on certiorari with the Supreme
Court.20 The petition was docketed as G.R. No. 112471. However in a
On December 23, 1992, the RTC granted the motion to intervene.10 The resolution dated January 26, 1994, the Court treated the petition as a
RTC also notified the Solicitor General of the proceedings pursuant to petition for certiorari and referred the petition to the Court of Appeals.21
then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC
moved to withdraw as plaintiff.11 Before the Court of Appeals, the City asserted that the Ordinance is a
valid exercise of police power pursuant to Section 458 (4)(iv) of the Local
On December 28, 1992, the RTC granted MTDC's motion to Government Code which confers on cities, among other local
withdraw.12 The RTC issued a TRO on January 14, 1993, directing the government units, the power:
City to cease and desist from enforcing the Ordinance.13 The City filed an
Answer dated January 22, 1993 alleging that the Ordinance is a [To] regulate the establishment, operation and maintenance of cafes,
legitimate exercise of police power.14 restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses and other similar establishments, including tourist guides and
On February 8, 1993, the RTC issued a writ of preliminary injunction transports.22
ordering the city to desist from the enforcement of the Ordinance.15 A
month later, on March 8, 1993, the Solicitor General filed his Comment The Ordinance, it is argued, is also a valid exercise of the power of the
arguing that the Ordinance is constitutional. City under Article III, Section 18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the Standing or locus standi is the ability of a party to demonstrate to the
sanitation and safety, the furtherance of the prosperity and the promotion court sufficient connection to and harm from the law or action challenged
of the morality, peace, good order, comfort, convenience and general to support that party's participation in the case. More importantly, the
welfare of the city and its inhabitants, and such others as be necessary to doctrine of standing is built on the principle of separation of
carry into effect and discharge the powers and duties conferred by this powers,26 sparing as it does unnecessary interference or invalidation by
Chapter; and to fix penalties for the violation of ordinances which shall the judicial branch of the actions rendered by its co-equal branches of
not exceed two hundred pesos fine or six months imprisonment, or both government.
such fine and imprisonment for a single offense.23
The requirement of standing is a core component of the judicial system
Petitioners argued that the Ordinance is unconstitutional and void since it derived directly from the Constitution.27 The constitutional component of
violates the right to privacy and the freedom of movement; it is an invalid standing doctrine incorporates concepts which concededly are not
exercise of police power; and it is an unreasonable and oppressive susceptible of precise definition.28 In this jurisdiction, the extancy of "a
interference in their business. direct and personal interest" presents the most obvious cause, as well as
the standard test for a petitioner's standing.29 In a similar vein, the United
The Court of Appeals reversed the decision of the RTC and affirmed the States Supreme Court reviewed and elaborated on the meaning of the
constitutionality of the Ordinance.24 First, it held that the Ordinance did three constitutional standing requirements of injury, causation, and
not violate the right to privacy or the freedom of movement, as it only redressability in Allen v. Wright.30
penalizes the owners or operators of establishments that admit
individuals for short time stays. Second, the virtually limitless reach of Nonetheless, the general rules on standing admit of several exceptions
police power is only constrained by having a lawful object obtained such as the overbreadth doctrine, taxpayer suits, third party standing
through a lawful method. The lawful objective of the Ordinance is and, especially in the Philippines, the doctrine of transcendental
satisfied since it aims to curb immoral activities. There is a lawful method importance.31
since the establishments are still allowed to operate. Third, the adverse
effect on the establishments is justified by the well-being of its For this particular set of facts, the concept of third party standing as an
constituents in general. Finally, as held in Ermita-Malate Motel Operators exception and the overbreadth doctrine are appropriate. In Powers v.
Association v. City Mayor of Manila, liberty is regulated by law. Ohio,32 the United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on behalf of third parties,
TC, WLC and STDC come to this Court via petition for review on provided three important criteria are satisfied: the litigant must have
certiorari.25 In their petition and Memorandum, petitioners in essence suffered an ‘injury-in-fact,’ thus giving him or her a "sufficiently concrete
repeat the assertions they made before the Court of Appeals. They interest" in the outcome of the issue in dispute; the litigant must have a
contend that the assailed Ordinance is an invalid exercise of police close relation to the third party; and there must exist some hindrance to
power. the third party's ability to protect his or her own interests."33 Herein, it is
clear that the business interests of the petitioners are likewise injured by
II. the Ordinance. They rely on the patronage of their customers for their
continued viability which appears to be threatened by the enforcement of
We must address the threshold issue of petitioners’ standing. Petitioners the Ordinance. The relative silence in constitutional litigation of such
allege that as owners of establishments offering "wash-up" rates, their special interest groups in our nation such as the American Civil Liberties
business is being unlawfully interfered with by the Ordinance. However, Union in the United States may also be construed as a hindrance for
petitioners also allege that the equal protection rights of their clients are customers to bring suit.34
also being interfered with. Thus, the crux of the matter is whether or not
these establishments have the requisite standing to plead for protection American jurisprudence is replete with examples where parties-in-interest
of their patrons' equal protection rights. were allowed standing to advocate or invoke the fundamental due
process or equal protection claims of other persons or classes of persons
injured by state action. In Griswold v. Connecticut,35 the United States
Supreme Court held that physicians had standing to challenge a morals. A purpose similar to the annulled ordinance in City of
reproductive health statute that would penalize them as accessories as Manila which sought a blanket ban on motels, inns and similar
well as to plead the constitutional protections available to their patients. establishments in the Ermita-Malate area. However, the constitutionality
The Court held that: of the ordinance in Ermita-Malate was sustained by the Court.

"The rights of husband and wife, pressed here, are likely to be diluted or The common thread that runs through those decisions and the case at
adversely affected unless those rights are considered in a suit involving bar goes beyond the singularity of the localities covered under the
those who have this kind of confidential relation to them."36 respective ordinances. All three ordinances were enacted with a view of
regulating public morals including particular illicit activity in transient
An even more analogous example may be found in Craig v. lodging establishments. This could be described as the middle case,
Boren,37 wherein the United States Supreme Court held that a licensed wherein there is no wholesale ban on motels and hotels but the services
beverage vendor has standing to raise the equal protection claim of a offered by these establishments have been severely restricted. At its
male customer challenging a statutory scheme prohibiting the sale of core, this is another case about the extent to which the State can intrude
beer to males under the age of 21 and to females under the age of 18. into and regulate the lives of its citizens.
The United States High Court explained that the vendors had standing
"by acting as advocates of the rights of third parties who seek access to The test of a valid ordinance is well established. A long line of decisions
their market or function."38 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
Assuming arguendo that petitioners do not have a relationship with their enact and pass according to the procedure prescribed by law, it must
patrons for the former to assert the rights of the latter, the overbreadth also conform to the following substantive requirements: (1) must not
doctrine comes into play. In overbreadth analysis, challengers to contravene the Constitution or any statute; (2) must not be unfair or
government action are in effect permitted to raise the rights of third oppressive; (3) must not be partial or discriminatory; (4) must not prohibit
parties. Generally applied to statutes infringing on the freedom of speech, but may regulate trade; (5) must be general and consistent with public
the overbreadth doctrine applies when a statute needlessly restrains policy; and (6) must not be unreasonable.41
even constitutionally guaranteed rights.39 In this case, the petitioners
claim that the Ordinance makes a sweeping intrusion into the right to The Ordinance prohibits two specific and distinct business practices,
liberty of their clients. We can see that based on the allegations in the namely wash rate admissions and renting out a room more than twice a
petition, the Ordinance suffers from overbreadth. day. The ban is evidently sought to be rooted in the police power as
conferred on local government units by the Local Government Code
We thus recognize that the petitioners have a right to assert the through such implements as the general welfare clause.
constitutional rights of their clients to patronize their establishments for a
"wash-rate" time frame. A.

III. Police power, while incapable of an exact definition, has been purposely
veiled in general terms to underscore its comprehensiveness to meet all
To students of jurisprudence, the facts of this case will recall to mind not exigencies and provide enough room for an efficient and flexible
only the recent City of Manila ruling, but our 1967 decision in Ermita- response as the conditions warrant.42 Police power is based upon the
Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor concept of necessity of the State and its corresponding right to protect
of Manila.40Ermita-Malate concerned the City ordinance requiring patrons itself and its people.43 Police power has been used as justification for
to fill up a prescribed form stating personal information such as name, numerous and varied actions by the State. These range from the
gender, nationality, age, address and occupation before they could be regulation of dance halls,44 movie theaters,45 gas stations46 and
admitted to a motel, hotel or lodging house. This earlier ordinance was cockpits.47 The awesome scope of police power is best demonstrated by
precisely enacted to minimize certain practices deemed harmful to public
the fact that in its hundred or so years of presence in our nation’s legal person of life, liberty, or property.49 Procedural due process concerns
system, its use has rarely been denied. itself with government action adhering to the established process when it
makes an intrusion into the private sphere. Examples range from the form
The apparent goal of the Ordinance is to minimize if not eliminate the use of notice given to the level of formality of a hearing.
of the covered establishments for illicit sex, prostitution, drug use and
alike. These goals, by themselves, are unimpeachable and certainly fall If due process were confined solely to its procedural aspects, there would
within the ambit of the police power of the State. Yet the desirability of arise absurd situation of arbitrary government action, provided the proper
these ends do not sanctify any and all means for their achievement. formalities are followed. Substantive due process completes the
Those means must align with the Constitution, and our emerging protection envisioned by the due process clause. It inquires whether the
sophisticated analysis of its guarantees to the people. The Bill of Rights government has sufficient justification for depriving a person of life,
stands as a rebuke to the seductive theory of Macchiavelli, and, liberty, or property.50
sometimes even, the political majorities animated by his cynicism.
The question of substantive due process, moreso than most other fields
Even as we design the precedents that establish the framework for of law, has reflected dynamism in progressive legal thought tied with the
analysis of due process or equal protection questions, the courts are expanded acceptance of fundamental freedoms. Police power,
naturally inhibited by a due deference to the co-equal branches of traditionally awesome as it may be, is now confronted with a more
government as they exercise their political functions. But when we are rigorous level of analysis before it can be upheld. The vitality though of
compelled to nullify executive or legislative actions, yet another form of constitutional due process has not been predicated on the frequency with
caution emerges. If the Court were animated by the same passing which it has been utilized to achieve a liberal result for, after all, the
fancies or turbulent emotions that motivate many political decisions, libertarian ends should sometimes yield to the prerogatives of the State.
judicial integrity is compromised by any perception that the judiciary is Instead, the due process clause has acquired potency because of the
merely the third political branch of government. We derive our respect sophisticated methodology that has emerged to determine the proper
and good standing in the annals of history by acting as judicious and metes and bounds for its application.
neutral arbiters of the rule of law, and there is no surer way to that end
than through the development of rigorous and sophisticated legal C.
standards through which the courts analyze the most fundamental and
far-reaching constitutional questions of the day. The general test of the validity of an ordinance on substantive due
process grounds is best tested when assessed with the evolved footnote
B. 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene
Products.51 Footnote 4 of the Carolene Products case acknowledged that
The primary constitutional question that confronts us is one of due the judiciary would defer to the legislature unless there is a discrimination
process, as guaranteed under Section 1, Article III of the Constitution. against a "discrete and insular" minority or infringement of a "fundamental
Due process evades a precise definition.48 The purpose of the guaranty is right."52 Consequently, two standards of judicial review were established:
to prevent arbitrary governmental encroachment against the life, liberty strict scrutiny for laws dealing with freedom of the mind or restricting the
and property of individuals. The due process guaranty serves as a political process, and the rational basis standard of review for economic
protection against arbitrary regulation or seizure. Even corporations and legislation.
partnerships are protected by the guaranty insofar as their property is
concerned. A third standard, denominated as heightened or immediate scrutiny, was
later adopted by the U.S. Supreme Court for evaluating classifications
The due process guaranty has traditionally been interpreted as imposing based on gender53 and legitimacy.54 Immediate scrutiny was adopted by
two related but distinct restrictions on government, "procedural due the U.S. Supreme Court in Craig,55 after the Court declined to do so in
process" and "substantive due process." Procedural due process refers Reed v. Reed.56 While the test may have first been articulated in equal
to the procedures that the government must follow before it deprives a
protection analysis, it has in the United States since been applied in all with each other, their society and nature, in a manner innately
substantive due process cases as well. understood by them as inherent, without doing harm or injury to others.

We ourselves have often applied the rational basis test mainly in analysis D.
of equal protection challenges.57 Using the rational basis examination,
laws or ordinances are upheld if they rationally further a legitimate The rights at stake herein fall within the same fundamental rights to
governmental interest.58 Under intermediate review, governmental liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We
interest is extensively examined and the availability of less restrictive expounded on that most primordial of rights, thus:
measures is considered.59 Applying strict scrutiny, the focus is on the
presence of compelling, rather than substantial, governmental interest Liberty as guaranteed by the Constitution was defined by Justice
and on the absence of less restrictive means for achieving that interest. Malcolm to include "the right to exist and the right to be free from arbitrary
restraint or servitude. The term cannot be dwarfed into mere freedom
In terms of judicial review of statutes or ordinances, strict scrutiny refers from physical restraint of the person of the citizen, but is deemed to
to the standard for determining the quality and the amount of embrace the right of man to enjoy the facilities with which he has been
governmental interest brought to justify the regulation of fundamental endowed by his Creator, subject only to such restraint as are necessary
freedoms.60 Strict scrutiny is used today to test the validity of laws dealing for the common welfare."[65] In accordance with this case, the rights of the
with the regulation of speech, gender, or race as well as other citizen to be free to use his faculties in all lawful ways; to live and work
fundamental rights as expansion from its earlier applications to equal where he will; to earn his livelihood by any lawful calling; and to pursue
protection.61 The United States Supreme Court has expanded the scope any avocation are all deemed embraced in the concept of liberty.[66]
of strict scrutiny to protect fundamental rights such as suffrage,62 judicial
access63and interstate travel.64 The U.S. Supreme Court in the case of Roth v. Board of Regents, sought
to clarify the meaning of "liberty." It said:
If we were to take the myopic view that an Ordinance should be analyzed
strictly as to its effect only on the petitioners at bar, then it would seem While the Court has not attempted to define with exactness the liberty . . .
that the only restraint imposed by the law which we are capacitated to act guaranteed [by the Fifth and Fourteenth Amendments], the term denotes
upon is the injury to property sustained by the petitioners, an injury that not merely freedom from bodily restraint but also the right of the
would warrant the application of the most deferential standard – the individual to contract, to engage in any of the common occupations of life,
rational basis test. Yet as earlier stated, we recognize the capacity of the to acquire useful knowledge, to marry, establish a home and bring up
petitioners to invoke as well the constitutional rights of their patrons – children, to worship God according to the dictates of his own conscience,
those persons who would be deprived of availing short time access or and generally to enjoy those privileges long recognized . . . as essential
wash-up rates to the lodging establishments in question. to the orderly pursuit of happiness by free men. In a Constitution for a
free people, there can be no doubt that the meaning of "liberty" must be
Viewed cynically, one might say that the infringed rights of these broad indeed.67 [Citations omitted]
customers were are trivial since they seem shorn of political
consequence. Concededly, these are not the sort of cherished rights that, It cannot be denied that the primary animus behind the ordinance is the
when proscribed, would impel the people to tear up their cedulas. Still, curtailment of sexual behavior. The City asserts before this Court that the
the Bill of Rights does not shelter gravitas alone. Indeed, it is those subject establishments "have gained notoriety as venue of ‘prostitution,
"trivial" yet fundamental freedoms – which the people reflexively exercise adultery and fornications’ in Manila since they ‘provide the necessary
any day without the impairing awareness of their constitutional atmosphere for clandestine entry, presence and exit and thus became
consequence – that accurately reflect the degree of liberty enjoyed by the the ‘ideal haven for prostitutes and thrill-seekers.’"68 Whether or not this
people. Liberty, as integrally incorporated as a fundamental right in the depiction of a mise-en-scene of vice is accurate, it cannot be denied that
Constitution, is not a Ten Commandments-style enumeration of what may legitimate sexual behavior among willing married or consenting single
or what may not be done; but rather an atmosphere of freedom where the adults which is constitutionally protected69 will be curtailed as well, as it
people do not feel labored under a Big Brother presence as they interact
was in the City of Manila case. Our holding therein retains significance for necessary for the accomplishment of the purpose and not unduly
our purposes: oppressive of private rights.71 It must also be evident that no other
alternative for the accomplishment of the purpose less intrusive of private
The concept of liberty compels respect for the individual whose claim to rights can work. More importantly, a reasonable relation must exist
privacy and interference demands respect. As the case of Morfe v. between the purposes of the measure and the means employed for its
Mutuc, borrowing the words of Laski, so very aptly stated: accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not
Man is one among many, obstinately refusing reduction to unity. His be permitted to be arbitrarily invaded.72
separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations are Lacking a concurrence of these requisites, the police measure shall be
built. He cannot abandon the consequences of his isolation, which are, struck down as an arbitrary intrusion into private rights. As held in Morfe
broadly speaking, that his experience is private, and the will built out of v. Mutuc, the exercise of police power is subject to judicial review when
that experience personal to himself. If he surrenders his will to others, he life, liberty or property is affected.73 However, this is not in any way meant
surrenders himself. If his will is set by the will of others, he ceases to be a to take it away from the vastness of State police power whose exercise
master of himself. I cannot believe that a man no longer a master of enjoys the presumption of validity.74
himself is in any real sense free.
Similar to the Comelec resolution requiring newspapers to donate
Indeed, the right to privacy as a constitutional right was recognized advertising space to candidates, this Ordinance is a blunt and heavy
in Morfe, the invasion of which should be justified by a compelling state instrument.75 The Ordinance makes no distinction between places
interest. Morfe accorded recognition to the right to privacy independently frequented by patrons engaged in illicit activities and patrons engaged in
of its identification with liberty; in itself it is fully deserving of constitutional legitimate actions. Thus it prevents legitimate use of places where illicit
protection. Governmental powers should stop short of certain intrusions activities are rare or even unheard of. A plain reading of section 3 of the
into the personal life of the citizen.70 Ordinance shows it makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and subject them without
We cannot discount other legitimate activities which the Ordinance would exception to the unjustified prohibition.
proscribe or impair. There are very legitimate uses for a wash rate or
renting the room out for more than twice a day. Entire families are known The Court has professed its deep sentiment and tenderness of the
to choose pass the time in a motel or hotel whilst the power is Ermita-Malate area, its longtime home,76 and it is skeptical of those who
momentarily out in their homes. In transit passengers who wish to wash wish to depict our capital city – the Pearl of the Orient – as a modern-day
up and rest between trips have a legitimate purpose for abbreviated stays Sodom or Gomorrah for the Third World set. Those still steeped in Nick
in motels or hotels. Indeed any person or groups of persons in need of Joaquin-dreams of the grandeur of Old Manila will have to accept that
comfortable private spaces for a span of a few hours with purposes other Manila like all evolving big cities, will have its problems. Urban decay is a
than having sex or using illegal drugs can legitimately look to staying in a fact of mega cities such as Manila, and vice is a common problem
motel or hotel as a convenient alternative. confronted by the modern metropolis wherever in the world. The solution
to such perceived decay is not to prevent legitimate businesses from
E. offering a legitimate product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting the dynamism
of individuals that would bring a new grandeur to Manila.
That the Ordinance prevents the lawful uses of a wash rate depriving
patrons of a product and the petitioners of lucrative business ties in with
another constitutional requisite for the legitimacy of the Ordinance as a The behavior which the Ordinance seeks to curtail is in fact already
police power measure. It must appear that the interests of the public prohibited and could in fact be diminished simply by applying existing
generally, as distinguished from those of a particular class, require an laws. Less intrusive measures such as curbing the proliferation of
interference with private rights and the means must be reasonably prostitutes and drug dealers through active police work would be more
effective in easing the situation. So would the strict enforcement of
existing laws and regulations penalizing prostitution and drug use. These Yet the continuing progression of the human story has seen not only the
measures would have minimal intrusion on the businesses of the acceptance of the right-wrong distinction, but also the advent of
petitioners and other legitimate merchants. Further, it is apparent that the fundamental liberties as the key to the enjoyment of life to the fullest. Our
Ordinance can easily be circumvented by merely paying the whole day democracy is distinguished from non-free societies not with any more
rate without any hindrance to those engaged in illicit activities. Moreover, extensive elaboration on our part of what is moral and immoral, but from
drug dealers and prostitutes can in fact collect "wash rates" from their our recognition that the individual liberty to make the choices in our lives
clientele by charging their customers a portion of the rent for motel rooms is innate, and protected by the State. Independent and fair-minded
and even apartments. judges themselves are under a moral duty to uphold the Constitution as
the embodiment of the rule of law, by reason of their expression of
IV. consent to do so when they take the oath of office, and because they are
entrusted by the people to uphold the law.81
We reiterate that individual rights may be adversely affected only to the
extent that may fairly be required by the legitimate demands of public Even as the implementation of moral norms remains an indispensable
interest or public welfare. The State is a leviathan that must be restrained complement to governance, that prerogative is hardly absolute,
from needlessly intruding into the lives of its citizens. However well- especially in the face of the norms of due process of liberty. And while
intentioned the Ordinance may be, it is in effect an arbitrary and the tension may often be left to the courts to relieve, it is possible for the
whimsical intrusion into the rights of the establishments as well as their government to avoid the constitutional conflict by employing more
patrons. The Ordinance needlessly restrains the operation of the judicious, less drastic means to promote morality.
businesses of the petitioners as well as restricting the rights of their
patrons without sufficient justification. The Ordinance rashly equates WHEREFORE, the Petition is GRANTED. The Decision of the Court of
wash rates and renting out a room more than twice a day with immorality Appeals is REVERSED, and the Decision of the Regional Trial Court of
without accommodating innocuous intentions. Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby
declared UNCONSTITUTIONAL. No pronouncement as to costs.
The promotion of public welfare and a sense of morality among citizens
deserves the full endorsement of the judiciary provided that such SO ORDERED.
measures do not trample rights this Court is sworn to protect.77 The
notion that the promotion of public morality is a function of the State is as
old as Aristotle.78 The advancement of moral relativism as a school of
philosophy does not de-legitimize the role of morality in law, even if it may
foster wider debate on which particular behavior to penalize. It is
conceivable that a society with relatively little shared morality among its
citizens could be functional so long as the pursuit of sharply variant moral
perspectives yields an adequate accommodation of different interests.79

To be candid about it, the oft-quoted American maxim that "you cannot
legislate morality" is ultimately illegitimate as a matter of law, since as
explained by Calabresi, that phrase is more accurately interpreted as
meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong.80 Our penal laws, for
one, are founded on age-old moral traditions, and as long as there are
widely accepted distinctions between right and wrong, they will remain so
oriented.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon,
representing the Government of the Republic of the Philippines, signed
EN BANC in Manila the "Extradition Treaty Between the Government of the
Republic of the Philippines and the Government of the United States
[G.R. No. 139465. January 18, 2000] of America" (hereinafter referred to as the RP-US Extradition Treaty).
The Senate, by way of Resolution No. 11, expressed its concurrence in
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. the ratification of said treaty. It also expressed its concurrence in the
LANTION, Presiding Judge, Regional Trial Court of Manila, Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
Branch 25, and MARK B. JIMENEZ, respondents. Esmso admissibility of the documents accompanying an extradition request
upon certification by the principal diplomatic or consular officer of the
DECISION requested state resident in the Requesting State). Kycalr

MELO, J.: On June 18, 1999, the Department of Justice received from the
Department of Foreign Affairs U. S. Note Verbale No. 0522
The individual citizen is but a speck of particle or molecule vis--vis the containing a request for the extradition of private respondent Mark
vast and overwhelming powers of government. His only guarantee Jimenez to the United States. Attached to the Note Verbale were the
against oppression and tyranny are his fundamental liberties under the Grand Jury Indictment, the warrant of arrest issued by the U.S. District
Bill of Rights which shield him in times of need. The Court is now Court, Southern District of Florida, and other supporting documents
called to decide whether to uphold a citizens basic due process rights, for said extradition. Based on the papers submitted, private respondent
or the governments ironclad duties under a treaty. The bugle sounds appears to be charged in the United States with violation of the
and this Court must once again act as the faithful guardian of the following provisions of the United States Code (USC):
fundamental writ.
A)......18 USC 371 (Conspiracy to commit offense or to
The petition at our doorstep is cast against the following factual defraud the United States; two [2] counts; Maximum
backdrop: Penalty 5 years on each count);

On January 13, 1977, then President Ferdinand E. Marcos issued B)......26 USC 7201 (Attempt to evade or defeat tax;
Presidential Decree No. 1069 "Prescribing the Procedure for the four [4] counts; Maximum Penalty 5 years on each
Extradition of Persons Who Have Committed Crimes in a Foreign count);
Country". The Decree is founded on: the doctrine of incorporation
under the Constitution; the mutual concern for the suppression of C)......18 USC 1343 (Fraud by wire, radio, or
crime both in the state where it was committed and the state where the television; two [2] counts; Maximum Penalty 5 years on
criminal may have escaped; the extradition treaty with the Republic of each count);
Indonesia and the intention of the Philippines to enter into similar
treaties with other interested countries; and the need for rules to guide D)......18 USC 1001 (False statement or entries; six [6]
the executive department and the courts in the proper implementation counts; Maximum Penalty 5 years on each count);
of said treaties.
E)......2 USC 441f (Election contributions in name of documents submitted in accordance with the provisions
another; thirty-three [33] counts; Maximum Penalty of the extradition treaty and our extradition law. Article
less than one year). 7 of the Extradition Treaty between the Philippines and
the United States enumerates the documentary
(p. 14, Rollo.) requirements and establishes the procedures under
which the documents submitted shall be received and
On the same day, petitioner issued Department Order No. 249 admitted as evidence. Evidentiary requirements under
designating and authorizing a panel of attorneys to take charge of and our domestic law are also set forth in Section 4 of P.D.
to handle the case pursuant to Section 5(1) of Presidential Decree No. No. 1069.
1069. Accordingly, the panel began with the "technical evaluation and
assessment" of the extradition request and the documents in support Evaluation by this Department of the aforementioned
thereof. The panel found that the "official English translation of some documents is not a preliminary investigation nor akin to
documents in Spanish were not attached to the request and that there preliminary investigation of criminal cases. We merely
are some other matters that needed to be addressed" (p. 15, determine whether the procedures and requirements
Rollo). Calrky under the relevant law and treaty have been complied
with by the Requesting Government. The
Pending evaluation of the aforestated extradition documents, private constitutionally guaranteed rights of the accused in all
respondent, through counsel, wrote a letter dated July 1, 1999 criminal prosecutions are therefore not available.
addressed to petitioner requesting copies of the official extradition
request from the U. S. Government, as well as all documents and It is only after the filing of the petition for extradition
papers submitted therewith; and that he be given ample time to when the person sought to be extradited will be
comment on the request after he shall have received copies of the furnished by the court with copies of the petition,
requested papers. Private respondent also requested that the request and extradition documents and this Department
proceedings on the matter be held in abeyance in the meantime. will not pose any objection to a request for ample time
to evaluate said documents. Mesm
Later, private respondent requested that preliminarily, he be given at
least a copy of, or access to, the request of the United States 2. The formal request for extradition of the United
Government, and after receiving a copy of the Diplomatic Note, a States contains grand jury information and documents
period of time to amplify on his request. obtained through grand jury process covered by strict
secrecy rules under United States law. The United
In response to private respondents July 1, 1999 letter, petitioner, in a States had to secure orders from the concerned District
reply-letter dated July 13, 1999 (but received by private respondent Courts authorizing the United States to disclose certain
only on August 4, 1999), denied the foregoing requests for the grand jury information to Philippine government and
following reasons: law enforcement personnel for the purpose of
extradition of Mr. Jimenez. Any further disclosure of
1. We find it premature to furnish you with copies of the said information is not authorized by the United
the extradition request and supporting documents from States District Courts. In this particular extradition
the United States Government, pending evaluation by request the United States Government requested the
this Department of the sufficiency of the extradition Philippine Government to prevent unauthorized
disclosure of the subject information. This Departments The aforementioned petition was docketed as Civil Case No. 99-94684
denial of your request is consistent with Article 7 of the and thereafter raffled to Branch 25 of said regional trial court stationed
RP-US Extradition Treaty which provides that the in Manila which is presided over by the Honorable Ralph C. Lantion.
Philippine Government must represent the interests of
the United States in any proceedings arising out of a After due notice to the parties, the case was heard on August 9, 1999.
request for extradition. The Department of Justice under Petitioner, who appeared in his own behalf, moved that he be given
P.D. No. 1069 is the counsel of the foreign ample time to file a memorandum, but the same was denied.
governments in all extradition requests.
On August 10, 1999, respondent judge issued an order dated the
3. This Department is not in a position to hold in previous day, disposing:
abeyance proceedings in connection with an extradition
request. Article 26 of the Vienna Convention on the WHEREFORE, this Court hereby Orders the
Law of Treaties, to which we are a party provides that respondents, namely: the Secretary of Justice, the
"[E]very treaty in force is binding upon the parties to it Secretary of Foreign Affairs and the Director of the
and must be performed by them in good faith". National Bureau of Investigation, their agents and/or
Extradition is a tool of criminal law enforcement and to representatives to maintain the status quo by refraining
be effective, requests for extradition or surrender of from committing the acts complained of; from
accused or convicted persons must be processed conducting further proceedings in connection with the
expeditiously. request of the United States Government for the
extradition of the petitioner; from filing the
(pp. 77-78, Rollo.) corresponding Petition with a Regional Trial court; and
from performing any act directed to the extradition of
Such was the state of affairs when, on August 6, 1999, private the petitioner to the United States, for a period of
respondent filed with the Regional Trial Court of the National Capital twenty (20) days from service on respondents of this
Judicial Region a petition against the Secretary of Justice, the Order, pursuant to Section 5, Rule 58 of the 1997 Rules
Secretary of Foreign Affairs, and the Director of the National Bureau of Court.
of Investigation, for mandamus (to compel herein petitioner to furnish
private respondent the extradition documents, to give him access The hearing as to whether or not this Court shall issue
thereto, and to afford him an opportunity to comment on, or oppose, the preliminary injunction, as agreed upon by the
the extradition request, and thereafter to evaluate the request counsels for the parties herein, is set on August 17,
impartially, fairly and objectively); certiorari (to set aside herein 1999 at 9:00 oclock in the morning. The respondents
petitioners letter dated July 13, 1999); and prohibition (to restrain are, likewise, ordered to file their written comment
petitioner from considering the extradition request and from filing an and/or opposition to the issuance of a Preliminary
extradition petition in court; and to enjoin the Secretary of Foreign Injunction on or before said date.
Affairs and the Director of the NBI from performing any act directed
to the extradition of private respondent to the United States), with an SO ORDERED.
application for the issuance of a temporary restraining order and a writ
of preliminary injunction (pp. 104-105, Rollo). Scslx (pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that: IV.

PUBLIC RESPONDENT ACTED WITHOUT OR IN PRIVATE RESPONDENT HAS NO RIGHT IN


EXCESS OF JURISDICTION OR WITH GRAVE ESSE THAT NEEDS PROTECTION AND
ABUSE OF DISCRETION AMOUNTING TO LACK ENFORCEMENT, AND WILL NOT SUFFER ANY
OR EXCESS OF JURISDICTION IN ISSUING THE IRREPARABLE INJURY.
TEMPORARY RESTRAINING ORDER
BECAUSE: Slxs c (pp. 19-20, Rollo.)

I. On August 17, 1999, the Court required private respondent to file his
comment. Also issued, as prayed for, was a temporary restraining
BY ORDERING HEREIN PETITIONER TO order (TRO) providing: slx mis
REFRAIN FROM COMMITTING THE ACTS
COMPLAINED OF, I. E., TO DESIST FROM NOW, THEREFORE, effective immediately and
REFUSING PRIVATE RESPONDENT ACCESS TO continuing until further orders from this Court, You,
THE OFFICIAL EXTRADITION REQUEST AND Respondent Judge Ralph C. Lantion, your agents,
DOCUMENTS AND FROM DENYING PRIVATE representatives or any person or persons acting in your
RESPONDENT AN OPPORTUNITY TO FILE A place or stead are hereby ORDERED to CEASE and
COMMENT ON, OR OPPOSITION TO, THE DESIST from enforcing the assailed order dated August
REQUEST, THE MAIN PRAYER FOR A WRIT OF 9, 1999 issued by public respondent in Civil Case No.
MANDAMUS IN THE PETITION FOR 99-94684.
MANDAMUS, CERTIORARI AND PROHIBITION
WAS, IN EFFECT, GRANTED SO AS TO GIVEN by the Honorable HILARIO G. DAVIDE, JR.,
CONSTITUTE AN ADJUDICATION ON THE Chief Justice, Supreme Court of the Philippines, this
MERITS OF THE MANDAMUS ISSUES; 17th day of August 1999.

II. (pp. 120-121, Rollo.)

PETITIONER WAS UNQUALIFIEDLY The case was heard on oral argument on August 31, 1999, after which
PREVENTED FROM PERFORMING LEGAL the parties, as directed, filed their respective memoranda.
DUTIES UNDER THE EXTRADITION TREATY
AND THE PHILIPPINE EXTRADITION LAW; From the pleadings of the opposing parties, both procedural and
substantive issues are patent. However, a review of these issues as well
III. as the extensive arguments of both parties, compel us to delineate the
focal point raised by the pleadings: During the evaluation stage of the
THE PETITION FOR (MANDAMUS), CERTIORARI extradition proceedings, is private respondent entitled to the two basic
AND PROHIBITION IS, ON ITS FACE, FORMALLY due process rights of notice and hearing? An affirmative answer would
AND SUBSTANTIALLY DEFICIENT; AND necessarily render the proceedings at the trial court, moot and
academic (the issues of which are substantially the same as those
before us now), while a negative resolution would call for the 1. The original or an authentic copy of the criminal charge and the
immediate lifting of the TRO issued by this Court dated August 24, warrant of arrest issued by the authority of the Requesting State having
1999, thus allowing petitioner to fast-track the process leading to the jurisdiction over the matter, or some other instruments having
filing of the extradition petition with the proper regional trial court. equivalent legal force;
Corollarily, in the event that private respondent is adjudged entitled to
basic due process rights at the evaluation stage of the extradition 2. A recital of the acts for which extradition is requested, with the
proceedings, would this entitlement constitute a breach of the legal fullest particulars as to the name and identity of the accused, his
commitments and obligations of the Philippine Government under the whereabouts in the Philippines, if known, the acts or omissions
RP-US Extradition Treaty? And assuming that the result would indeed complained of, and the time and place of the commission of these
be a breach, is there any conflict between private respondents basic acts; Sda adsc
due process rights and the provisions of the RP-US Extradition Treaty?
3. The text of the applicable law or a statement of the contents of said
The issues having transcendental importance, the Court has elected to law, and the designation or description of the offense by the law,
go directly into the substantive merits of the case, brushing aside sufficient for evaluation of the request; and
peripheral procedural matters which concern the proceedings in Civil
Case No. 99-94684, particularly the propriety of the filing of the 4. Such other documents or information in support of the request.
petition therein, and of the issuance of the TRO of August 17, 1999 by
the trial court. Missdaa (Section 4, Presidential Decree No. 1069.)

To be sure, the issues call for a review of the extradition procedure. Section 5 of the Presidential Decree, which sets forth the duty of the
The RP-US Extradition Treaty which was executed only on November Secretary of Foreign Affairs, pertinently provides:
13, 1994, ushered into force the implementing provisions of
Presidential Decree No. 1069, also called as the Philippine Extradition . . . (1) Unless it appears to the Secretary of Foreign
Law. Section 2(a) thereof defines extradition as "the removal of an Affairs that the request fails to meet the requirements of
accused from the Philippines with the object of placing him at the this law and the relevant treaty or convention, he shall
disposal of foreign authorities to enable the requesting state or forward the request together with the related documents
government to hold him in connection with any criminal investigation to the Secretary of Justice, who shall immediately
directed against him or the execution of a penalty imposed on him designate and authorize an attorney in his office to take
under the penal or criminal law of the requesting state or government." charge of the case.
The portions of the Decree relevant to the instant case which involves
a charged and not convicted individual, are abstracted as follows: The above provision shows only too clearly that the executive
authority given the task of evaluating the sufficiency of the request and
The Extradition Request the supporting documents is the Secretary of Foreign Affairs. What
then is the coverage of this task?
The request is made by the Foreign Diplomat of the Requesting State,
addressed to the Secretary of Foreign Affairs, and shall be In accordance with Paragraphs 2 and 3, Article 7 of the RP-US
accompanied by: Extradition Treaty, the executive authority must ascertain whether or
not the request is supported by:
1. Documents, statements, or other types of information which In this light, Paragraph 3, Article 3 of the Treaty provides that
describe the identity and probable location of the person sought; "[e]xtradition shall not be granted if the executive authority of the
Requested State determines that the request is politically motivated, or
2. A statement of the facts of the offense and the procedural history of that the offense is a military offense which is not punishable under
the case; non-military penal legislation."

3. A statement of the provisions of the law describing the essential The Extradition Petition
elements of the offense for which extradition is requested;
Upon a finding made by the Secretary of Foreign Affairs that the
4. A statement of the provisions of law describing the punishment for extradition request and its supporting documents are sufficient and
the offense; Rtc spped complete in form and substance, he shall deliver the same to the
Secretary of Justice, who shall immediately designate and authorize an
5. A statement of the provisions of the law describing any time limit attorney in his office to take charge of the case (Paragraph [1], Section
on the prosecution or the execution of punishment for the offense; 5, P. D. No. 1069). The lawyer designated shall then file a written
petition with the proper regional trial court of the province or city,
6. Documents, statements, or other types of information specified in with a prayer that the court take the extradition request under
paragraph 3 or paragraph 4 of said Article, as applicable. consideration (Paragraph [2], ibid.). Korte

(Paragraph 2, Article 7, Presidential Decree No. 1069.) The presiding judge of the regional trial court, upon receipt of the
petition for extradition, shall, as soon as practicable, issue an order
7. Such evidence as, according to the law of the Requested State, summoning the prospective extraditee to appear and to answer the
would provide probable cause for his arrest and committal for trial if petition on the day and hour fixed in the order. The judge may issue a
the offense had been committed there; warrant of arrest if it appears that the immediate arrest and temporary
detention of the accused will best serve the ends of justice (Paragraph
8. A copy of the warrant or order of arrest issued by a judge or other [1], Section 6, ibid.), particularly to prevent the flight of the
competent authority; and prospective extraditee.

9. A copy of the charging document. The Extradition Hearing

(Paragraph 3, ibid.) The Extradition Law does not specifically indicate whether the
extradition proceeding is criminal, civil, or a special proceeding.
The executive authority (Secretary of Foreign Affairs) must also see to Nevertheless, Paragraph [1], Section 9 thereof provides that in the
it that the accompanying documents received in support of the request hearing of the extradition petition, the provisions of the Rules of
had been certified by the principal diplomatic or consular officer of the Court, insofar as practicable and not inconsistent with the summary
Requested State resident in the Requesting State (Embassy Note No. nature of the proceedings, shall apply. During the hearing, Section 8 of
052 from U. S. Embassy; Embassy Note No. 951309 from the the Decree provides that the attorney having charge of the case may,
Department of Foreign Affairs). upon application by the Requesting State, represent the latter
throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision received the request, apparently without the Department of Foreign
granting the extradition and giving the reasons therefor upon a Affairs discharging its duty of thoroughly evaluating the same and its
showing of the existence of a prima facie case, or dismiss the petition accompanying documents. The statement of an assistant secretary at
(Section 10, ibid.). Said decision is appealable to the Court of Appeals, the Department of Foreign Affairs that his Department, in this regard,
whose decision shall be final and immediately executory (Section is merely acting as a post office, for which reason he simply forwarded
12, ibid.). The provisions of the Rules of Court governing appeal in the request to the Department of Justice, indicates the magnitude of the
criminal cases in the Court of Appeals shall apply in the error of the Department of Foreign Affairs in taking lightly its
aforementioned appeal, except for the required 15-day period to file responsibilities. Thereafter, the Department of Justice took it upon
brief (Section 13, ibid.). itself to determine the completeness of the documents and to evaluate
the same to find out whether they comply with the requirements laid
The trial court determines whether or not the offense mentioned in the down in the Extradition Law and the RP-US Extradition Treaty.
petition is extraditable based on the application of the dual criminality Petitioner ratiocinates in this connection that although the Department
rule and other conditions mentioned in Article 2 of the RP-US of Justice had no obligation to evaluate the extradition documents, the
Extradition Treaty. The trial court also determines whether or not the Department also had to go over them so as to be able to prepare an
offense for which extradition is requested is a political one (Paragraph extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was
[1], Article 3, RP-US Extradition Treaty). also at this stage where private respondent insisted on the following:
(1) the right to be furnished the request and the supporting papers; (2)
With the foregoing abstract of the extradition proceedings as backdrop, the right to be heard which consists in having a reasonable period of
the following query presents itself: What is the nature of the role of the time to oppose the request, and to present evidence in support of the
Department of Justice at the evaluation stage of the extradition opposition; and (3) that the evaluation proceedings be held in abeyance
proceedings? Sclaw pending the filing of private respondent's opposition to the
request. Kyle
A strict observance of the Extradition Law indicates that the only duty
of the Secretary of Justice is to file the extradition petition after the The two Departments seem to have misread the scope of their duties
request and all the supporting papers are forwarded to him by the and authority, one abdicating its powers and the other enlarging its
Secretary of Foreign Affairs. It is the latter official who is authorized commission. The Department of Foreign Affairs, moreover, has,
to evaluate the extradition papers, to assure their sufficiency, and through the Solicitor General, filed a manifestation that it is adopting
under Paragraph [3], Article 3 of the Treaty, to determine whether or the instant petition as its own, indirectly conveying the message that if
not the request is politically motivated, or that the offense is a military it were to evaluate the extradition request, it would not allow private
offense which is not punishable under non-military penal respondent to participate in the process of evaluation.
legislation. Ipso facto, as expressly provided in Paragraph [1], Section
5 of the Extradition Law, the Secretary of Justice has the ministerial Plainly then, the record cannot support the presumption of regularity
duty of filing the extradition papers. that the Department of Foreign Affairs thoroughly reviewed the
extradition request and supporting documents and that it arrived at a
However, looking at the factual milieu of the case before us, it would well-founded judgment that the request and its annexed documents
appear that there was failure to abide by the provisions of Presidential satisfy the requirements of law. The Secretary of Justice, eminent as he
Decree No. 1069. For while it is true that the extradition request was is in the field of law, could not privately review the papers all by
delivered to the Department of Foreign Affairs on June 17, 1999, the himself. He had to officially constitute a panel of attorneys. How then
following day or less than 24 hours later, the Department of Justice
could the DFA Secretary or his undersecretary, in less than one day, In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court
make the more authoritative determination? had occasion to rule on the functions of an investigatory body with the
sole power of investigation. It does not exercise judicial functions and
The evaluation process, just like the extradition proceedings proper, its power is limited to investigating the facts and making findings in
belongs to a class by itself. It is sui generis. It is not a criminal respect thereto. The Court laid down the test of determining whether
investigation, but it is also erroneous to say that it is purely an exercise an administrative body is exercising judicial functions or merely
of ministerial functions. At such stage, the executive authority has the investigatory functions: Adjudication signifies the exercise of power
power: (a) to make a technical assessment of the completeness and and authority to adjudicate upon the rights and obligations of the
sufficiency of the extradition papers; (b) to outrightly deny the request parties before it. Hence, if the only purpose for investigation is to
if on its face and on the face of the supporting documents the crimes evaluate evidence submitted before it based on the facts and
indicated are not extraditable; and (c) to make a determination whether circumstances presented to it, and if the agency is not authorized to
or not the request is politically motivated, or that the offense is a make a final pronouncement affecting the parties, then there is an
military one which is not punishable under non-military penal absence of judicial discretion and judgment. Mse sm
legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be The above description in Ruperto applies to an administrative body
characterized as an investigative or inquisitorial process in contrast to authorized to evaluate extradition documents. The body has no power
a proceeding conducted in the exercise of an administrative bodys to adjudicate in regard to the rights and obligations of both the
quasi-judicial power. Ex sm Requesting State and the prospective extraditee. Its only power is to
determine whether the papers comply with the requirements of the law
In administrative law, a quasi-judicial proceeding involves: (a) taking and the treaty and, therefore, sufficient to be the basis of an extradition
and evaluation of evidence; (b) determining facts based upon the petition. Such finding is thus merely initial and not final. The body has
evidence presented; and (c) rendering an order or decision supported no power to determine whether or not the extradition should be
by the facts proved (De Leon, Administrative Law: Text and Cases, effected. That is the role of the court. The bodys power is limited to an
1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). initial finding of whether or not the extradition petition can be filed in
Inquisitorial power, which is also known as examining or investigatory court.
power, is one of the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz, It is to be noted, however, that in contrast to ordinary investigations,
Phil. Administrative Law, 1996 ed., p. 26). This power allows the the evaluation procedure is characterized by certain peculiarities.
administrative body to inspect the records and premises, and Primarily, it sets into motion the wheels of the extradition process.
investigate the activities, of persons or entities coming under its Ultimately, it may result in the deprivation of liberty of the prospective
jurisdiction (Ibid., p. 27), or to require disclosure of information by extraditee. This deprivation can be effected at two stages: First, the
means of accounts, records, reports, testimony of witnesses, provisional arrest of the prospective extraditee pending the submission
production of documents, or otherwise (De Leon, op. cit., p. 64). of the request. This is so because the Treaty provides that in case of
urgency, a contracting party may request the provisional arrest of the
The power of investigation consists in gathering, organizing, and person sought pending presentation of the request (Paragraph [1],
analyzing evidence, which is a useful aid or tool in an administrative Article 9, RP-US Extradition Treaty), but he shall be automatically
agencys performance of its rule-making or quasi-judicial functions. discharged after 60 days if no request is submitted (Paragraph 4).
Notably, investigation is indispensable to prosecution. Presidential Decree No. 1069 provides for a shorter period of 20 days
after which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the which could result in his loss of the privilege to practice medicine if
provisions only mean that once a request is forwarded to the found guilty. The Court, citing the earlier case of Cabal vs.
Requested State, the prospective extraditee may be continuously Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of
detained, or if not, subsequently rearrested (Paragraph [5], Article 9, ones license as a medical practitioner, is an even greater deprivation
RP-US Extradition Treaty), for he will only be discharged if no request than forfeiture of property.
is submitted. Practically, the purpose of this detention is to prevent his
possible flight from the Requested State. Second, the temporary arrest Cabal vs. Kapunan (supra) involved an administrative charge of
of the prospective extraditee during the pendency of the extradition unexplained wealth against a respondent which was filed under
petition in court (Section 6, Presidential Decree No. 1069). Republic Act No. 1379, or the Anti-Graft Law. Again, we therein
ruled that since the investigation may result in forfeiture of property,
Clearly, there is an impending threat to a prospective extraditees the administrative proceedings are deemed criminal or penal, and such
liberty as early as during the evaluation stage. It is not only an forfeiture partakes the nature of a penalty. There is also the earlier case
imagined threat to his liberty, but a very imminent one. Sc lex of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing
American jurisprudence, laid down the test to determine whether a
Because of these possible consequences, we conclude that the proceeding is civil or criminal: If the proceeding is under a statute such
evaluation process is akin to an administrative agency conducting an that if an indictment is presented the forfeiture can be included in the
investigative proceeding, the consequences of which are essentially criminal case, such proceeding is criminal in nature, although it may
criminal since such technical assessment sets off or commences the be civil in form; and where it must be gathered from the statute that the
procedure for, and ultimately, the deprivation of liberty of a action is meant to be criminal in its nature, it cannot be considered as
prospective extraditee. As described by petitioner himself, this is a civil. If, however, the proceeding does not involve the conviction of
"tool" for criminal law enforcement (p. 78, Rollo). In essence, the wrongdoer for the offense charged, the proceeding is civil in
therefore, the evaluation process partakes of the nature of a criminal nature. x law
investigation. In a number of cases, we had occasion to make available
to a respondent in an administrative case or investigation certain The cases mentioned above refer to an impending threat of deprivation
constitutional rights that are ordinarily available only in criminal of ones property or property right. No less is this true, but even more
prosecutions. Further, as pointed out by Mr. Justice Mendoza during so in the case before us, involving as it does the possible deprivation of
the oral arguments, there are rights formerly available only at the trial liberty, which, based on the hierarchy of constitutionally protected
stage that had been advanced to an earlier stage in the proceedings, rights, is placed second only to life itself and enjoys precedence over
such as the right to counsel and the right against self-incrimination property, for while forfeited property can be returned or replaced, the
(tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. time spent in incarceration is irretrievable and beyond recompense.
478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384
U.S. 436). By comparison, a favorable action in an extradition request exposes a
person to eventual extradition to a foreign country, thus saliently
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we exhibiting the criminal or penal aspect of the process. In this sense, the
held that the right against self-incrimination under Section 17, Article evaluation procedure is akin to a preliminary investigation since both
III of the 1987 Constitution which is ordinarily available only in procedures may have the same result the arrest and imprisonment of
criminal prosecutions, extends to administrative proceedings which the respondent or the person charged. Similar to the evaluation stage of
possess a criminal or penal aspect, such as an administrative extradition proceedings, a preliminary investigation, which may result
investigation of a licensed physician who is charged with immorality,
in the filing of an information against the respondent, can possibly lead prefer to have the meaning of the due process clause "gradually
to his arrest, and to the deprivation of his liberty. ascertained by the process of inclusion and exclusion in the course of
the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S.
Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 78). Capsulized, it refers to "the embodiment of the sporting idea of
[1992]) (p. 8, Petitioners Memorandum) that the extradition treaty is fair play" (Ermita-Malate Hotel and Motel Owners Association vs.
neither a piece of criminal legislation nor a criminal procedural statute City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain
is not well-taken. Wright is not authority for petitioners conclusion that immutable principles of justice which inhere in the very idea of free
his preliminary processing is not akin to a preliminary investigation. government (Holden vs. Hardy, 169 U.S. 366).
The characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post facto law. It had Due process is comprised of two components substantive due process
nothing to do with the denial of the right to notice, information, and which requires the intrinsic validity of the law in interfering with the
hearing. rights of the person to his life, liberty, or property, and procedural due
process which consists of the two basic rights of notice and hearing, as
As early as 1884, the United States Supreme Court ruled that "any well as the guarantee of being heard by an impartial and competent
legal proceeding enforced by public authority, whether sanctioned by tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
age or custom, or newly devised in the discretion of the legislative
power, in furtherance of the general public good, which regards and True to the mandate of the due process clause, the basic rights of
preserves these principles of liberty and justice, must be held to be due notice and hearing pervade not only in criminal and civil proceedings,
process of law" (Hurtado vs. California, 110 U.S. 516). Compliance but in administrative proceedings as well. Non-observance of these
with due process requirements cannot be deemed non-compliance with rights will invalidate the proceedings. Individuals are entitled to be
treaty commitments. notified of any pending case affecting their interests, and upon notice,
they may claim the right to appear therein and present their side and to
The United States and the Philippines share a mutual concern about refute the position of the opposing parties (Cruz, Phil. Administrative
the suppression and punishment of crime in their respective Law, 1996 ed., p. 64).
jurisdictions. At the same time, both States accord common due
process protection to their respective citizens. Sc In a preliminary investigation which is an administrative investigatory
proceeding, Section 3, Rule 112 of the Rules of Court guarantees the
The due process clauses in the American and Philippine Constitutions respondents basic due process rights, granting him the right to be
are not only worded in exactly identical language and terminology, but furnished a copy of the complaint, the affidavits, and other supporting
more importantly, they are alike in what their respective Supreme documents, and the right to submit counter-affidavits and other
Courts have expounded as the spirit with which the provisions are supporting documents within ten days from receipt thereof. Moreover,
informed and impressed, the elasticity in their interpretation, their the respondent shall have the right to examine all other evidence
dynamic and resilient character which make them capable of meeting submitted by the complainant. Scmis
every modern problem, and their having been designed from earliest
time to the present to meet the exigencies of an undefined and These twin rights may, however, be considered dispensable in certain
expanding future. The requirements of due process are interpreted in instances, such as:
both the United States and the Philippines as not denying to the law
the capacity for progress and improvement. Toward this effect and in 1. In proceedings where there is an urgent need for immediate action,
order to avoid the confines of a legal straitjacket, the courts instead like the summary abatement of a nuisance per se (Article 704, Civil
Code), the preventive suspension of a public servant facing crime or that prosecution has been begun in the demanding state
administrative charges (Section 63, Local Government Code, B. P. before some court or magistrate (35 C.J.S. 406-407). The extradition
Blg. 337), the padlocking of filthy restaurants or theaters showing documents are then filed with the governor of the asylum state, and
obscene movies or like establishments which are immediate threats to must contain such papers and documents prescribed by statute, which
public health and decency, and the cancellation of a passport of a essentially include a copy of the instrument charging the person
person sought for criminal prosecution; demanded with a crime, such as an indictment or an affidavit made
before a magistrate. Statutory requirements with respect to said
2. Where there is tentativeness of administrative action, that is, where charging instrument or papers are mandatory since said papers are
the respondent is not precluded from enjoying the right to notice and necessary in order to confer jurisdiction on the governor of the asylum
hearing at a later time without prejudice to the person affected, such as state to effect the extradition (35 C.J.S. 408-410). A statutory
the summary distraint and levy of the property of a delinquent provision requiring duplicate copies of the indictment, information,
taxpayer, and the replacement of a temporary appointee; and affidavit, or judgment of conviction or sentence and other
instruments accompanying the demand or requisitions be furnished
3. Where the twin rights have previously been offered but the right to and delivered to the fugitive or his attorney is directory. However, the
exercise them had not been claimed. right being such a basic one has been held to be a right mandatory
on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103,
Applying the above principles to the case at bar, the query may be 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
asked: Does the evaluation stage of the extradition proceedings fall 853). Mis spped
under any of the described situations mentioned above?
In international proceedings, extradition treaties generally provide for
Let us take a brief look at the nature of American extradition the presentation to the executive authority of the Requested State of a
proceedings which are quite noteworthy considering that the subject requisition or demand for the return of the alleged offender, and the
treaty involves the U.S. Government. Mis sc designation of the particular officer having authority to act in behalf of
the demanding nation (31A Am Jur 2d 815).
American jurisprudence distinguishes between interstate rendition or
extradition which is based on the Extradition Clause in the U.S. In petitioners memorandum filed on September 15, 1999, he attached
Constitution (Art. IV, 2 cl 2), and international extradition thereto a letter dated September 13, 1999 from the Criminal Division
proceedings. In interstate rendition or extradition, the governor of the of the U.S. Department of Justice, summarizing the U.S. extradition