Republic of the Philippines 4.
The trial court erred in finding the appellant guilty of the crime
SUPREME COURT
Manila
EN BANC
G.R. No. 17584 March 8, 1922
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,
vs.
GREGORIO SANTIAGO, defendant-appellant.
L. Porter Hamilton for appellant.
Acting Attorney-General Tuason for appellee.
ROMUALDEZ, J.:
Having caused the death of Porfirio Parondo, a boy 7 years old, by
striking him with automobile that he was driving, the herein appellant was
prosecuted for the crime of homicide by reckless negligence and was
sentenced to suffer one year and one day of prision correccional, and to
pay the costs of the trial.
Not agreeable with that sentence he now comes to this court alleging that
the court below committed four errors, to wit:
1. The trial court erred in not taking judicial notice of the fact that
the appellant was being prosecuted in conformity with Act No.
2886 of the Philippine Legislature and that the Act is
unconstitutional and gave no jurisdiction in this case.
2. The lower court erred in not dismissing the complaint after the
presentation of the evidence in the case, if not before, for the
reason that said Act No. 2886 is unconstitutional and the
proceedings had in the case under the provisions of the Act
constitute a prosecution of appellant without due process of law.
3. The court a quo erred in not finding that it lacked jurisdiction
over the person of the accused and over the subject- matter of
the complaint.
charged and in sentencing him to one year and one day of prison
correccional and to the payment of costs.
With regard to the questions of fact, we have to say that we have
examined the record and find that the conclusions of the trial judge, as
contained in his well-written decision, are sufficiently sustained by the
evidence submitted.
The accused was driving an automobile at the rate of 30 miles an hour on
a highway 6 meter wide, notwithstanding the fact that he had to pass a
narrow space between a wagon standing on one side of the road and a
heap of stones on the other side where the were two young boys, the
appellant did not take the precaution required by the circumstances by
slowing his machine, and did not proceed with the vigilant care that under
the circumstances an ordinary prudent man would take in order to avoid
possible accidents that might occur, as unfortunately did occur, as his
automobile ran over the boy Porfirio Parondo who was instantly killed as
the result of the accident.
These facts are so well established in the records that there cannot be a
shade of doubt about them.
Coming now to the other assignments of error, it will be seen that they
deal with the fundamental questions as to whether or not Act No. 2886,
under which the complaint in the present case was filed, is valid and
constitutional.
This Act is attacked on account of the amendments that it introduces in
General Orders No. 58, the defense arguing that the Philippine
Legislature was, and is, not authorized to amend General Orders No. 58,
as it did by amending section 2 thereof because its provisions have the
character of constitutional law. Said section 2 provides as follows:
All prosecutions for public offenses shall be in the name of the
United States against the persons charged with the offenses. (G.
O. No. 58, sec. 2 ).
Act No. 2886, which amends it, by virtue of which the People of the
Philippine Island is made the plaintiff in this information, contains the
following provisions in section 1:
1
 SECTION 1. Section two of General Orders, Numbered Fifty-
eight, series of nineteen hundred, is hereby amended to read as
follows:
"SEC. 2. All prosecutions for public offenses shall be in
the name of the People of the Philippine Islands against
the persons charged with the offense."
Let us examine the question.
For practical reasons, the procedure in criminal matters is not
incorporated in the Constitutions of the States, but is left in the hand of
the legislatures, so that it falls within the realm of public statutory law.
As has been said by Chief Justice Marshall:
A constitution, to contain an accurate detail of all the Subdivisions
of which its great powers will admit, and of all the means by which
they may be carried into execution, would partake of a prolixity of
a legal code, and could scarcely be embraced by the human
mind. It would probably never be understood by the public.
(M'Culloch vs. Maryland [1819], 4 Wheat., 316, 407; 4 L. ed.,
579.)
That is why, in pursuance of the Constitution of the United States, each
States, each State has the authority, under its police power, to define and
punish crimes and to lay down the rules of criminal procedure.
The states, as a part of their police power, have a large measure
of discretion in creating and defining criminal offenses. . . .
A Statute relating to criminal procedure is void as a denial of the
equal protection of the laws if it prescribes a different procedure
in the case of persons in like situation. Subject to this limitation,
however, the legislature has large measure of discretion in
prescribing the modes of criminal procedure. . . . (12 C.J., 1185,
1186. See Collins vs. Johnston, 237 U.S., 502; 35 s. Ct. Rep.
649; 59 L. ed., 1071; Shevlin-Carpenter Co. vs. Minnesota, 218
U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn vs. Flancders,
141 Ga., 500; 81 S.E., 205.)
This power of the States of the North American Union was also granted
to its territories such as the Philippines:
The plenary legislative power which Congress possesses over
the territories and possessions of the United States may be
exercised by that body itself, or, as is much more often the case,
it may be delegated to a local agency, such as a legislature, the
organization of which proceeds upon much the same lines as in
the several States or in Congress, which is often taken as a
model, and whose powers are limited by the Organic Act; but
within the scope of such act is has complete authority to legislate,
. . . and in general, to legislate upon all subjects within the police
power of the territory. (38 Cyc., 205-207.)
The powers of the territorial legislatures are derived from
Congress. By act of Congress their power extends "to all rightful
subjects of legislation not inconsistent with the Constitution and
laws of the United States;" and this includes the power to define
and punish crimes. (16 C. J., 62.)
And in the exercise of such powers the military government of the army of
occupation, functioning as a territorial legislature, thought it convenient to
establish new rules of procedure in criminal matters, by the issuance of
General Orders No. 58, the preamble of which reads:
In the interests of justice, and to safeguard the civil liberties of the
inhabitants of these Islands, the criminal code of procedure now
in force therein is hereby amended in certain of its important
provisions, as indicated in the following enumerated sections.
(Emphasis ours.)
Its main purpose is, therefore, limited to criminal procedure and its
intention is to give to its provisions the effect of law in criminal matters.
For that reason it provides in section 1 that:
The following provisions shall have the force and effect of law in
criminal matters in the Philippine Islands from and after the 15th
day of May, 1900, but existing laws on the same subjects shall
remain valid except in so far as hereinafter modified or repealed
expressly or by necessary implication.
2
From what has been said it clearly follows that the provisions of this
General Order do not the nature of constitutional law either by reason of
its character or by reason of the authority that enacted it into law.
It cannot be said that it has acquired this character because this order
was made its own by the Congress of the United States for, as a mater of
fact, this body never adopted it as a law of its own creation either before
the promulgation of Act No. 2886, herein discussed, or, to our knowledge,
to this date.
Since the provisions of this General Order have the character of statutory
law, the power of the Legislature to amend it is self-evident, even if the
question is considered only on principle. Our present Legislature, which
has enacted Act No. 2886, the subject of our inquiry, is the legal
successor to the Military Government as a legislative body.
Since the advent of the American sovereignty in the Philippines the
legislative branch of our government has undergone transformations and
has developed itself until it attained its present form. Firstly, it was the
Military Government of the army of occupation which, in accordance with
international law and practice, was vested with legislative functions and in
fact did legislate; afterwards, complying with the instructions of President
McKinley which later were ratified by Congress (sec. 1 of the Act of July
1, 1902) the legislative powers of the Military Government were
transferred to the Philippine Commission; then, under the provisions of
section 7 of the Act of Congress of July 1, 1902, the Philippine Assembly
was created and it functioned as a colegislative body with the Philippine
Commission. Finally, by virtue of the provisions of sections 12 of the Act
of Congress of August 29, 1916, known as the Jones Law, the Philippine
Commission gave way to the Philippine Senate, the Philippine Assembly
became the House of Representatives, and thus was formed the present
Legislature composed of two Houses which has enacted the aforesaid
Act No. 2886.
As a matter of fact, Act No. 2886 is not the first law that amends General
Orders No. 58. The Philippine Commission, at various times, had
amended it by the enactment of laws among which we may cite Act No.
194, regarding preliminary investigation, Act No. 440 relating to
counsels de oficio and Act No. 590 about preliminary investigations by
justices of the peace of provincial capitals. Later on, and before the
enactment of Act No. 2886, herein controverted, the Legislature had also
amended this General Orders No. 58 by the enactment of Act No. 2677
regarding appeals to the Supreme Court of causes originating in the
justice of the peace courts and by Act No. 2709 which deals with the
exclusion of accused persons from the information in order to be utilized
as state's witnesses.
These amendments repeatedly made by the Philippine Commission as
well as by our present Legislature are perfectly within the scope of the
powers of the said legislative bodies as the successors of the Military
Government that promulgated General Orders No. 58.
No proof is required to demonstrate that the present Legislature had, and
had, the power to enact and amend laws. (U.S. vs. Bull. 15 Phil., 7.) That
it has the power to legislate on criminal matters is very evident from the
wording of section 7 of the Jones Law which says:
That the legislative authority herein provided shall have power,
when not inconsistent with this Act, by due enactment to amend,
alter, modify, or repeal any law, civil or criminal, continued in
force by this Act as it may from time to time see fit.
It is urged the right to prosecute and punish crimes is an attributed of
sovereignty. This assertion is right; but it is also true that by reason of the
principle of territoriality as applied in the supression, of crimes, such
power is delegated to subordinate government subdivisions such as
territories. As we have seen in the beginning, the territorial legislatures
have the power to define and punish crimes, a power also possessed by
the Philippine Legislature by virtue of the provisions of sections 7, already
quoted, of the Jones Law. These territorial governments are local
agencies of the Federal Government, wherein sovereignty resides; and
when the territorial government of the Philippines prosecutes and
punishes public crimes it does so by virtue of the authority delegated to it
by the supreme power of the Nation.
This delegation may be made either expressly as in the case of the
several States of the Union and incorporated territories like Porto Rico
and Hawaii, or tacitly as is the case with the Philippines, which is an
organized territory though not incorporated with the Union. (Malcolm,
Philippine Constitutional Law, 181-205.)
This tacit delegation to our Government needs no demonstration. As a
matter of fact, the crimes committed within our territory, even before
section 2 of General Orders No. 58 was amended, were prosecuted and
punished in this jurisdiction as is done at present; but then as now the
repression of crimes was done, and is still done, under the sovereign
3
authority of the United States, whose name appears as the heading in all
pleadings in criminal causes and in other judicial papers and notarial
acts.
The use of such a heading is prescribed for civil cases in form 1 of
section 784 of the Code of Civil Procedure; in criminal causes the
constant practice followed in this jurisdiction established its use; and in
notarial matters its use is provided by section 127 of Act No. 496. This
long continued practice in criminal matters and the legal provision relating
to civil cases and notarial acts have not been amended by any law, much
less by Act No. 2886, the subject of the present inquiry.
There is not a single constitutional provision applicable to the Philippines
prescribing the name to be used as party plaintiff in criminal cases.
The fact that the political status of this country is as yet undetermined and
in a transitory stage, is, in our opinion, responsible for the fact that there
is no positive provision in our constitutional law regarding the use of the
name of the People of the Philippine Islands, as party plaintiff, in criminal
prosecutions, as is otherwise the case in the respective constitutional
charters of the States of the Union and incorporated territories — a
situation which must not be understood as depriving the Government of
the Philippines of its power, however delegated, to prosecute public
crimes. The fact is undeniable that the present government of the
Philippines, created by the Congress of the United States, is
autonomous.
This autonomy of the Government of the Philippines reaches all judicial
actions, the case at bar being one of them; as an example of such
autonomy, this Government, the same as that of Hawaii and Porto Rico
(People of Porto Rico vs. Rosaly y Castillo [1913], 227 U.S., 270; 57 L.
ed., 507; 33 Sup. Ct. Rep., 352) cannot be sued without its consent.
(Merritt vs. Government of the Philippine Islands, 34 Phil., 311; L. S.
Moon & Co. vs. Harrison, p. 27, ante.) The doctrine, laid down in these
cases, acknowledges the prerogative of personality in the Government of
the Philippines, which, if it is sufficient to shield it from any responsibility
in court in its own name unless it consents thereto, it should be also, as
sufficiently authoritative in law, to give that government the right to
prosecute in court in its own name whomsoever violates within its territory
the penal laws in force therein.
However, limiting ourselves to the question relative to the form of the
complaint in criminal matters, it is within the power of the Legislature to
prescribe the form of the criminal complaint as long as the constitutional
provision of the accused to be informed of the nature of the accusation is
not violated.
Under the Constitution of the United States and by like provisions
in the constitutions of the various states, the accused is entitled to
be informed of the nature and cause of the accusation against
him . . .
It is within the power of the legislatures under such a
constitutional provision to prescribe the form of the indictment or
information, and such form may omit averments regarded as
necessary at common law. (22 Cyc., 285.)
All these considerations a priori are strengthened a posteriori by the
important reason disclosed by the following fact — that the Congress has
tacitly approved Act No. 2886. Both the Act of Congress of July 1, 1902,
section 86, and the Jones Law, last paragraph of section 19, provide that
all the laws enacted by the Government of the Philippines or its
Legislature shall be forwarded to the Congress of the United States,
which body reserves the right and power to annul them. And presuming,
as legally we must, that the provisions of these laws have been complied
with, it is undisputed that the Congress of the United States did not annul
any of those acts already adverted to — Nos. 194, 440, 490 (of the
Philippine Commission), and 2677, 2709 and the one now in question No.
2886 (of the present Legislature) — all of which were amendatory of
General Orders No. 58. The Act now under discussion (No. 2886) took
effect on February 24, 1920, and the criminal complaint in this case was
filed on May 10, 1920. The silence of Congress regarding those laws
amendatory of the said General Order must be considered as an act of
approval.
If Congress fails to notice or take action on any territorial
legislation the reasonable inference is that it approves such act.
(26 R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L.
ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57
[L. ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A.,
315.)
Furthermore, supposing for the sake of argument, that the mention of the
People of the Philippine Islands as plaintiff in the title of the information
constitutes a vice or defect, the same is not fatal when, as in the present
case, it was not objected to in the court below.
4
 An indictment must, in many states under express statutory or
constitutional provision, show by its title or by proper recitals in
the caption or elsewhere that the prosecution is in the name and
by the authority of the state, the commonwealth, or the people of
the state, according to the practice in the particular jurisdictions;
but omissions or defects in this respect may be supplied or cured
by other parts of the records, and the omissions of such a recital
or defects therein, even when required by the constitution or by
statute, is a defect of form within a statute requiring exceptions for
defect of form to be made before trial. (23 Cyc., 237, 238.)
We hold that the provisions of sections 2 of General Orders No. 58, as
amended by Act No. 2886, do not partake of the same character as the
provisions of a constitution; that the said Act No. 2886 is valid and is not
violative of any constitutional provisions and that the court a quo did not
commit any of the errors assigned.
The sentence appealed from is hereby affirmed, the appellant being
furthermore sentenced to the accessory penalties prescribed in article 61
of the Penal Code, and to indemnify the heirs of the deceased in the sum
of P1,000 and to the payment of the costs of both instances. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ., concur.
Ostrand and Johns, JJ., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11676 October 17, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
ANDRES PABLO, defendant-appellant.
Alfonso E. Mendoza for appellant.
Attorney-General Avanceña for appellee.
TORRES, J.:
At about noon of the 21st of October, 1915, Andres Pablo, a policeman of
the municipality of Balanga, went by order of his chief to the barrio of
Tuyo to raid a jueteng game which, according to the information lodged,
was being conducted in that place; but before the said officer arrived
there the players, perhaps advised of his approach by a spy, left and ran
away; however, on his arrival at a vacant lot the defendant there found
Francisco Dato and, at a short distance away, a low table. After a search
of the premises he also found thereon a tambiolo (receptacle) and
37 bolas (balls). Notwithstanding that the officer had seen the men
Maximo Malicsi and Antonio Rodrigo leave the said lot, yet, as at first he
had seen no material proof that the game was being played, he refrained
from arresting them, and on leaving the place only arrested Francisco
Daro, who had remained there.
In reporting to his chief what had occurred, the policeman presented a
memorandum containing the following statement: "In the barrio of Tuyo I
raided a jueteng na bilat game, seized a tambiolo and bolas, and saw
the cabecillas Maximo MAlicsi and Antonio Rodrigo and the gambler
Francisco Dato. I saw the two cabecillas escape."
In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed
a complaint in the court of justice of the peace charging the said Rodrigo,
Malicsi, and Dato with having gambled at jueteng, in violation of
municipal ordinance No. 5. As a result of this complaint the accused were
arrested, but were afterwards admitted to bail.
At the hearing of the case Francisco Dato pleaded guilty. The other two
accused, Maximo Malicsi and Antonio Rodrigo, pleaded not guilty;
therefore, during the trial the chief of police presented the memorandum
exhibited by the policeman Andres Pablo, who testified under oath that
on the date mentioned he and Tomas de Leon went to the said barrio to
raid a jueteng game, but that before they arrived there they saw from afar
that some persons started to run toward the hills; that when witness and
his companion arrived at a vacant lot they saw Francisco Dato and a low
table there, and the table caused them to suspect that a jueteng game
was being carried on; that in fact they did find on one side of the lot
a tambiolo and 37 bolas, but that they did not see the accused Rodrigo
and Malicsi on the said lot, nor did they see them run; and that only
afterwards did the witness learn that these latter were the cabecillas or
ringleaders in the jueteng game, from information given him by an
unknown person. In view of this testimony by the police officer who made
5
the arrest and of the other evidence adduced at the trial the court
acquitted the defendants Antonio Rodrigo and Maximo Malicsi and
sentenced only Francisco Dato, as a gambler.
Before the case came to trial in the justice of the peace court the
policeman Andres Pablo had an interview and conference with the
accused Malicsi and ROdrigo in the house of Valentin Sioson. On this
occasion he was instructed not to testify against Malicsi and Rodrigo, and
in fact received through Gregorio Ganzon the sum of P5.
By reason of the foregoing and after making a preliminary investigation
the provincial fiscal, on December 1, 1915, filed an information in the
Court of First Instance of Bataan charging Andres Pablo with the crime of
perjury, under the provisions of section 3 of Act No. 1697. The following
is an extract from the complaint:
That on or about November 6, 1915, in the municipality of
Balanga, Bataan, P.I., and within the jurisdiction of this court, the
said accused, Andres Pablo, during the hearing in the justice of
the peace court of Balanga of the criminal cause No. 787, entitled
the United States vs. Antonio Rodrigo and Maximo Malicsi, for
violation of Municipal Ordinance No. 5 of the municipality of
Balanga, did, willfully, unlawfully and feloniously affirm and swear
in legal form before the justice of the peace court as follow: `We
did not there overtake the accused Antonio Rodrigo and Maximo
Malicsi, nor did we even see them run,' the said statement being
utterly false, as the accused well knew that it was, and material to
the decision of the said criminal cause No. 787, United States vs.
Antonio Rodrigo and Maximo Malicsi. An act committed with
violation of law.
The case came to trial and on December 28, 1915, the court rendered
judgment therein sentencing the defendant to the penalty of two years'
imprisonment, to pay a fine of P100 and, in case of insolvency, to the
corresponding subsidiary imprisonment, and to pay the costs. The
defendant was also disqualified from thereafter holding any public office
and from testifying in the courts of the Philippine Islands until the said
disqualification should be removed. From this judgment he appealed.
Francisco Dato, on testifying as a witness, said that when the policemen
Andres Pablo and Tomas de Leon arrived at the place where
the jueteng was being played, they found the defendant gamblers, Malicsi
and Rodrigo; that, prior to the hearing of the case in the justice of the
peace court, Malicsi and Rodrigo ordered him to call Andres Pablo, who,
together with witness, went to the house of Valentin Sioson, where they
held a conference; that witness pleaded guilty in the justice of the peace
court, in fulfillment of his part of an agreement made between himself and
his two coaccused, Malicsi and Rodrigo, who promised him that they
would support his family during the time he might be a prisoner in jail; that
Andres Pablo did not know that they were gamblers, because he did not
find them in the place where the game was in progress, but that when
witness was being taken to the municipal building by the policemen he
told them who the gamblers were who had run away and whom Andres
Pablo could have seen.
Maximo Malicsi corroborated the foregoing testimony and further stated
that, on the arrival of the policemen who made the arrest and while they
were looking for the tambiolo, he succeeded in escaping; that Andres
Pablo had known him for a long time and could have arrested him had he
wished to do so; that prior to the hearing he and his codefendants,
ROdrigo and Dato, did in fact meet in the house of Valentin Sioson, on
which occasion they agreed that they would give the policemen Andres
Pablo P20, provided witness and Rodrigo were excluded from the
charge; and that only P15 was delivered to the said Pablo, through
Gregorio Ganzon. This statement was corroborated by the latter, though
he said nothing about what amount of money he delivered to the
policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked
by the justice of the peace how he could have seen Maximo Malicsi and
Antonio Rodrigo, he replied that he did not see them at the place where
the game was being conducted nor did he see them run away from there,
for he only found the table, the tambiolo, the bolas, and Francisco Dato;
that he did not surprise the game because the players ran away before
he arrived on the lot where, after fifteen minutes' search, he found only
the tambiolo and the bolas; that on arriving at the place where the game
was played, they found only Francisco Dato and some women in the
Street, and as Dato had already gone away, witness' companion, the
policeman Tomas de Leon, got on his bicycle and went after him; and
that he found the tambiolo at a distance of about 6 meters from a low
table standing on the lot.
From the facts above related, it is concluded that the defendant Andres
Pablo, who pleaded not guilty, falsely testified under oath in the justice of
the peace court of Balanga, Bataan, in saying he had not seen the
alleged gamblers Maximo Malicsi and Antonio Rodrigo in the place
6
where, according to the complaint filed, the game of jueteng was being
played and where the defendant and his companion, the policeman
Tomas de Leon, had found a table, tambiolo and bolas, used in the game
of jueteng, while it was proved at the trial that he did not them and did
overtake them while they were still in the place where the game was
being played. But notwithstanding his having seen them there, upon
testifying in the cause prosecuted against these men and another for
gambling, he stated that he had not seen them there, knowing that he
was not telling the truth and was false to the oath he had taken, and he
did so willfully and deliberately on account of his agreement with the men,
Malicsi and Rodrigo, and in consideration of a bribe of P15 which he had
received in payment for his false testimony he afterwards gave.
Francisco Dato and Gregorio Ganzon corroborated the assertion that the
policeman Andres Pablo undertook to exclude the gamblers, Malicsi and
Rodrigo, from the charge and from his testimony in consideration for P15
which he received through Gregorio Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards
convicted under Act No. 1697, which (according to the principle laid down
by this court in various decisions that are already well-settled rules of law)
repealed the provisions contained in articles 318 to 324 of the Penal
Code relative to false testimony.
By the second paragraph of the final section of the last article of the
Administrative Code, or Act No. 2657, there was repealed, among the
other statutes therein mentioned, the said Act No. 1697 relating to
perjury, and the repealing clause of the said Administrative Code does
not say under what other penal law in force the crime of false testimony,
at least, if not that of perjury, shall be punished.
Under these circumstances, may the crime of perjury or of false
testimony go unpunished, and is there no penal sanction whatever in this
country for this crime? May the truth be freely perverted in testimony
given under oath and which, for the very reason that it may save a guilty
person from punishment, may also result in the conviction and
punishment of an innocent person? If all this is not possible and is not
right before the law and good morals in a society of even mediocre
culture, it must be acknowledged that it is imperatively necessary to
punish the crime of perjury or of false testimony — a crime which can
produce incalculable and far-reaching harm to society and cause infinite
disturbance of social order.
The right of prosecution and punishment for a crime is one of the
attributes that by a natural law belongs to the sovereign power
instinctively charged by the common will of the members of society to
look after, guard and defend the interests of the community, the individual
and social rights and the liberties of every citizen and the guaranty of the
exercise of his rights.
The power to punish evildoers has never been attacked or challenged, as
the necessity for its existence has been recognized even by the most
backward peoples. At times the criticism has been made that certain
penalties are cruel, barbarous, and atrocious; at other, that they are light
and inadequate to the nature and gravity of the offense, but the
imposition of punishment is admitted to be just by the whole human race,
and even barbarians and savages themselves, who are ignorant of all
civilization, are no exception.
lawphil.net
Notwithstanding that the said Act No. 1697 (which, as interpreted by this
court in its decisions, was deemed to have repealed the aforementioned
article of the Penal Code relating to false testimony, comprised within the
term of perjury) did not expressly repeal the said articles of the Penal
Code; and as the said final article of the Administrative Code, in totally
repealing Act No. 1697, does not explicitly provide that the mentioned
articles of the Penal Code are also repealed, the will of the legislation not
being expressly and clearly stated with respect to the complete or partial
repeal of the said articles of the Penal Code, in the manner that it has
totally repealed the said Act No. 1697 relating its perjury; and,
furthermore, as it is imperative that society punish those of its members
who are guilty of perjury or false testimony, and it cannot be conceived
that these crimes should go unpunished or be freely committed without
punishment of any kind, it must be conceded that there must be in this
country some prior, preexistent law that punishes perjury or false
testimony.
There certainly are laws which deal with perjury or false testimony, like
Law 7 et seq. of Title 2, third Partida.
However, since the Penal Code went into force, the crime of false
testimony has been punished under the said articles of the said Code,
which as we have already said, have not been specifically repealed by
the said Act No. 1697, but since its enactment, have not been applied, by
the mere interpretation given to them by this court in its decisions; yet,
from the moment that Act was repealed by the Administrative Code, the
needs of society have made it necessary that the said articles 318 to 324
7
should be deemed to be in force, inasmuch as the Administrative Code,
in repealing the said Act relating to perjury, has not explicitly provided
that the said articles of the Penal Code have likewise been repealed.
This manner of understanding and construing the statutes applicable to
the crime of false testimony or perjury is in harmony with the provision of
Law 11, Title 2, Book 3, of the Novisima Recopilacion which says::
All the laws of the kingdom, not expressly repealed by other
subsequent laws, must be literally obeyed and the excuse that
they are not in use cannot avail; for the Catholic kings and their
successors so ordered in numerous laws, and so also have I
ordered on different occasions, and even though they were
repealed, it is seen that they have been revived by the decree
which I issued in conformity with them although they were not
expressly designated. The council will be informed thereof and
will take account of the importance of the matter.
It is, then, assumed that the said articles of the Penal Code are in force
and are properly applicable to crimes of false testimony. Therefore, in
consideration of the fact that in the case at bar the evidence shows it to
have been duly proven that the defendant, Andres Pablo, in testifying in
the cause prosecuted for gambling at jueteng, perverted the truth, for the
purpose of favoring the alleged gamblers, Maximo Malicsi and Antonio
Rodrigo, with the aggravating circumstance of the crime being committed
through bribery, for it was also proved that the defendant Pablo received
P15 in order that he should make no mention of the said two gamblers in
his sworn testimony, whereby he knowingly perverted the truth, we hold
that, in the commission of the crime of false testimony, there concurred
the aggravating circumstance of price or reward, No. 3 of article 10 of the
Code, with no mitigating circumstance to offset the effects of the said
aggravating one; wherefore the defendant has incurred the maximum
period of the penalty of arresto mayor in its maximum degree to prision
correccional in its medium degree, and a fine.
For the foregoing reasons, we hereby reverse the judgment appealed
from and sentence Andres Pablo to the penalty of two years four months
and one day of prision correccional, to pay a fine of 1,000 pesetas, and,
in case of insolvency, to suffer the corresponding subsidiary
imprisonment, which shall not exceed one-third of the principal penalty.
He shall also pay the costs of both instances. So ordered.
Johnson, Carson, Trent and Araullo, JJ., concur.
Moreland, J., concurs in the result .
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 96132 June 26, 1992
ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
PARAS, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of
Court, from the decision* of the respondent Court of Appeals which
affirmed in toto the decision of the Regional Trial Court of Quezon City,
Branch 104 finding the accused petitioner, guilty of violations of Batas
Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696 before they
were elevated on appeal to the respondent appellate Court under CA-
G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the
offense charged, have been clearly illustrated, in the Comment of the
Office of the Solicitor General as official counsel for the public
respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in
April 1983, but a did not have complete equipment that could make his
venture workable. He also had another problem, and that while he was
going into this entrepreneurship, he lacked funds with which to purchase
the necessary equipment to make such business operational. Thus,
8
petitioner, representing Ultra Sources International Corporation,
approached Corazon Teng, (private complainant) Vice President of
Mancor Industries (hereinafter referred to as Mancor) for his needed car
repair service equipment of which Mancor was a distributor, (Rollo, pp.
40-41)
Having been approached by petitioner on his predicament, who fully
bared that he had no sufficient funds to buy the equipment needed, the
former (Corazon Teng) referred Magno to LS Finance and Management
Corporation (LB Finance for brevity) advising its Vice-President, Joey
Gomez, that Mancor was willing and able to supply the pieces of
equipment needed if LS Finance could accommodate petitioner and
provide him credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up
a warranty deposit equivalent to thirtyper centum (30%) of the total value
of the pieces of equipment to be purchased, amounting to P29,790.00.
Since petitioner could not come up with such amount, he requested Joey
Gomez on a personal level to look for a third party who could lend him
the equivalent amount of the warranty deposit, however, unknown to
petitioner, it was Corazon Teng who advanced the deposit in question, on
condition that the same would be paid as a short term loan at 3% interest
(Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of
each item of Equipment, the Lessee shall deposit with the
Lessor such sum or sums specified in Schedule A to
serve as security for the faithful performance of its
obligations.
This deposit shall be refunded to the Lessee upon the
satisfactory completion of the entire period of Lease,
subject to the conditions of clause 1.12 of this Article.
(Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a
leasing agreement whereby LS Finance would lease the garage
equipments and petitioner would pay the corresponding rent with the
option to buy the same. After the documentation was completed, the
equipment were delivered to petitioner who in turn issued a postdated
check and gave it to Joey Gomez who, unknown to the petitioner,
delivered the same to Corazon Teng. When the check matured,
Petitioner requested through Joey Gomez not to deposit the check as he
(Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6)
postdated checks. Two (2) checks dated July 29, 1983 were deposited
and cleared while the four (4) others, which were the subject of the four
counts of the aforestated charges subject of the petition, were held
momentarily by Corazon Teng, on the request of Magno as they were not
covered with sufficient funds. These checks were a) Piso Bank Check
Nos. 006858, dated August 15, 1983, 006859 dated August 28, 1983 and
006860 dated September 15, 1983, all in the amount of P5,038.43 and
No. 006861 dated September 28, 1983, in the amount of P10,076.87.
(Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals,
thus it pulled out the garage equipments. It was then on this occasion that
petitioner became aware that Corazon Teng was the one who advanced
the warranty deposit. Petitioner with his wife went to see Corazon Teng
and promised to pay the latter but the payment never came and when the
four (4) checks were deposited they were returned for the reason
"account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch
104, the accused-petitioner was convicted for violations of BP Blg. 22 on
the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond
reasonable doubt of the offense of violations of B.P. Blg.
22 and sentencing the accused to imprisonment for one
year in each Criminal Case Nos. Q-35693, Q-35695 and
Q-35696 and to pay to complainant the respective
amounts reflected in subject checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of
the court a quo, this Court is intrigued about the outcome of the checks
subject of the cases which were intended by the parties, the petitioner on
the one hand and the private complainant on the other, to cover the
"warranty deposit" equivalent to the 30% requirement of the financing
company. Corazon Teng is one of the officers of Mancor, the supplier of
the equipment subject of the Leasing Agreement subject of the high
financing scheme undertaken by the petitioner as lessee of the repair
9
service equipment, which was arranged at the instance of Mrs. Teng from
the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00
corresponding to 30% of the "purchase/lease" value of the equipments
subject of the transaction, it is obvious that the "cash out" made by Mrs.
Teng was not used by petitioner who was just paying rentals for the
equipment. It would have been different if petitioner opted to purchase
the pieces of equipment on or about the termination of the lease-
purchase agreement in which case he had to pay the additional amount
of the warranty deposit which should have formed part of the purchase
price. As the transaction did not ripen into a purchase, but remained a
lease with rentals being paid for the loaned equipment, which were pulled
out by the Lessor (Mancor) when the petitioner failed to continue paying
possibly due to economic constraints or business failure, then it is lawful
and just that the warranty deposit should not be charged against the
petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he
did not withdraw as it was not his own account, it having remained with
LS Finance, is to even make him pay an unjust "debt", to say the least,
since petitioner did not receive the amount in question. All the while, said
amount was in the safekeeping of the financing company, which is
managed, supervised and operated by the corporation officials and
employees of LS Finance. Petitioner did not even know that the checks
he issued were turned over by Joey Gomez to Mrs. Teng, whose
operation was kept from his knowledge on her instruction. This fact alone
evoke suspicion that the transaction is irregular and immoral per se,
hence, she specifically requested Gomez not to divulge the source of the
"warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know
that it was she who "accommodated" petitioner's request for Joey
Gomez, to source out the needed funds for the "warranty deposit". Thus it
unfolds the kind of transaction that is shrouded with mystery, gimmickry
and doubtful legality. It is in simple language, a scheme whereby Mrs.
Teng as the supplier of the equipment in the name of her corporation,
Mancor, would be able to "sell or lease" its goods as in this case, and at
the same time, privately financing those who desperately need petty
accommodations as this one. This modus operandi has in so many
instances victimized unsuspecting businessmen, who likewise need
protection from the law, by availing of the deceptively called "warranty
deposit" not realizing that they also fall prey to leasing equipment under
the guise of a lease-purchase agreement when it is a scheme designed
to skim off business clients.
This maneuvering has serious implications especially with respect to the
threat of the penal sanction of the law in issue, as in this case. And, with
a willing court system to apply the full harshness of the special law in
question, using the "mala prohibitia" doctrine, the noble objective of the
law is tainted with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee
referred to above in the lease agreement knew that the amount of
P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even
attempt to secure the refund of said amount from LS Finance,
notwithstanding the agreement provision to the contrary. To argue that
after the termination of the lease agreement, the warranty deposit should
be refundable in full to Mrs. Teng by petitioner when he did not cash out
the "warranty deposit" for his official or personal use, is to stretch the
nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the
interest of the banking system and the legitimate public checking account
user. It did not intend to shelter or favor nor encourage users of the
system to enrich themselves through manipulations and circumvention of
the noble purpose and objective of the law. Least should it be used also
as a means of jeopardizing honest-to-goodness transactions with some
color of "get-rich" scheme to the prejudice of well-meaning businessmen
who are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms
that the primary function of punishment is the protective (sic) of
society against actual and potential wrongdoers." It is not clear whether
petitioner could be considered as having actually committed the wrong
sought to be punished in the offense charged, but on the other hand, it
can be safely said that the actuations of Mrs. Carolina Teng amount to
that of potential wrongdoers whose operations should also be clipped at
some point in time in order that the unwary public will not be failing prey
to such a vicious transaction (Aquino, The Revised Penal Code, 1987
Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal
law is founded upon that moral disapprobation . . . of actions which are
immoral, i.e., which are detrimental (or dangerous) to those conditions
10
upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally
founded and built upon a certain concurrence in the moral opinions of all.
. . . That which we call punishment is only an external means of
emphasizing moral disapprobation the method of punishment is in reality
the amount of punishment," (Ibid., P. 11, citing People v. Roldan
Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People v.
Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment
imposed upon the accused, the objective of retribution of a wronged
society, should be directed against the "actual and potential wrongdoers."
In the instant case, there is no doubt that petitioner's four (4) checks were
used to collateralize an accommodation, and not to cover the receipt of
an actual "account or credit for value" as this was absent, and therefore
petitioner should not be punished for mere issuance of the checks in
question. Following the aforecited theory, in petitioner's stead the
"potential wrongdoer", whose operation could be a menace to society,
should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of
the accused, however, by the open admission of the appellate court
below, oven when the ultimate beneficiary of the "warranty deposit" is of
doubtful certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the
obligation of the accused to complainant had been
extinguished by the termination of the leasing agreement
— by the terms of which the warranty deposit advanced
by complainant was refundable to the accused as lessee
— and that as the lessor L.S. Finance neither made any
liquidation of said amount nor returned the same to the
accused, it may he assumed that the amount was already
returned to the complainant. For these allegations, even if
true, do not change the fact, admitted by appellant and
established by the evidence, that the four checks were
originally issued on account or for value. And as We have
already observed, in order that there may be a conviction
under the from paragraph of Section 2 of B.P. Blg 22 —
with respect to the element of said offense that the check
should have been made and issued on account or for
value — it is sufficient, all the other elements of the
offense being present, that the check must have been
drawn and issued in payment of an obligation.
Moreover, even granting, arguendo, that the
extinguishment, after the issuance of the checks, of the
obligation in consideration of which the checks were
issued, would have resulted in placing the case at bar
beyond the purview of the prohibition in Section 1 of BP
Blg. 22, there is no satisfactory proof that there was such
an extinguishment in the present case. Appellee aptly
points out that appellant had not adduced any direct
evidence to prove that the amount advanced by the
complainant to cover the warranty deposit must already
have been returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even disregarded
the cardinal rule that the accused is presumed innocent until proven guilty
beyond reasonable doubt. On the contrary, the same court even
expected the petitioner-appellant to adduce evidence to show that he was
not guilty of the crime charged. But how can be produce documents
showing that the warranty deposit has already been taken back by Mrs.
Teng when she is an officer of Mancor which has interest in the
transaction, besides being personally interested in the profit of her side-
line. Thus, even if she may have gotten back the value of the
accommodation, she would still pursue collecting from the petitioner since
she had in her possession the checks that "bounced".
That the court a quo merely relied on the law, without looking into the real
nature of the warranty deposit is evident from the following
pronouncement:
And the trail court concluded that there is no question that
the accused violated BP Blg. 22, which is a special
statutory law, violations of which are mala prohibita. The
court relied on the rule that in cases of mala prohibita, the
only inquiry is whether or not the law had been violated,
proof of criminal intent not being necessary for the
conviction of the accused, the acts being prohibited for
reasons of public policy and the defenses of good faith
and absence of criminal intent being unavailing in
prosecutions for said offenses." (Ibid., p. 26)
11
The crux of the matter rests upon the reason for the drawing of the
postdated checks by the petitioner, i.e.,whether they were drawn or
issued "to apply on account or for value", as required under Section 1 of
B.P. Blg, 22. When viewed against the following definitions of the catch-
terms "warranty" and "deposit", for which the postdated checks were
issued or drawn, all the more, the alleged crime could not have been
committed by petitioner:
a) Warranty — A promise that a proposition of fact is true.
A promise that certain facts are truly as they are
represented to be and that they will remain so: . . .
(Black's Law Dictionary, Fifth Edition, (1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose: —
Where the seller at the time of contracting has reason to
know any particular purpose for which the goods are
required and that the buyer is relying on the seller's skill
or judgment to select or furnish suitable goods, there is,
unless excluded or modified, an implied warranty that the
goods shall be fit for such purpose, (Ibid., p. 573)
b) Deposit: — Money lodged with a person as an earnest
or security for the performance of some contract, to be
forfeited if the depositor fails in his undertaking. It may be
deemed to be part payment and to that extent may
constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To
lodge for safe- keeping or as a pledge to intrust to the
care of another.
The act of placing money in the custody of a bank or
banker, for safety or convenience, to be withdrawn at the
will of the depositor or under rules and regulations agreed
on. Also, the money so deposited, or the credit which the
depositor receives for it. Deposit, according to its
commonly accepted and generally understood among
bankers and by the public, includes not only deposits
payable on demand and for which certificates, whether
interest-bearing or not, may be issued, payable on
demand, or on certain notice or at a fixed future time.
(Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that he does
not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or
credit or would have been dishonored for the same reason . . . is
inversely applied in this case. From the very beginning, petitioner never
hid the fact that he did not have the funds with which to put up the
warranty deposit and as a matter of fact, he openly intimated this to the
vital conduit of the transaction, Joey Gomez, to whom petitioner was
introduced by Mrs. Teng. It would have been different if this predicament
was not communicated to all the parties he dealt with regarding the lease
agreement the financing of which was covered by L.S. Finance
Management.
WHEREFORE, the appealed decision is REVERSED and the accused-
petitioner is hereby ACQUITTED of the crime charged.
SO ORDERED.
Padilla and Regalado, JJ., concur.
Narvasa, C.J.,, concurs in the result.
Nocon, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 167011 April 30, 2008
SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R.
ROMUALDEZ, petitioners,
vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.
12
 DECISION
CHICO-NAZARIO, J.:
This treats of the Petition for Review on Certiorari with a prayer for the
issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction filed by petitioners Spouses Carlos S. Romualdez and Erlinda
R. Romualdez seeking to annul and set aside the Resolutions, dated 11
June 20041 and 27 January 20052 of the Commission on Elections
(COMELEC) in E.O. Case No. 2000-36. In the Resolution of 11 June
2004, the COMELEC En Banc directed the Law Department to file the
appropriate Information with the proper court against petitioners Carlos S.
Romualdez and Erlinda Romualdez for violation of Section 10(g) and
(j)3 in relation to Section 45(j)4 of Republic Act No. 8189, otherwise known
as The Voter’s Registration Act of 1996.5 Petitioners’ Motion for
Reconsideration thereon was denied.
The factual antecedents leading to the instant Petition are presented
hereunder:
On 12 July 2000, private respondent Dennis Garay, along with Angelino
Apostol6 filed a Complaint-Affidavit7 with the COMELEC thru the Office of
the Election Officer in Burauen, Leyte, charging petitioners with violation
of Section 261(y)(2)8 and Section 261(y)(5)9 of the Omnibus Election
Code, similarly referred to as Batas Pambansa Blg. 881; and Section
1210 of Republic Act No. 8189.
Private respondent deposed, inter alia, that: petitioners are of legal ages
and residents of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan
ng Crame, Quezon City; on 9 May 2000 and 11 May 2000, petitioners
Carlos S. Romualdez and Erlinda R. Romualdez, applied for registration
as new voters with the Office of the Election Officer of Burauen, Leyte, as
evidenced by Voter Registration Record Nos. 42454095 and 07902952,
respectively; in their sworn applications, petitioners made false and
untruthful representations in violation of Section 1011 of Republic Act Nos.
8189, by indicating therein that they are residents of 935 San Jose Street,
Burauen, Leyte, when in truth and in fact, they were and still are residents
of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame,
Quezon City, and registered voters of Barangay Bagong Lipunan ng
Crame, District IV, Quezon City, Precinct No. 4419-A, as evidenced by
Voter Registration Record Nos. 26195824 and 26195823; and that
petitioners, knowing fully well said truth, intentionally and willfully, did not
fill the blank spaces in said applications corresponding to the length of
time which they have resided in Burauen, Leyte. In fine, private
respondent charged petitioners, to wit:
Respondent-spouses, Carlos Sison Romualdez and Erlinda
Reyes Romualdez committed and consummated election
offenses in violation of our election laws, specifically, Sec. 261,
paragraph (y), subparagraph (2), for knowingly making any false
or untruthful statements relative to any data or information
required in the application for registration, and of Sec. 261,
paragraph (y), subparagraph (5), committed by any person who,
being a registered voter, registers anew without filing an
application for cancellation of his previous registration, both of the
Omnibus Election Code (BP Blg. 881), and of Sec. 12, RA 8189
(Voter Registration Act) for failure to apply for transfer of
registration records due to change of residence to another city or
municipality."12
The Complaint-Affidavit contained a prayer that a preliminary
investigation be conducted by the COMELEC, and if the evidence so
warrants, the corresponding Information against petitioners be filed
before the Regional Trial Court (RTC) for the prosecution of the same.
Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss13 dated 2
April 2001. They contended therein that they did not make any false or
untruthful statements in their application for registration. They avowed
that they intended to reside in Burauen, Leyte, since the year 1989. On 9
May 2000, they took actual residence in Burauen, Leyte, by leasing for
five (5) years, the house of Juanito and Fe Renomeron at No. 935, San
Jose Street in Burauen, Leyte. On even date, the Barangay District III
Council of Burauen passed a Resolution of Welcome, expressing therein
its gratitude and appreciation to petitioner Carlos S. Romualdez for
choosing the Barangay as his official residence.14
On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal,
COMELEC Investigating Officer, issued a Resolution, recommending to
the COMELEC Law Department (Investigation and Prosecution Division),
the filing of the appropriate Information against petitioners, disposing,
thus:
PREMISES CONSIDERED, the Law Department (Investigation
and Prosecution Division), RECOMMENDS to file the necessary
information against Carlos Sison Romualdez before the proper
Regional Trial Court for violation of Section 10 (g) and (j) in
13
 relation to Section 45 (j) of Republic Act 8189 and to authorize
the Director IV of the Law Department to designate a Comelec
Prosecutor to handle the prosecution of the case with the duty to
submit periodic report after every hearing of the case.15
On 11 June 2004, the COMELEC En Banc found no reason to depart
from the recommendatory Resolution of 28 November 2003, and
ordered, viz:
WHEREFORE, premises considered, the Law Department is
hereby directed to file the appropriate information with the proper
court against respondents CARLOS S. ROMUALDEZ AND
ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in
relation to Section 45 (j) of the Republic Act No. 8189.16
Petitioners filed a Motion for Reconsideration thereon.
Acting on the Motion, the COMELEC found no cogent reason to disturb
the assailed En Banc Resolution of 11 June 2004,17 rationalizing, thus:
However, perusal of the records reveal (sic) that the arguments
and issues raised in the Motion for Reconsideration are merely a
rehash of the arguments advanced by the Respondents in [their]
Memorandum received by the Law Department on 17 April 2001,
the same [w]as already considered by the Investigating Officer
and was discussed in her recommendation which eventually was
made as the basis for the En Banc’s resolution.
As aptly observed by the Investigating Officer, the filing of request
for the cancellation and transfer of Voting Registration Record
does not automatically cancel the registration records. The fact
remains that at the time of application for registration as new
voter of the herein Respondents on May 9 and 11, 2001 in the
Office of Election Officer of Burauen, Leyte their registration in
Barangay 4419-A, Barangay Bagong Lipunan ng Crame Quezon
City was still valid and subsisting.18
On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of
the COMELEC filed with the RTC, Burauen, Leyte, separate Informations
against petitioner Carlos S. Romualdez19 for violation of Section 10(g), in
relation to Section 45(j) of Republic Act No. 8189, and against petitioner
Erlinda R. Romualdez20 for violation of Section 10(g), in relation to
Section 45(j) of Republic Act No. 8189, subsequently docketed as Crim.
Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-4183,
respectively. Moreover, separate Informations for violation of Section
10(j), in relation to Section 45(j) of Republic Act No. 8189 were filed
against petitioners.21
Hence, petitioners come to us via the instant Petition, submitting the
following arguments:
I
RESPONDENT COMMISSION ON ELECTIONS GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OF OR IN
EXCESS OF ITS JURISDICTION; and
II
COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT
PREMISED ITS RESOLUTION ON A MISAPPREHENSION OF
FACTS AND FAILED TO CONSIDER CERTAIN RELEVANT
FACTS THAT WOULD JUSTIFY A DIFFERENT
CONCLUSION.22
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance
of Writ of Preliminary Injunction and to Cite for Indirect
Contempt,23 alleging that two separate Informations, both dated 12
January 2006, were filed with the RTC by the COMELEC against
petitioner Carlos S. Romualdez for violation of Section 10(j), in relation to
Section 45(j) of Republic Act No. 8189, in Criminal Case No. BN-06-03-
9184; and for violation of Section 10(g), in relation to Section 45(j) of
Republic Act No. 8189, in Criminal Case No. BN-06-03-9185. Similarly,
the Motion alleged that the COMELEC filed with the RTC, two separate
Informations, both dated 12 January 2006, against petitioner Erlinda R.
Romualdez, charging her with the same offenses as those charged
against petitioner Carlos S. Romualdez, and thereafter, docketed as
Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.
On 20 June 2006, this Court issued a Resolution24 denying for lack of
merit petitioners’ Motion Reiterating Prayer for Issuance of Writ of
Preliminary Injunction and to Cite for Indirect Contempt.
We shall now resolve, in seriatim, the arguments raised by petitioners.
14
Petitioners contend that the election offenses for which they are charged (g) Periods of residence in the Philippines and in the place of
by private respondent are entirely different from those which they stand to registration;
be accused of before the RTC by the COMELEC. According to
petitioners, private respondent’s complaint charged them for allegedly xxxx
violating, to wit: 1) Section 261(y)(2) and Section 261(y)(5) of the
Omnibus Election Code, and 2) Section 12 of the Voter’s Registration (j) A statement that the application is not a registered voter of any
Act; however, the COMELEC En Banc directed in the assailed precinct;
Resolutions, that they be charged for violations of Section 10(g) and (j), in
relation to Section 45(j) of the Voter’s Registration Act. Essentially,
The application for registration shall contain three (3) specimen
petitioners are of the view that they were not accorded due process of
signatures of the applicant, clear and legible rolled prints of his
law. Specifically, their right to refute or submit documentary evidence
left and right thumbprints, with four identification size copies of his
against the new charges which COMELEC ordered to be filed against
latest photograph, attached thereto, to be taken at the expense of
them. Moreover, petitioners insist that Section 45(j) of the Voter’s
the Commission.
Registration Act is vague as it does not refer to a definite provision of the
law, the violation of which would constitute an election offense; hence, it
runs contrary to Section 14(1)25 and Section 14(2),26 Article III of the 1987 Before the applicant accomplishes his application for registration,
Constitution. the Election Officer shall inform him of the qualifications and
disqualifications prescribed by law for a voter, and thereafter, see
to it that the accomplished application contains all the data
We are not persuaded.
therein required and that the applicant’s specimen signatures,
fingerprints, and photographs are properly affixed in all copies of
First. The Complaint-Affidavit filed by private respondent with the the voter’s application.
COMELEC is couched in a language which embraces the allegations
necessary to support the charge for violation of Section 10(g) and (j), in
Moreover, Section 45(j) of the same Act, recites, thus:
relation to Section 45(j) of Republic Act No. 8189.
SEC. 45. Election Offense. – The following shall be considered
A reading of the relevant laws is in order, thus:
election offenses under this Act:
Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as
xxxx
follows:
(j) Violation of any of the provisions of this Act.
SEC. 10 – Registration of Voters. - A qualified voter shall be
registered in the permanent list of voters in a precinct of the city
or municipality wherein he resides to be able to vote in any Significantly, the allegations in the Complaint-Affidavit which was filed
election. To register as a voter, he shall personally accomplish an with the Law Department of the COMELEC, support the charge directed
application form for registration as prescribed by the Commission by the COMELEC En Banc to be filed against petitioners with the RTC.
in three (3) copies before the Election Officer on any date during Even a mere perusal of the Complaint-Affidavit would readily show that
office hours after having acquired the qualifications of a voter. Section 10 of Republic Act No. 8189 was specifically mentioned therein.
On the matter of the acts covered by Section 10(g) and (j), the Complaint-
Affidavit, spells out the following allegations, to wit:
The application shall contain the following data:
5. Respondent-spouses made false and untruthful
xxxx
representations in their applications (Annexes "B" and "C") in

15
violation of the requirements of Section 10, RA 8189 (The Voter’s
Registration Act):
5.1 Respondent-spouses, in their sworn applications
(Annexes "B" and "C", claimed to be residents of 935 San
Jose [S]treet, Burauen, Leyte, when in truth and in fact,
they were and still are residents of 113 Mariposa Loop,
Mariposa [S]treet, Bagong Lipunan ng Crame, Quezon
City and registered voters of Barangay Bagong Lipunan
ng Crame, District IV, Quezon City, Precinct No. 4419-A,
a copy of the Certification issued by Hon. Emmanuel V.
Gozon, Punong Barangay, Bagong Lipunan ng Crame,
Quezon City is hereto attached and made an integral part
hereof, as Annex "D";
5.2 Respondent-spouses knowing fully well said truth,
intentionally and willfully, did not fill the blank spaces in
their applications (Annexes "B" and "C") corresponding to
the length of time they have resided in Burauen, Leyte;
6. Respondent-spouses, in (sic) all intents and purposes, were
and still are residents and registered voters of Quezon City, as
evidenced by Voter Registration Record Nos. 26195824 and
26195823, respectively; photocopies of which are hereto attached
as Annexes "E" and "F"[.] Likewise, attached is a "Certification"
(Annex "G") of Ms. Evelyn B. Bautista, Officer-in-Charge of the
Office of the Election Officer, Fourth District, Quezon City, dated
May 31, 2000, together with a certified copy of the computer print-
out of the list of voters of Precinct No. 4419-A (Annex "G-1" )
containing the names of voters Carlos Romualdez and Erlinda
Reyes Romualdez. The Certification reads as follows:
"THIS IS TO CERTIFY that as per office record MR.
CARLOS ROMUALDEZ and MS. ERLINDA REYES
ROMUALDEZ are registered voters of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City, Precinct
Number 4419A with voters affidavit serial nos. 26195824
and 26195823, respectively.
This certification is issued for whatever legal purpose it
may serve."
7. Respondent-spouses, registered as new voters of the
Municipality of Burauen, Leyte, [in spite of] the fact that they were
and still are, registered voters of Quezon City as early as June
22, 1997;
7.1 That, Double Registration is an election offense.
A person qualified as a voter is only allowed to register
once.
If a person registers anew as a voter in spite of a
subsisting registration, the new application for registration
will be disapproved. The registrant is also liable not only
for an election offense of double registration, but also for
another election offense of knowingly making any false or
untruthful statement relative to any data or information
required in the application for registration.
In fact, when a person applies for registration as a voter,
he or she fills up a Voter Registration Record form in his
or her own handwriting, which contains a Certification
which reads:
"I do solemnly swear that the above statements regarding
my person are true and correct; that I possess all the
qualifications and none of the disqualifications of a voter;
that the thumbprints, specimen signatures and
photographs appearing herein are mine; and that I am not
registered as a voter in any other precinct."27
Petitioners cannot be said to have been denied due process on the claim
that the election offenses charged against them by private respondent
are entirely different from those for which they stand to be accused of
before the RTC, as charged by the COMELEC. In the first place, there
appears to be no incongruity between the charges as contained in the
Complaint-Affidavit and the Informations filed before the RTC,
notwithstanding the denomination by private respondent of the alleged
violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the
Omnibus Election Code and Section 12 of Republic Act No. 8189.
Evidently, the Informations directed to be filed by the COMELEC against
petitioners, and which were, in fact, filed with the RTC, were based on the
same set of facts as originally alleged in the private respondent’s
Complaint-Affidavit.
16
Petitioners buttress their claim of lack of due process by relying on the
case of Lacson v. Executive Secretary.28Citing Lacson, petitioners argue
that the real nature of the criminal charge is determined by the actual
recital of facts in the Complaint or Information; and that the object of such
written accusations was to furnish the accused with such a description of
the charge against him, as will enable him to make his defense. Let it be
said that, in Lacson, this court resolved the issue of whether under the
allegations in the subject Informations therein, it is the Sandiganbayan or
the Regional Trial Court which has jurisdiction over the multiple murder
case against therein petitioner and intervenors. In Lacson, we
underscored the elementary rule that the jurisdiction of a court is
determined by the allegations in the Complaint or Information, and not by
the evidence presented by the parties at the trial.29 Indeed, in Lacson, we
articulated that the real nature of the criminal charge is determined not
from the caption or preamble of the Information nor from the specification
of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the Complaint or
Information.30
Petitioners’ reliance on Lacson, however, does not support their claim of
lack of due process because, as we have said, the charges contained in
private respondent’s Complaint-Affidavit and the charges as directed by
the COMELEC to be filed are based on the same set of facts. In fact, the
nature of the criminal charges in private respondent’s Complaint-Affidavit
and that of the charges contained in the Informations filed with the RTC,
pursuant to the COMELEC Resolution En Banc are the same, such that,
petitioners cannot claim that they were not able to refute or submit
documentary evidence against the charges that the COMELEC filed with
the RTC. Petitioners were afforded due process because they were
granted the opportunity to refute the allegations in private respondent’s
Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-
Affidavit, petitioners filed a Joint Counter-Affidavit with Motion to Dismiss
with the Law Department of the COMELEC. They similarly filed a
Memorandum before the said body. Finding that due process was not
dispensed with under the circumstances in the case at bar, we agree with
the stance of the Office of the Solicitor General that petitioners were
reasonably apprised of the nature and description of the charges against
them. It likewise bears stressing that preliminary investigations were
conducted whereby petitioners were informed of the complaint and of the
evidence submitted against them. They were given the opportunity to
adduce controverting evidence for their defense. In all these stages,
petitioners actively participated.
The instant case calls to our minds Orquinaza v. People,31 wherein the
concerned police officer therein designated the offense charged as
sexual harassment; but, the prosecutor found that there was no
transgression of the anti-sexual harassment law, and instead, filed an
Information charging therein petitioner with acts of lasciviousness. On a
claim that there was deprivation of due process, therein petitioner argued
that the Information for acts of lasciviousness was void as the preliminary
investigation conducted was for sexual harassment. The court held that
the designation by the police officer of the offense is not conclusive as it
is within the competence of the prosecutor to assess the evidence
submitted and determine therefrom the appropriate offense to be
charged.
Accordingly, the court pronounced that the complaint contained all the
allegations to support the charge of acts of lasciviousness under the
Revised Penal Code; hence, the conduct of another preliminary
investigation for the offense of acts of lasciviousness would be a futile
exercise because the complainant would only be presenting the same
facts and evidence which have already been studied by the
prosecutor.32 The court frowns upon such superfluity which only serves to
delay the prosecution and disposition of the criminal complaint.33
Second. Petitioners would have this court declare Section 45(j) of
Republic Act No. 8189 vague, on the ground that it contravenes the fair
notice requirement of the 1987 Constitution, in particular, Section 14(1)
and Section 14(2), Article III of thereof. Petitioners submit that Section
45(j) of Republic Act No. 8189 makes no reference to a definite provision
of the law, the violation of which would constitute an election offense.
We are not convinced.
The void-for-vagueness doctrine holds that a law is facially invalid if men
of common intelligence must necessarily guess at its meaning and differ
as to its application.34 However, this Court has imposed certain limitations
by which a criminal statute, as in the challenged law at bar, may be
scrutinized. This Court has declared that facial invalidation35 or an "on-its-
face" invalidation of criminal statutes is not appropriate.36 We have so
enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 37 thus:
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in
17
American law, First Amendment cases. They cannot be made to
do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that 'one to whom
application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its
application might be unconstitutional.' As has been pointed out,
'vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while
statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'"
(underscoring supplied)
"To this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity." While mentioned in
passing in some cases, the void-for-vagueness concept has yet
to find direct application in our jurisdiction. In Yu Cong Eng v.
Trinidad, the Bookkeeping Act was found unconstitutional
because it violated the equal protection clause, not because it
was vague. Adiong v. Comelec decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec held that a
portion of RA 6735 was unconstitutional because of undue
delegation of legislative powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes
would result in a mass acquittal of parties whose cases may
not have even reached the courts. Such invalidation would
constitute a departure from the usual requirement of "actual
case and controversy" and permit decisions to be made in a
sterile abstract context having no factual concreteness.
In Younger v. Harris, this evil was aptly pointed out by the U.S.
Supreme Court in these words:
"[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task
for the judiciary. The combination of the relative remoteness of
the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, x x x
ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be
decided."
For this reason, generally disfavored is an on-its-face
invalidation of statutes, described as a "manifestly strong
medicine" to be employed "sparingly and only as a last
resort." In determining the constitutionality of a statute,
therefore, its provisions that have allegedly been violated
must be examined in the light of the conduct with which the
defendant has been charged. (Emphasis supplied.)
At the outset, we declare that under these terms, the opinions of the
dissent which seek to bring to the fore the purported ambiguities of a long
list of provisions in Republic Act No. 8189 can be deemed as a facial
challenge. An appropriate "as applied" challenge in the instant Petition
should be limited only to Section 45 (j) in relation to Sections 10 (g) and
(j) of Republic Act No. 8189—the provisions upon which petitioners are
charged. An expanded examination of the law covering provisions which
are alien to petitioners’ case would be antagonistic to the rudiment that
for judicial review to be exercised, there must be an existing case or
controversy that is appropriate or ripe for determination, and not
conjectural or anticipatory.
We further quote the relevant ruling in David v. Arroyo on the proscription
anent a facial challenge:38
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that "reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection
and rebellion are considered "harmful" and "constitutionally
unprotected conduct." In Broadrick v. Oklahoma, it was held:
It remains a matter of no little difficulty to determine when a law
may properly be held void on its face and when such summary
action is inappropriate. But the plain import of our cases is, at
the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to
sanction moves from pure speech toward conduct and that
conduct even if expressive falls within the scope of
otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.
18
Thus, claims of facial overbreadth are entertained in cases
involving statutes which, by their terms, seek to regulate only
"spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to
protected conduct." Here, the incontrovertible fact remains that
PP 1017 pertains to a spectrum of conduct, not free speech,
which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly
strong medicine," to be used "sparingly and only as a last
resort," and is "generally disfavored;" The reason for this is
obvious. Embedded in the traditional rules governing
constitutional adjudication is the principle that a person to whom a
law may be applied will not be heard to challenge a law on the
ground that it may conceivably be applied unconstitutionally to
others, i.e., in other situations not before the Court. A writer
and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules
is the concern with the "chilling;" deterrent effect of the overbroad
statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad laws "very existence may
cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those
third parties.
In other words, a facial challenge using the overbreadth doctrine
will require the Court to examine PP 1017 and pinpoint its flaws
and defects, not on the basis of its actual operation to petitioners,
but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from
constitutionally protected speech or expression.
Xxx xxx xxx
And third, a facial challenge on the ground of overbreadth is the
most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance when
the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the
ground of vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of
common intelligence must necessarily guess at its meaning
and differ as to its application." It is subject to the same
principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague in all its
possible applications.
Be that as it may, the test in determining whether a criminal statute is
void for uncertainty is whether the language conveys a sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practice.39 This Court has similarly stressed that the
vagueness doctrine merely requires a reasonable degree of certainty for
the statute to be upheld - not absolute precision or mathematical
exactitude.40
As structured, Section 4541 of Republic Act No. 8189 makes a recital of
election offenses under the same Act. Section 45(j) is, without doubt,
crystal in its specification that a violation of any of the provisions of
Republic Act No. 8189 is an election offense. The language of Section
45(j) is precise. The challenged provision renders itself to no other
interpretation. A reading of the challenged provision involves no
19
guesswork. We do not see herein an uncertainty that makes the same
vague.
Notably, herein petitioners do not cite a word in the challenged provision,
the import or meaning of which they do not understand. This is in stark
contrast to the case of Estrada v. Sandiganbayan42 where therein
petitioner sought for statutory definition of particular words in the
challenged statute. Even then, the Court in Estrada rejected the
argument.
This Court reasoned:
The rationalization seems to us to be pure sophistry. A statute is
not rendered uncertain and void merely because general
terms are used therein, or because of the employment of
terms without defining them; much less do we have to define
every word we use. Besides, there is no positive
constitutional or statutory command requiring the 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 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, or at least, can be gathered from the whole
act, which is distinctly expressed in the Plunder Law."
Moreover, it is a well-settled principle of legal hermeneutics
that words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification, unless it is
evident that the legislature intended a technical or special
legal meaning to those words. The intention of the lawmakers
who are, ordinarily, untrained philologists and lexicographers to
use statutory phraseology in such a manner is always presumed.
Perforce, this Court has underlined that an act will not be held invalid
merely because it might have been more explicit in its wordings or
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
other statutes.43
The evident intent of the legislature in including in the catena of election
offenses the violation of any of the provisions of Republic Act No. 8189, is
to subsume as punishable, not only the commission of proscribed acts,
but also the omission of acts enjoined to be observed. On this score, the
declared policy of Republic Act No. 8189 is illuminating. The law
articulates the policy of the State to systematize the present method of
registration in order to establish a clean, complete, permanent and
updated list of voters. A reading of Section 45 (j) conjointly with the
provisions upon which petitioners are charged, i.e., Sections 10 (g) and
(j) would reveal that the matters that are required to be set forth under the
aforesaid sections are crucial to the achievement of a clean, complete,
permanent and updated list of voters. The factual information required by
the law is sought not for mere embellishment.
There is a definitive governmental purpose when the law requires that
such facts should be set forth in the application. The periods of residence
in the Philippines and in the place of registration delve into the matter of
residency, a requisite which a voter must satisfy to be deemed a qualified
voter and registered in the permanent list of voters in a precinct of the city
or municipality wherein he resides. Of even rationality exists in the case
of the requirement in Section 10 (j), mandating that the applicant should
state that he/she is not a registered voter of any precinct. Multiple voting
by so-called flying voters are glaring anomalies which this country strives
to defeat. The requirement that such facts as required by Section 10 (g)
and Section 10 (j) be stated in the voter’s application form for registration
is directly relevant to the right of suffrage, which the State has the right to
regulate.
It is the opportune time to allude to the case of People v.
Gatchalian44 where the therein assailed law contains a similar provision
as herein assailed before us. Republic Act No. 602 also penalizes any
person who willfully violates any of the provisions of the Act. The Court
dismissed the challenged, and declared the provision constitutional. The
Court in Gatchalian read the challenged provision, "any of the provisions
of this [A]ct" conjointly with Section 3 thereof which was the pertinent
portion of the law upon which therein accused was prosecuted.
Gatchalian considered the terms as all-embracing; hence, the same must
include what is enjoined in Section 3 thereof which embodies the very
fundamental purpose for which the law has been adopted. This Court
ruled that the law by legislative fiat intends to punish not only those
expressly declared unlawful but even those not so declared but are
clearly enjoined to be observed to carry out the fundamental purpose of
the law.45Gatchalian remains good law, and stands unchallenged.
It also does not escape the mind of this Court that the phraseology in
Section 45(j) is employed by Congress in a number of our laws.46 These
provisions have not been declared unconstitutional.
20
Moreover, every statute has in its favor the presumption of validity.47 To
justify its nullification, there must be a clear and unequivocal breach of
the Constitution, and not one that is doubtful, speculative or
argumentative.48We hold that petitioners failed to overcome the heavy
presumption in favor of the law. Its constitutionality must be upheld in the
absence of substantial grounds for overthrowing the same.
A salient point. Courts will refrain from touching upon the issue of
constitutionality unless it is truly unavoidable and is the very lis mota. In
the case at bar, the lis mota is the alleged grave abuse of discretion of
the COMELEC in finding probable cause for the filing of criminal charges
against petitioners.
Third. Petitioners maintain that the COMELEC En Banc, premised its
finding on a misapprehension of facts, and committed grave abuse of
discretion in directing the filing of Informations against them with the
RTC.
We are once again unimpressed.
The constitutional grant of prosecutorial power in the COMELEC finds
statutory expression under Section 26549of Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code.50 The task of the
COMELEC whenever any election offense charge is filed before it is to
conduct the preliminary investigation of the case, and make a
determination of probable cause. Under Section 8(b), Rule 34 of the
COMELEC Rules of Procedure, the investigating officer makes a
determination of whether there is a reasonable ground to believe that a
crime has been committed.51 In Baytan v. COMELEC,52 this Court,
sufficiently elucidated on the matter of probable cause in the prosecution
of election offenses, viz:
It is also well-settled that the finding of probable cause in the
prosecution of election offenses rests in the COMELEC's sound
discretion. The COMELEC exercises the constitutional authority
to investigate and, where appropriate, prosecute cases for
violation of election laws, including acts or omissions constituting
election frauds, offense and malpractices. Generally, the Court
will not interfere with such finding of the COMELEC absent a
clear showing of grave abuse of discretion. This principle
emanates from the COMELEC's exclusive power to conduct
preliminary investigation of all election offenses punishable under
the election laws and to prosecute the same, except as may
otherwise be provided by law.53
It is succinct that courts will not substitute the finding of probable
cause by the COMELEC in the absence of grave abuse of discretion.
The abuse of discretion must be so patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law as where the
power is exercised in an arbitrary and despotic manner by reason of
passion or hostility.54
According to the COMELEC En Banc, the investigating officer, in the
case at bar, held that there was sufficient cause for the filing of criminal
charges against petitioners, and found no reason to depart therefrom.
Without question, on May 9 and 11 of 2001, petitioners applied for
registration as new voters with the Office of the Election Officer of
Burauen, Leyte, notwithstanding the existence of petitioners’ registration
records as registered voters of Precinct No. 4419-A of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City. The directive by the
COMELEC which affirmed the Resolution55 of 28 November 2000 of
Investigating Officer Atty. Tangaro-Casingal does not appear to be
wanting in factual basis, such that a reasonably prudent man would
conclude that there exists probable cause to hold petitioners for trial.
Thus, in the aforesaid Resolution, the Investigating Officer, found:
A violation therefore of Section 10 of Republic Act No. 8189 is an
election offense.
In the instant case, when respondents Carlos Romualdez and
Erlinda Romualdez filed their respective applications for
registration as new voters with the Office of the Election Officer of
Burauen, Leyte on May 9 and 11, 2001, respectively, they stated
under oath that they are not registered voters in other precinct
(VRR Nos. 42454095 and 07902941). However, contrary to their
statements, records show they are still registered voters of
Precinct No. 4419-A, barangay Bagong Lipunan ng Crame,
District IV, Quezon City, as per VRR Nos. 26195825 and
26195823. In other words, respondents’ registration records in
Quezon City is (sic) still in existence.
While it may be true that respondents had written the City
Election Officer of District IV, Quezon City for cancellation of their
voter’s registration record as voter’s (sic) therein, they cannot
21
presume that the same will be favorably acted upon. Besides, RA
8189 provides for the procedure in cases of transfer of residence
to another city/municipality which must be complied with, to wit:
"Section 12. Change of Residence to Another City or Municipality.
– Any registered voter who has transferred residence to another
city or municipality may apply with the Election Officer of his new
residence for the transfer of his registration records.
The application for transfer of registration shall be subject to the
requirements of notice and hearing and the approval of the
Election Registration Board, in accordance with this Act. Upon
approval, of the application for transfer, and after notice of such
approval to the Election Officer of their former residence of the
voter, said Election Officer shall transmit by registered mail the
voter’s registration record to the Election Officer of the voter’s
new residence."
They cannot claim ignorance of the abovestated provision on the
procedure for transfer of registration records by reason of
transferred new residence to another municipality. Based on the
affidavit executed by one Eufemia S. Cotoner, she alleged that
the refusal of the Assistant Election Officer Ms. Estrella Perez to
accept the letter of respondents was due to improper procedure
because respondents should have filed the required request for
transfer with the Election Officer of Burauen, Leyte. Despite this
knowledge, however, they proceeded to register as new voters of
Burauen, Leyte, notwithstanding the existence of their previous
registrations in Quezon City.
In their subsequent affidavit of Transfer of Voters Registration
under Section 12 of Republic Act 8189, respondents admitted
that they erroneously filed an application as a new voter (sic) with
the office of the Election Officer of Burauen, Leyte, by reason of
an honest mistake, which they now desire to correct.
(underscoring ours).
Respondents lose sight of the fact that a statutory offense, such
as violation of election law, is mala prohibita. Proof of criminal
intent is not necessary. Good faith, ignorance or lack of malice is
beside the point. Commission of the act is sufficient. It is the act
itself that is punished.
xxxx
In view of the foregoing, the Law Department respectfully submits
that there is probable cause to hold respondents Carlos
Romualdez and Erlinda Romualdez for trial in violation of Section
10(g) and (j) in relation to Section 45(j) of Republic Act No. 8189.
There is no doubt that they applied for registration as new voters
of Burauen, Leyte consciously, freely and voluntarily.56
We take occasion to reiterate that the Constitution grants to the
COMELEC the power to prosecute cases or violations of election laws.
Article IX (C), Section 2 (6) of the 1987 Constitution, provides:
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters; investigate
and where appropriate, prosecute cases or violations of election
laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
This power to prosecute necessarily involves the power to determine who
shall be prosecuted, and the corollary right to decide whom not to
prosecute.57 Evidently, must this power to prosecute also include the right
to determine under which laws prosecution will be pursued. The courts
cannot dictate the prosecution nor usurp its discretionary powers. As a
rule, courts cannot interfere with the prosecutor’s discretion and control of
the criminal prosecution.58 Its rationale cannot be doubted. For the
business of a court of justice is to be an impartial tribunal, and not to get
involved with the success or failure of the prosecution to
prosecute.59 Every now and then, the prosecution may err in the selection
of its strategies, but such errors are not for neutral courts to rectify, any
more than courts should correct the blunders of the defense.60
Fourth. In People v. Delgado,61 this Court said that when the COMELEC,
through its duly authorized law officer, conducts the preliminary
investigation of an election offense and upon a prima facie finding of a
probable cause, files the Information in the proper court, said court
thereby acquires jurisdiction over the case. Consequently, all the
subsequent disposition of said case must be subject to the approval of
the court. The records show that Informations charging petitioners with
violation of Section 10(g) and (j), in relation to Section 45(j) of Republic
Act No. 8189 had been filed with the RTC. The case must, thus, be
allowed to take its due course.
22
 It may be recalled that petitioners prayed for the issuance of a Temporary RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO
Restraining Order or Writ of Preliminary Injunction before this Court to Associate Justice Associate Justice
restrain the COMELEC from executing its Resolutions of 11 June 2004
and 27 January 2005. In a Resolution dated 20 June 2006, this Court En ARTURO D. BRION
Banc denied for lack of merit petitioners’ Motion Reiterating Prayer for Associate Justice
Issuance of Writ of Preliminary Injunction and to Cite for Indirect
Contempt. Logically, the normal course of trial is expected to have
continued in the proceedings a quo.

WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated CERTIFICATION

11 June 2004 and 27 January 2005 of the COMELEC En
Banc are AFFIRMED. Costs against petitioners. Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
SO ORDERED. consultation before the case was assigned to the writer of the opinion of
the Court.
MINITA V. CHICO-NAZARIO
Associate Justice REYNATO S. PUNO
Chief Justice

WE CONCUR:
Footnotes
REYNATO S. PUNO
* On leave.
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

1Penned by Commissioner Florentino A. Tuason, Jr. with the
Associate Justice Associate Justice concurrence of Commissioners Rufino S. B. Javier, Mehol K.
Sadain, Resurreccion Z. Borra, Virgilio O. Garcillano and Manuel
Dissenting Opinion A. Barcelona, Jr.; Rollo, pp. 23-27.
ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice 2Penned by Commissioner Virgilio O. Garcillano with the
concurrence of Commissioners Mehol K. Sadain, Resurreccion Z.
*RENATO C. CORONA CONCHITA CARPIO MORALES Borra, Florentino A. Tuason, Jr., and Manuel A. Barcelona, Jr.
Associate Justice Associate Justice Chairman Benjamin S. Abalos and Commissioner Rufino S.B.
Javier took no part. Rollo, pp. 28-30.
Dissenting Opinion
ADOLFO S. AZCUNA DANTE O. TINGA 3SEC. 10. Registration of Voters. – A qualified voter shall be
Associate Justice Associate Justice
registered in the permanent list of voters in a precinct of the city
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA or municipality wherein he resides to be able to vote in any
Associate Justice Associate Justice election. To register as a voter, he shall personally accomplish an
application form for registration as prescribed by the Commission
23
in three (3) copies before the Election Officer on any date during
office hours after having acquired the qualifications of a voter.
The application shall contain the following data:
a) Name, surname, middle name, and/or maternal
surname;
b) Sex;
c) Date, and place of birth;
d) Citizenship;
e) Civil status, if married, name of spouse;
f) Profession, occupation or work;
g) Periods of residence in the Philippines and in the place
of registration;
h) Exact address with the name of the street and house
number for location in the precinct maps maintained by
the local office of the Commission, or in case there is
none, a brief description of his residence sitio and
Barangay;
i) A statement that the applicant possesses all the
qualifications of a voter;
j) A statement that the application is not a registered voter
of any precinct; and
k) Such information or data as may be required by the
Commission.
The application for registration shall contain three (3)
specimen signatures of the applicant, clear and legible
rolled prints of his left and right thumbprints, with four
identification size copies of his latest photograph,
attached thereto, to be taken at the expense of the
Commission.
Before the applicant accomplishes his application for
registration, the Election Officer shall inform him of the
qualifications and disqualifications prescribed by law for a
voter, and thereafter, see to it that the accomplished
application contains all the data therein required and that
the applicant’s specimen signatures, fingerprints, and
photographs are properly affixed in all copies of the
voter’s application.
4SEC. 45. Election Offense. – The following shall be considered
election offenses under this Act.
a) to deliver, hand over, entrust or give, directly or
indirectly, his voter’s identification card to another in
consideration of money or other benefit or promise; or
take or accept such voter’s identification card, directly or
indirectly, by giving or causing the giving of money or
other benefit or making or causing the making of a
promise therefor;
b) to fail, without cause, to post or give any of the notices
or to make any of the reports required under this Act;
c) to issue or cause the issuance of a voter’s identification
number to cancel or cause the cancellation thereof in
violation of the provisions of this Act; or to refuse the
issuance of registered voters their voter’s identification
card;
d) to accept an appointment, to assume office and to
actually serve as a member of the Election Registration
Board although ineligible thereto; to appoint such
ineligible person knowing him to be ineligible;
e) to interfere with, impede, abscond for purposes of gain
or to prevent the installation or use of computers and
devices and the processing, storage, generation and
transmission of registration data or information;
f) to gain, cause access to, use, alter, destroy, or disclose
any computer data, program, system software, network,
or any computer-related devices, facilities, hardware or
equipment, whether classified or declassified;
24
 g) failure to provide certified voters and deactivated voters xxxx
list to candidates and heads or representatives of political
parties upon written request as provided in Section 30 (2) Any person who knowingly makes any false or
hereof; untruthful statement relative to any of the data or
information required in the application for registration.
h) failure to include the approved application form for
registration of a qualified voter in the book of voters of a 9Sec. 261. Prohibited Acts. – The following shall be guilty of an
particular precinct or the omission of the name of a duly election offense;
registered voter in the certified list of voters of the precinct
where he is duly registered resulting in his failure to cast (y) On Registration of Voters:
his vote during an election, plebiscite, referendum,
initiative and/or recall. The presence of the former name
xxxx
in the book of voters or certified list of voters in precincts
other than where he is duly registered shall not be an
excuse hereof; (5) Any person who, being a registered voter, registers
anew without filing an application for cancellation of his
previous registration.
i) The posting of a list of voters outside or at the door of a
precinct on the day of an election, plebiscite, referendum,
initiative and/or recall and which list is different in contents
10 SEC. 12. Change of Residence to Another City or Municipality.
from the certified list of voters being used by the Board of – Any registered voter who has transferred residence to another
Election Inspectors; and city or municipality may apply with the Election Officer of his new
residence for the transfer of his registration records.
j) Violation of any of the provisions of this Act. (Italics
supplied.) The application for transfer of registration shall be subject
to the requirements of notice and hearing and the
approval of the Election Registration Board, in
5Entitled, "AN ACT PROVIDING FOR A GENERAL
accordance with this Act. Upon approval of the application
REGISTRATION OF VOTERS, ADOPTING A SYSTEM OF
for transfer, and after notice of such approval to the
CONTINUING REGISTRATION, PRESCRIBING THE
Election Officer of the former residence of the voter, said
PROCEDURES THEREOF AND AUTHORIZING THE
Election Officer shall transmit by registered mail the
APPROPRIATION OF FUNDS THEREFOR."
voter’s registration record to the Election Officer of the
voter’s new residence.
6 Angelino Apostol indicated in the Complaint-Affidavit that he is
the Municipal Chairman of the Lakas-NUCD, a duly registered 11 Supra note 3.
political party in the Municipality of Burauen, Leyte. However, on
5 March 2001, he withdrew as complainant due to medical
reasons. See rollo, pp. 81, 108-111.
12 Rollo, p. 87.

7 Id. at 81-88.
13 Id. at 31-39.

8Sec. 261. Prohibited Acts. – The following shall be guilty of an

14 The Resolution of Welcome states, in part, to wit:
election offense:

(y) On Registration of Voters:

25
WHEREAS, Mr. Carlos "Caloy" S. Romualdez has established his
official residence at No. 935 San Jose Street, Barangay District
III, Burauen, Leyte, effective today, May 9th 2000. (Rollo, p. 44.)
15 Id. at 26-27; 149.
16 Id. at 27.
17 Id. at 28-30.
18 Id. at 29.
19 The pertinent portion of the Information, reads, thus:
The undersigned accuses CARLOS SISON
ROMUALDEZ, for violation of Section 10(g), in relation to
Section 45(j) of Republic Act No. 8189, committed as
follows:
That on or about May 9, 2000 during the
continuing Registration of Voters under Republic
Act No. 8189, in the Municipality of Burauen,
Province of Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, did, then and there, willfully and
unlawfully, fail to fill up the required period of
residence in the place of registration in his Voter
Registration Record (VRR) No. 42454095 before
the Election Registration Board (ERB) of said
municipality, which constitute (sic) material
misrepresentation in his application for registration
as a new registrant at Precinct No. 11-A,
Barangay District No. 3, in said municipality. (Id.
at 221.)
20 The Information, states, to wit:
The undersigned accuses ERLINDA REYES
ROMUALDEZ, for violation of Section 10 (g), in relation to
Section 45 (j) of Republic Act No. 8189, committed as
follows:
That on or about May 11, 2000 during the
continuing Registration of Voters under Republic
Act No. 8189, in the Municipality of Burauen,
Province of Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, did, then and there, willfully and
unlawfully, fail to fill up the required period of
residence in the place of registration in her Voter
Registration Record (VRR) No. 07902952 before
the Election Registration Board (ERB) of said
municipality, which constitute (sic) material
misrepresentation in her application for
registration as a new registrant at Precinct No. 11-
A, Barangay District No. 3, in said municipality.
(Id. at 227.)
The Information against petitioner CARLOS SISON
21
ROMUALDEZ, reads, in part:
The undersigned accuses CARLOS SISON
ROMUALDEZ, for violation of Section 10(j), in relation to
Section 45(j) of Republic Act No. 8189, committed as
follows:
That on or about May 9, 2000 during the
continuing Registration of Voters, under Republic
Act No. 8189, in the Municipality of Burauen,
Province of Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, a registered voter at Precinct No.
4419A of Barangay Bagong Lipunan ng Crame,
Quezon City, with Voter Registration Record
(VRR) No. 26195824, did, then and there, willfully
and unlawfully, file an application for registration
on May 9, 2000 at Precinct No. 11-A of Barangay
District III, Burauen, Leyte, as evidenced by Voter
Registration Record (VRR) No. 42454095, where
he declared under oath constituting material
misrepresentation that he is not a registered voter
in any precinct in the municipality, when in truth
and in fact, he is a registered voter at Precinct No.
4419A of Barangay Bagong Lipunan ng Crame,
26
 Quezon City under Voter Registration Record
(VRR) No. 26195824 dated June 22, 1997.
The Information against petitioner ERLINDA
REYES ROMUALDEZ, for violation of Section
10(j), in relation to Section 45(j) of Republic Act
No. 8189, committed as follows:
That on or about May 11, 2000 during the
continuing Registration of Voters under Republic
Act No. 8189, in the Municipality of Burauen,
Province of Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, a registered voter at Precinct No.
4419A of Barangay Bagong Lipunan ng Crame,
Quezon City, with Voter Registration Record
(VRR) No. 26195832, did, then and there, willfully
and unlawfully, file an application for registration
on May 11, 2000 in Barangay District III, Burauen,
Leyte, as evidenced by Voter Registration Record
(VRR) No. 07902952, where she declared under
oath constituting material misrepresentation that
she is not a registered voter in any precinct in the
municipality, when in truth and in fact, she is a
registered voter in Barangay Bagong Lipunan ng
Crame, Quezon City under Voter Registration
Record (VRR) No. 26195823 dated June 22,
1997. (Id. at 224-225.)
22 Id. at 182, 187.
23 Id. at 215.
24 Id. at 235.
25Section 14 (1), Article III of the 1987 Constitution, provides,
thus:
Section 14. (1) No person shall be held to answer for a criminal
offense without due process of law.
26 Section 14 (2). Article III of the 1987 Constitution states:
Section 14 (2) In all criminal prosecutions, the accused
shall be presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and
public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is
unjustifiable,
27 Rollo, pp. 82-83.
28 G.R. No. 128096, 20 January 1999, 301 SCRA 298.
29 Id. at 325.
30 Id. at 327.
31 G.R. No. 165596, 17 November 2005, 475 SCRA 341.
32 Id. at 349.
33 Id.
34David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409,
171485, 171483, 171400, 171489, and 171424, 3 May 2006, 489
SCRA 160, 239.
35A facial invalidation or a line-by-line scrutiny is an examination
of the entire law, pinpointing its flaws and defects, not only on the
basis of its actual operations to the parties involved, but on the
assumption or prediction that its very existence may cause others
not before the court to refrain from constitutionally protected
speech, or on the ground that they may be applied to others not
before the court whose activities are constitutionally protected.
See David, supra.
36See Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July
2004, 435 SCRA 371, 381-382. The Court in Romualdez,
27
restated the void-for-vagueness doctrine, thus: "The void-for-
vagueness doctrine states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and
differ as to the application, violates the first essential of due
process," citing the Separate Opinion of Mr. Justice Mendoza in
Estrada v. Sandiganbayan, 421 Phil. 290, 429-430 (2001), citing
Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed.
328 (1926); in turn cited in Ermita-Malate Hotel and Motel
Operators Association v. City Mayor, G.R. No. L-24693, 31 July
1967, 20 SCRA 849, 867.
37
Id.
38 Supra note 34.
Estrada v. Sandiganbayan, id. at 352, citing State v. Hill, 189
39
Kan 403, 369 P2d 365, 91 ALR2d 750.
40 Romualdez v. Sandiganbayan, supra.
41 Section 45 of Republic Act No. 8189, reads, in full, viz:
SEC. 45. Election Offenses. - The following shall be
considered election offenses under this Act
a. to deliver, hand over, entrust or give, directly or
indirectly, his voter's identification card to another in
consideration of money or other benefit of promise; or
take or accept such voter's identification card, directly or
indirectly, by giving or causing the giving of money or
other benefit or making or causing the making of a
promise therefor;
b. to fail, without cause, to post or give any of the notices
or to make any of the reports required under this Act;
c. to issue or cause the issuance of a voter's identification
number or to cancel or cause the cancellation thereof in
violation of the provisions of this Act; or to refuse the
issuance of registered voters their voter's identification
card;
d. to accept an appointment, to assume office and to
actually serve as a member of the Election Registration
Board although ineligible thereto; to appoint such
ineligible person knowing him to be ineligible;
e. to interfere with, impede, abscond for purpose of gain
or to prevent the installation or use of computers and
devices and the processing, storage, generation, and
transmission of registration data or information;
f. to gain, cause access to, use, alter, destroy, or disclose
any computer data, program, system software, network,
or any computer-related devices, facilities, hardware or
equipment, whether classified or declassified;
g. failure to provide certified voters and deactivated voters
list to candidates and heads of representatives of political
parties upon written request as provided in Section 30
hereof;
h. failure to include the approved application form for
registration of a qualified voter in the book of voters of a
particular precinct or the omission of the name of a duly
registered voter in the certified list of voters of the precinct
where he is duly registered resulting in his failure to cast
his vote during an election, plebiscite, referendum,
initiative and/or recall. The presence of the form or name
in the book of voters or certified list of voters in precincts
other than where he is duly registered shall not be an
excuse hereof;
i. the posting of a list of voters outside or at the door of a
precinct on the day of an election, plebiscite, referendum,
initiative and/or recall, and which list is different in
contents from the certified list of voters being used by the
Board of Election Inspectors; and
j. Violation of any of the provisions of this Act.
42 G.R. No. 148560, 421 Phil. 290 (2001).
43 Supra Note 35 at 353.
28
44 G.R. No. L-12011-14, 104 Phil. 664 (1958).
45 Id. at 672.
46Section 124 (4) of Republic Act No. 6938, otherwise known
as the Cooperative Code, reads:
"Any violation of any provision of this Code for which no
penalty is imposed shall be punished by imprisonment of
not less than six (6) months nor more than one (1) year
and a fine of not less than One Thousand Pesos
(P1,000.00) or both at the discretion of the Court."
Section 72 of Republic Act No. 8371, otherwise known as
The Indigenous Peoples Rights Act, provides:
"Any person who commits violation of any of the
provisions of this Act, such as, but not limited toxxx"
Section 12 of Republic Act No. 8762, otherwise known as
the Retail Trade Liberalization Act, states:
"Any person who would be found guilty of violation of any
provisions of this Act shall be punished by imprisonment
of not less than six (6) years and one (1) day but not more
than eight (8) years, and a fine of at least One Million
(P1,000,000.00) but not more than Twenty Million
(P20,000,000.00).
47See Philippine Judges Association v. Prado, G.R. No. 105371,
11 November 1993, 227 SCRA 703,705.
48
Arceta v. Mangrobang, G.R. No. 152895, 15 June 2004.
49 Section 265 of Batas Pambansa Blg. 881, reads:
SEC. 265. Prosecution. – The Commission shall, through
its duly authorized legal officers, have the exclusive power
to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute
the same. The Commission may avail of the assistance of
other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the
complainant may file the complaint with the office of the
fiscal or with the Department of Justice for proper
investigation and prosecution, if warranted.
50 Kilosbayan v. COMELEC, 345 Phil. 1141, 1168 (1997).
51Section 8(b), Rule 34, COMELEC Rules of Procedure, states
as follows:
SEC. 8. Duty of Investigating Officer.- The preliminary
investigation must be terminated within twenty (20) days
after receipt of the counter-affidavits and other evidence
of the respondents, and resolution thereof shall be made
within five (5) days thereafter.
xxxx
(b) If the investigating officer finds cause to hold the
respondent for trial, he shall prepare the resolution, and
the corresponding information wherein he shall certify
under oath that he has examined the complainant and his
witnesses, that there is reasonable ground to believe that
a crime has been committed and that the accused was
informed of the complaint and of the evidence submitted
against him and that he was given an opportunity to
submit controverting evidence.
52 444 Phil. 812, 820 (2003).
53 Id.
54 Duero v. Court of Appeals, 424 Phil. 12, 20 (2002).
55 Records, pp. 199-215.
56 Rollo, pp. 25-26.
Mapa v. Sandiganbayan, G.R. No. 100295, 26 April 1994, 231
57
SCRA 783.
29
 58Alonzo v. Concepcion, A.M. No. RTC-04-1879, 17 January
2005, citing People v. Moll, 68 Phil. 626 (1939).
Tanchanco v. Sandiganbayan, G.R. No. 141675-96, 25
59
November 2005.
60 Id.
61 G.R. Nos. 93419-32, 18 September 1990, 189 SCRA 715, 722.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on
behalf of the South-South Network (SSN) for Non-State Armed
Group Engagement, and ATTY. SOLIMAN M. SANTOS,
JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER,
THE CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson
Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), represented by its National
President Joselito V. Ustarez and Secretary General Antonio C.
Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS,
represented by its Executive Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary,
NORBERTO GONZALES, in his capacity as Acting Secretary of
National Defense, HON. RAUL GONZALES, in his capacity as
Secretary of Justice, HON. RONALDO PUNO, in his capacity as
Secretary of the Interior and Local Government, GEN.
HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and
DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP
Chief of Staff, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL
ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY,
EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS,
LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN,
PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA
(PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT),
MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD),
AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA,
RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN
OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL.
GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR.
CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO
RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO
CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and
Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA,
DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO
ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO.
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES,
NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
30
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE CALDERON, THE PNP, including its intelligence and investigative
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE x - - - - - - - - - - - - - - - - - - - - - - -x
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, G.R. No. 179157
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF
LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and
x - - - - - - - - - - - - - - - - - - - - - - -x FORMER SENATORS SERGIO OSMEÑA III and WIGBERTO E.
TAÑADA, Petitioners,
G.R. No. 178890 vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S OF THE ANTI-TERRORISM COUNCIL (ATC), Respondents.
RIGHTS, represented herein by Dr. Edelina de la Paz, and
representing the following organizations: HUSTISYA, represented x - - - - - - - - - - - - - - - - - - - - - - -x
by Evangeline Hernandez and also on her own behalf;
DESAPARECIDOS, represented by Mary Guy Portajada and also on G.R. No. 179461
her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA
DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG
Donato Continente and also on his own behalf, ECUMENICAL
(BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG
MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by
MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT
Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH
OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL),
PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado,
PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
OCARM, Petitioners,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT
vs.
OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T
GLORIA MACAPAGAL-ARROYO, in her capacity as President and
UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG),
Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO
SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST),
ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST,
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA
ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO
MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN
PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO
(SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES,
ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO
THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA),
LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO,
THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU
JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE
OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
CLARO, SALLY P. ASTRERA, ARNEL SEGUNE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
BELTRAN, Petitioners,
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
vs.
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME,
GLORIA MACAPAGAL-ARROYO, in her capacity as President and
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA,
31
DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO
ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO,
DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES,
NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME,
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of
Republic Act No. 9372 (RA 9372), "An Act to Secure the State and
Protect our People from Terrorism," otherwise known as the Human
Security Act of 2007,1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization,
and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer,
filed a petition for certiorari and prohibition on July 16, 2007 docketed as
G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU),
National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),
and Center for Trade Union and Human Rights (CTUHR), represented by
their respective officers3 who are also bringing the action in their capacity
as citizens, filed a petition for certiorari and prohibition docketed as G.R.
No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for
Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng
Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW),
League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and
Agham, represented by their respective officers,4 and joined by
concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido
Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB,
Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry
Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo,
Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and
Rey Claro Casambre filed a petition for certiorari and prohibition docketed
as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations
Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Justice and Peace (EMJP), and Promotion of Church People’s Response
(PCPR), which were represented by their respective officers5 who are
also bringing action on their own behalf, filed a petition for certiorari and
prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP),
Counsels for the Defense of Liberty (CODAL),6Senator Ma. Ana
Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada
filed a petition for certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other
regional chapters and organizations mostly based in the Southern
Tagalog Region,7 and individuals8 followed suit by filing on September 19,
2007 a petition for certiorari and prohibition docketed as G.R. No. 179461
that replicates the allegations raised in the BAYAN petition in G.R. No.
178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism
Council9 composed of, at the time of the filing of the petitions, Executive
Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul
Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto
Romulo, Acting Defense Secretary and National Security Adviser
Norberto Gonzales, Interior and Local Government Secretary Ronaldo
Puno, and Finance Secretary Margarito Teves as members. All the
petitions, except that of the IBP, also impleaded Armed Forces of the
Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and
Philippine National Police (PNP) Chief Gen. Oscar Calderon.
32
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded
President Gloria Macapagal-Arroyo and the support agencies for the Anti-
Terrorism Council like the National Intelligence Coordinating Agency,
National Bureau of Investigation, Bureau of Immigration, Office of Civil
Defense, Intelligence Service of the AFP, Anti-Money Laundering Center,
Philippine Center on Transnational Crime, and the PNP intelligence and
investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not
exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the
Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
(Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of
particularity how respondents acted without or in excess of their
respective jurisdictions, or with grave abuse of discretion amounting to
lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the
same.
In constitutional litigations, the power of judicial review is limited by four
exacting requisites, viz: (a) there must be an actual case or controversy;
(b) petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the lis mota of the case.10
In the present case, the dismal absence of the first two requisites, which
are the most essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome
of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive
Secretary12 summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and
substantial interest in a case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question on standing is whether a party
alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult
constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any
governmental act is invalid, but also that it sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement, and
not merely that it suffers thereby in some indefinite way. It must show that
it has been or is about to be denied some right or privilege to which it is
lawfully entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it
must show that (1) it has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, (2)
the injury is fairly traceable to the challenged action, and (3) the injury is
likely to be redressed by a favorable action. (emphasis and underscoring
supplied.)
Petitioner-organizations assert locus standi on the basis of being
suspected "communist fronts" by the government, especially the military;
whereas individual petitioners invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance
dispenses with the requirement that petitioner has experienced or is in
actual danger of suffering direct and personal injury, cases involving the
33
constitutionality of penal legislation belong to an altogether different
genus of constitutional litigation. Compelling State and societal interests
in the proscription of harmful conduct, as will later be elucidated,
necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR,
petitioners in G.R. No. 178890, allege that they have been subjected to
"close security surveillance by state security forces," their members
followed by "suspicious persons" and "vehicles with dark windshields,"
and their offices monitored by "men with military build." They likewise
claim that they have been branded as "enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor
General (OSG) correctly points out that petitioners have yet to show
any connection between the
purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham,
petitioner-organizations in G.R. No. 178581, would like the Court to take
judicial notice of respondents’ alleged action of tagging them as militant
organizations fronting for the Communist Party of the Philippines (CPP)
and its armed wing, the National People’s Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription
without following the procedure under the law.15 The petition of BAYAN-
ST, et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of
petitioners.
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not doubtful
or uncertain; and (3) it must be known to be within the limits of the
jurisdiction of the court. The principal guide in determining what facts may
be assumed to be judicially known is that of notoriety. Hence, it can be
said that judicial notice is limited to facts evidenced by public records and
facts of general notoriety. Moreover, a judicially noticed fact must be one
not subject to a reasonable dispute in that it is either: (1) generally known
within the territorial jurisdiction of the trial court; or (2) capable of accurate
and ready determination by resorting to sources whose accuracy cannot
reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters
coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted
by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are judicially
noticed, provided, they are of such universal notoriety and so generally
understood that they may be regarded as forming part of the common
knowledge of every person. As the common knowledge of man ranges
far and wide, a wide variety of particular facts have been judicially noticed
as being matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or non-
existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of
judicial notice. Petitioners’ apprehension is insufficient to substantiate
their plea. That no specific charge or proscription under RA 9372 has
been filed against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called
tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No.
178554, who merely harp as well on their supposed "link" to the CPP and
NPA. They fail to particularize how the implementation of specific
provisions of RA 9372 would result in direct injury to their organization
and members.
While in our jurisdiction there is still no judicially declared terrorist
organization, the United States of America17(US) and the European
Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group
as foreign terrorist organizations. The Court takes note of the joint
statement of Executive Secretary Eduardo Ermita and Justice Secretary
Raul Gonzales that the Arroyo Administration would adopt the US and
EU classification of the CPP and NPA as terrorist organizations.19 Such
statement notwithstanding, there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372. Again, RA 9372 has
been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely
34
without any threat of, much less an actual, prosecution or proscription
under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by
Party-list Representatives Saturnino Ocampo, Teodoro Casiño, Rafael
Mariano and Luzviminda Ilagan,20 urged the government to resume peace
negotiations with the NDF by removing the impediments thereto, one of
which is the adoption of designation of the CPP and NPA by the US and
EU as foreign terrorist organizations. Considering the policy statement of
the Aquino Administration21 of resuming peace talks with the NDF, the
government is not imminently disposed to ask for the judicial proscription
of the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct
and specific interests in the questions being raised.22 Of recent
development is the filing of the first case for proscription under Section
1723 of RA 9372 by the Department of Justice before the Basilan Regional
Trial Court against the Abu Sayyaf Group.24Petitioner-organizations do
not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a
prosecution under RA 9372 by alluding to past rebellion charges against
them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion
charges filed in 2006 against then Party-List Representatives Crispin
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and
Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan Muna.
Also named in the dismissed rebellion charges were petitioners Rey
Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua,
Emerencia de Jesus and Danilo Ramos; and accused of being front
organizations for the Communist movement were petitioner-organizations
KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and
COURAGE.26
The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372, and dismissed by this Court. For another,
rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the enactment of
RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no
relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372, none
of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus
standi on their sworn duty to uphold the Constitution. The IBP zeroes in
on Section 21 of RA 9372 directing it to render assistance to those
arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not,
however, suffice to clothe the IBP or any of its members with
standing.27 The IBP failed to sufficiently demonstrate how its mandate
under the assailed statute revolts against its constitutional rights and
duties. Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been
the subject of "political surveillance," also lacks locus standi. Prescinding
from the veracity, let alone legal basis, of the claim of "political
surveillance," the Court finds that she has not shown even the slightest
threat of being charged under RA 9372. Similarly lacking in locus standi
are former Senator Wigberto Tañada and Senator Sergio Osmeña III,
who cite their being respectively a human rights advocate and an
oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty.
Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the
issues they raise are of transcendental importance, "which must be
settled early" and are of "far-reaching implications," without mention of
any specific provision of RA 9372 under which they have been charged,
or may be charged. Mere invocation of human rights advocacy has
nowhere been held sufficient to clothe litigants with locus standi.
Petitioners must show an actual, or immediate danger of sustaining,
direct injury as a result of the law’s enforcement. To rule otherwise would
be to corrupt the settled doctrine of locus standi, as every worthy cause is
an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as
taxpayers and citizens. A taxpayer suit is proper only when there is an
exercise of the spending or taxing power of Congress,28 whereas citizen
standing must rest on direct and personal interest in the proceeding.29
35
RA 9372 is a penal statute and does not even provide for any
appropriation from Congress for its implementation, while none of the
individual petitioner-citizens has alleged any direct and personal interest
in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the
assertion of a public right, do not establish locus standi. Evidence of a
direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual
case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.30(emphasis and
underscoring supplied.)
As early as Angara v. Electoral Commission, the Court ruled that the
31
power of judicial review is limited to actual cases or controversies to be
exercised after full opportunity of argument by the parties. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that
is appropriate or ripe for determination, not conjectural or anticipatory,
lest the decision of the court would amount to an advisory opinion.32
Information Technology Foundation of the Philippines v.
COMELEC33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy
must be justiciable—definite and concrete, touching on the legal relations
of parties having adverse legal interests. In other words, the pleadings
must show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof on the other hand; that is, it must concern a
real and not merely a theoretical question or issue. There ought to
be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts.
(Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the
Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent events.34 Similarly, a
petition that fails to allege that an application for a license to operate a
radio or television station has been denied or granted by the authorities
does not present a justiciable controversy, and merely wheedles the
Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v.
Commission on Elections36 for failure to cite any specific affirmative action
of the Commission on Elections to implement the assailed resolution. It
refused, in Abbas v. Commission on Elections,37 to rule on the religious
freedom claim of the therein petitioners based merely on a perceived
potential conflict between the provisions of the Muslim Code and those of
the national law, there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or
anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of
a perceived threat to any constitutional interest suffices to provide a basis
for mounting a constitutional challenge. This, however, is qualified by the
requirement that there must be sufficient facts to enable the Court to
intelligently adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,39 allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since plaintiffs faced a "credible threat
of prosecution" and "should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief."40 The plaintiffs
therein filed an action before a federal court to assail the constitutionality
of the material support statute, 18 U.S.C. §2339B (a) (1),41 proscribing the
provision of material support to organizations declared by the Secretary
of State as foreign terrorist organizations. They claimed that they
intended to provide support for the humanitarian and political activities of
two such organizations.
36
Prevailing American jurisprudence allows an adjudication on the merits
when an anticipatory petition clearly shows that the challenged prohibition
forbids the conduct or activity that a petitioner seeks to do, as there would
then be a justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to
show that the challenged provisions of RA 9372 forbid constitutionally
protected conduct or activity that they seek to do. No demonstrable threat
has been established, much less a real and existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly
being tagged as "communist fronts" in no way approximate a credible
threat of prosecution. From these allegations, the Court is being lured to
render an advisory opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then
again, declaratory actions characterized by "double contingency," where
both the activity the petitioners intend to undertake and the anticipated
reaction to it of a public official are merely theorized, lie beyond judicial
review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail
to take the present petitions out of the realm of the surreal and merely
imagined. Such possibility is not peculiar to RA 9372 since the exercise
of any power granted by law may be abused.45 Allegations of abuse must
be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and
enforceable.
A facial invalidation of a statute is allowed only in free speech
cases, wherein certain rules of constitutional litigation are rightly
excepted
Petitioners assail for being intrinsically vague and impermissibly broad
the definition of the crime of terrorism46under RA 9372 in that terms like
"widespread and extraordinary fear and panic among the populace" and
"coerce the government to give in to an unlawful demand" are nebulous,
leaving law enforcement agencies with no standard to measure the
prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-
vagueness and overbreadth find no application in the present case since
these doctrines apply only to free speech cases; and that RA 9372
regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is
imperative to outline the schools of thought on whether the void-for-
vagueness and overbreadth doctrines are equally applicable grounds to
assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of
limiting the application of the two doctrines to free speech cases. They
particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v.
Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word
"intervene" in Section 549 of the Anti-Graft and Corrupt Practices Act was
intrinsically vague and impermissibly broad. The Court stated that "the
overbreadth and the vagueness doctrines have special application only to
free-speech cases," and are "not appropriate for testing the validity of
penal statutes."50 It added that, at any rate, the challenged provision,
under which the therein petitioner was charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on
Elections,52 the Court stated that a facial invalidation of criminal statutes
is not appropriate, it nonetheless proceeded to conduct a vagueness
analysis, and concluded that the therein subject election offense53 under
the Voter’s Registration Act of 1996, with which the therein petitioners
were charged, is couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of
Justice Vicente V. Mendoza in the Estradacase, where the Court found
the Anti-Plunder Law (Republic Act No. 7080) clear and free from
ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two
doctrines to the concept of a "facial" invalidation as opposed to an "as-
applied" challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its validity.
The pertinent portion of the Concurring Opinion of Justice Mendoza,
which was quoted at length in the main Estrada decision, reads:
37
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity." The possible harm
to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment." In Broadrick v. Oklahoma, the
Court ruled that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." As for
the vagueness doctrine, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might
be unconstitutional." As has been pointed out, "vagueness challenges in
the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the
Court whose activities are constitutionally protected. It constitutes a
departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in
sterile abstract contexts. But, as the U.S. Supreme Court pointed out
in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly and
only as a last resort," and is generally disfavored. In determining the
constitutionality of a statute, therefore, its provisions which are alleged to
have been violated in a case must be examined in the light of the conduct
with which the defendant is charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the
overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of
due process of law) or a speech regulation (under a claim of abridgement
of the freedom of speech and cognate rights).
38
To be sure, the doctrine of vagueness and the doctrine of overbreadth do
not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.57 The overbreadth doctrine, meanwhile,
decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms.58
As distinguished from the vagueness doctrine, the overbreadth doctrine
assumes that individuals will understand what a statute prohibits and will
accordingly refrain from that behavior, even though some of it is
protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers
only extant facts affecting real litigants, a facialinvalidation is an
examination of the entire law, pinpointing its flaws and defects, not only
on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or
activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring
opinion that the vagueness and overbreadth doctrines, as grounds for a
facial challenge, are not applicable to penal laws. A litigant cannot thus
successfully mount a facial challenge against a criminal statute on either
vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by
the aim to avert the "chilling effect" on protected speech, the exercise of
which should not at all times be abridged.62 As reflected earlier, this
rationale is inapplicable to plain penal statutes that generally bear an "in
terrorem effect" in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered
innocent and lawful, so long as it refrains from diminishing or dissuading
the exercise of constitutionally protected rights.63
The Court reiterated that there are "critical limitations by which a criminal
statute may be challenged" and "underscored that an ‘on-its-face’
invalidation of penal statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially
challenged. Under no case may ordinary penal statutes be subjected to a
facial challenge. The rationale is obvious. If a facial challenge to a penal
statute is permitted, the prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed,
would effectively go against the grain of the doctrinal requirement of an
existing and concrete controversy before judicial power may be
appropriately exercised. A facial challenge against a penal statute is, at
best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my
opposition to the allowance of a facial challenge to attack penal statutes,
such a test will impair the State’s ability to deal with crime. If warranted,
there would be nothing that can hinder an accused from defeating the
State’s power to prosecute on a mere showing that, as applied to third
parties, the penal statute is vague or overbroad, notwithstanding that the
law is clear as applied to him.65 (Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth
doctrine is limited to a facial kind of challenge and, owing to the
given rationale of a facial challenge, applicable only to free speech
cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial
type of invalidation in order to plot areas of protected speech, inevitably
almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise
stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the
litigants.
The most distinctive feature of the overbreadth technique is that it marks
an exception to some of the usual rules of constitutional litigation.
Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the
39
unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are
not permitted to raise the rights of third parties and can only assert their
own interests. In overbreadth analysis, those rules give way; challenges
are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s "very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.66 (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in
at least two cases,67 observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the limited context of the First
Amendment,68 and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely,
if ever, will an overbreadth challenge succeed against a law or regulation
that is not specifically addressed to speech or speech-related conduct.
Attacks on overly broad statutes are justified by the "transcendent value
to all society of constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as
applied to petitioners, a limited vagueness analysis of the definition of
"terrorism" in RA 9372 is legally impermissible absent an actual or
imminent chargeagainst them
While Estrada did not apply the overbreadth doctrine, it did not preclude
the operation of the vagueness test on the Anti-Plunder Law as applied to
the therein petitioner, finding, however, that there was no basis to review
the law "on its face and in its entirety."72 It stressed that "statutes found
vague as a matter of due process typically are invalidated only 'as
applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do
not involve the First Amendment must be examined in light of the specific
facts of the case at hand and not with regard to the statute's facial
validity."
For more than 125 years, the US Supreme Court has evaluated
defendants’ claims that criminal statutes are unconstitutionally vague,
developing a doctrine hailed as "among the most important guarantees of
liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the
due process clause has been utilized in examining the constitutionality of
criminal statutes. In at least three cases,76 the Court brought the doctrine
into play in analyzing an ordinance penalizing the non-payment of
municipal tax on fishponds, the crime of illegal recruitment punishable
under Article 132(b) of the Labor Code, and the vagrancy provision under
Article 202 (2) of the Revised Penal Code. Notably, the petitioners in
these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the
therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to
permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3
of RA 9372, the following elements may be culled: (1) the offender
commits an act punishable under any of the cited provisions of the
Revised Penal Code, or under any of the enumerated special penal laws;
(2) the commission of the predicate crime sows and creates a condition
of widespread and extraordinary fear and panic among the populace; and
(3) the offender is actuated by the desire to coerce the government to
give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law
penalizes speech, petitioners contend that the element of "unlawful
demand" in the definition of terrorism77 must necessarily be transmitted
through some form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize
is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must
first be a predicate crime actually committed to trigger the operation of
the key qualifying phrases in the other elements of the crime, including
the coercion of the government to accede to an "unlawful demand."
Given the presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition cannot
recategorize the unprotected conduct into a protected speech.
40
Petitioners’ notion on the transmission of message is entirely inaccurate,
as it unduly focuses on just one particle of an element of the crime.
Almost every commission of a crime entails some mincing of words on
the part of the offender like in declaring to launch overt criminal acts
against a victim, in haggling on the amount of ransom or conditions, or in
negotiating a deceitful transaction. An analogy in one U.S.
case78 illustrated that the fact that the prohibition on discrimination in
hiring on the basis of race will require an employer to take down a sign
reading "White Applicants Only" hardly means that the law should be
analyzed as one regulating speech rather than conduct.
prosecution" and "should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge
nor a credible threat of prosecutionunder RA 9372. Even a limited
vagueness analysis of the assailed definition of "terrorism" is thus legally
impermissible. The Court reminds litigants that judicial power neither
contemplates speculative counseling on a statute’s future effect on
hypothetical scenarios nor allows the courts to be used as an extension
of a failed legislative lobbying in Congress.

Utterances not elemental but inevitably incidental to the doing of the WHEREFORE, the petitions are DISMISSED.
criminal conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not SO ORDERED.
speech. This holds true a fortiori in the present case where the
expression figures only as an inevitable incident of making the element of
CONCHITA CARPIO MORALES
coercion perceptible.
Associate Justice
[I]t is true that the agreements and course of conduct here were as in
WE CONCUR:
most instances brought about through speaking or writing. But it has
never been deemed an abridgement of freedom of speech or press to
make a course of conduct illegal merely because the conduct was, in RENATO C. CORONA
part, initiated, evidenced, or carried out by means of language, either Chief Justice
spoken, written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it practically
PRESBITERO J. VELASCO,
impossible ever to enforce laws against agreements in restraint of trade ANTONIO T. CARPIO
as well as many other agreements and conspiracies deemed injurious to JR.
Associate Justice
society.79 (italics and underscoring supplied) Associate Justice

Certain kinds of speech have been treated as unprotected conduct,

because they merely evidence a prohibited conduct.80 Since speech is ANTONIO EDUARDO B.
not involved here, the Court cannot heed the call for a facial analysis. ARTURO D. BRION
1avvphi1

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

In Holder, on the other hand, the US Supreme Court allowed the pre-
enforcement review of a criminal statute, challenged on vagueness
grounds, since the therein plaintiffs faced a "credible threat of
41

LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL
CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA,
JR.
Associate Justice
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION

BELLOSILLO, J.:
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of
his pen in defense of the rights of the individual from the vast powers of
the State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the
MARIA LOURDES P. A. SERENO State cannot tread - asserting that "individual spontaneity" must be
Associate Justice allowed to flourish with very little regard to social interference - he
veritably acknowledges that the exercise of rights and liberties is imbued
CERTIFICATION with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -
Pursuant to Section 13, Article VIII of the Constitution, I hereby certify
that the conclusions in the above Decision had been reached in The sole end for which mankind is warranted, individually or collectively,
consultation before the case was assigned to the writer of the opinion of in interfering with the liberty of action of any of their number, is self-
the Court. protection. The only purpose for which power can be rightfully exercised
over any member of a civilized community, against his will, is to prevent
harm to others.
RENATO C. CORONA
Chief Justice
Parallel to individual liberty is the natural and illimitable right of the State
to self-preservation. With the end of maintaining the integrity and
cohesiveness of the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.

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, 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 the
expression of the will of the State, and the zealous attempts by its
EN BANC members to preserve their individuality and dignity, inevitably followed. It

42
is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
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 that the
assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because, according to him, (a) it
suffers from the vice of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it abolishes the element
of mens rea in crimes already punishable under The Revised Penal
Code, all of which are purportedly clear violations of the fundamental
rights of the accused to due process and to be informed of the nature and
cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to
have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4
which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar
schemes:
(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,
percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
(6) By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by 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 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
participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances as provided by
the Revised Penal Code shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor of the State (underscoring
supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or
conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
43
Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, 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
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical
Standards for Public Officials and Employees); (d) Crim. Case No. 26564,
for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case
No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA
6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the
case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an opportunity to file
counter-affidavits and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of
the charges and the vagueness of the law under which they are charged
were never raised in that Omnibus Motion thus indicating the explicitness
and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution
in Crim. Case No. 26558 finding that "a probable cause for the offense of
PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was
denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim.
Case No. 26558 on the ground that the facts alleged therein did not
constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply to the Opposition.
On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b)
The Plunder Law requires less evidence for proving the predicate crimes
of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity
of legislation is predicated on the basic principle that a legislative
measure is presumed to be in harmony with the Constitution.3 Courts
invariably train their sights on this fundamental rule whenever a
legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality
takes its bearings on the idea that it is forbidden for one branch of the
government to encroach upon the duties and powers of another. Thus it
has been said that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly
rest, the courts must assume that the legislature is ever conscious 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 is right and
advancing the welfare of the majority. Hence in determining whether the
acts of the legislature are in tune with the fundamental law, courts should
proceed with judicial restraint and act with caution and forbearance.
Every intendment of the law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether
an interpretation is fairly possible to sidestep the question of
constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as
there is some basis for the decision of the court, the constitutionality of
the challenged law will not be touched and the case will be decided on
other available grounds. Yet the force of the presumption is not sufficient
to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck
down on sight lest the positive commands of the fundamental law be
unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on
the party challenging the validity of the statute. He must demonstrate
beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As
44
tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner
has miserably failed in the instant case to discharge his burden and
overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to determine
the nature of his violation. Section 2 is sufficiently explicit in its description
of the acts, conduct and conditions required or forbidden, and prescribes
the elements of the crime with reasonable certainty and particularity.
Thus -
1. That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired ill-gotten wealth
through a combination or series of the following overt or criminal
acts: (a) through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (b) by
receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the National Government or
any of its subdivisions, agencies or instrumentalities of
Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest
or participation including the promise of future employment in any
business enterprise or undertaking; (e) by establishing
agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or (f) by
taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten
wealth amassed, accumulated or acquired is at least
₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable
to its penalties, its validity will be sustained. It must sufficiently guide the
judge in its application; the counsel, in defending one charged with its
violation; and more importantly, the accused, in identifying the realm of
the proscribed conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00
through a series or combination of acts enumerated in Sec. 1, par. (d), of
the Plunder Law.
In fact, the amended Information itself closely tracks the language of the
law, indicating with reasonable certainty the various elements of the
offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose
'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. 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 amended by Sec. 12 of R.A. No. 7659, committed as
follows:
That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there
willfully, unlawfully and criminally amass, accumulate and acquire BY
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS(₱4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
45
THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF
THE PHILIPPINES, through ANY OR A combination OR A series of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described
as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM
OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM
OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection
with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN
DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS
OR THEIR PERSONAL gain and benefit, public funds in the
amount of ONE HUNDRED THIRTY MILLION PESOS
(₱130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS
(₱200,000,000.00) tobacco excise tax share allocated for the
province of Ilocos Sur under R.A. No. 7171, by himself and/or in
connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS
ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
FIFTY CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE
OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50);
AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH
JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (₱189,700,000.00) MORE OR LESS, FROM THE
BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR LESS THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS
(₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER
HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-
PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there
is obviously none - that will confuse petitioner in his defense. Although
subject to proof, these factual assertions clearly show that the elements
of the crime are easily understood and provide adequate contrast
between the innocent and the prohibited acts. Upon such unequivocal
assertions, petitioner is completely informed of the accusations against
him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
phrase "a combination or series of overt or criminal acts" found in Sec. 1,
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
according to petitioner, render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining
46
them;6 much less do we have to define every word we use. Besides, there REP. ISIDRO: Series.
is no positive constitutional or statutory command requiring the legislature
to define each and every word in an enactment. Congress is not REP. GARCIA: Yeah, we include series.
restricted in the form of expression of its will, and its inability to so define
the words employed in a statute will not necessarily result in the REP. ISIDRO: But we say we begin with a combination.
vagueness or ambiguity of the law so long as the legislative will is clear,
or at least, can be gathered from the whole act, which is distinctly
REP. GARCIA: Yes.
expressed in the Plunder Law.
REP. ISIDRO: When we say combination, it seems that -
Moreover, it is a well-settled principle of legal hermeneutics that words of
a statute will be interpreted in their natural, plain and ordinary acceptation
and signification,7 unless it is evident that the legislature intended a REP. GARCIA: Two.
technical or special legal meaning to those words.8 The intention of the
lawmakers - who are, ordinarily, untrained philologists and lexicographers REP. ISIDRO: Not only two but we seem to mean that two of the
- to use statutory phraseology in such a manner is always presumed. enumerated means not twice of one enumeration.
Thus, Webster's New Collegiate Dictionary contains the following
commonly accepted definition of the words "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
obscure individual characters. REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

Series - a number of things or events of the same class coming one after REP. ISIDRO: So in other words, that’s it. When we say combination, we
another in spatial and temporal succession. 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 or REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
the Plunder Law:
REP. GARCIA: A series.
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7
May 1991
REP. ISIDRO: That’s not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say THROUGH A COMBINATION OR SERIES OF OVERT OR REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now is why, I said, that is a very good suggestion because if it is only one act,
when we say combination, we actually mean to say, if there are two or it may fall under ordinary crime but we have here a combination or series
more means, we mean to say that number one and two or number one of overt or criminal acts. So x x x x
and something else are included, how about a series of the same act?
For example, through misappropriation, conversion, misuse, will these be
included also? REP. GARCIA: Series. One after the other eh di....

REP. GARCIA: Yeah, because we say a series. SEN. TANADA: So that would fall under the term "series?"
47
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one"
or maybe even "two" acts may already result in such a big amount, on
line 25, would the Sponsor consider deleting the words "a series of overt
or," to read, therefore: "or conspiracy COMMITTED by criminal acts such
as." Remove the idea of necessitating "a series." Anyway, the criminal
acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of
the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many;
two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted
under the particular crime. But when we say "acts of plunder" there
should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing
laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at
least two (2) acts falling under different categories of enumeration
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
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more
overt or criminal acts falling under the same category of enumeration
found in Sec. 1, par. (d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in
specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in relation
to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in subsections
(1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the 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 must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan
of action or method' which the principal accused and public officer and
others conniving with him follow to achieve the aforesaid common goal.
In the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or criminal
acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine
is manifestly misplaced. The doctrine has been formulated in various
48
ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.12 It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr.
Justice Vicente V. Mendoza during the deliberations of the Court that the
allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids
or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law."13 The
overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity."15 The possible harm
to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment."16 In Broadrick v. Oklahoma,17 the
Court ruled that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid."18 As
for the vagueness doctrine, it is said that a litigant may challenge a
49
statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of
others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might
be unconstitutional."20 As has been pointed out, "vagueness challenges in
the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant."21 Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the
Court whose activities are constitutionally protected.22 It constitutes a
departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in
sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out
in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly and
only as a last resort,"25 and is generally disfavored.26 In determining the
constitutionality of a statute, therefore, its provisions which are alleged to
have been violated in a case must be examined in the light of the conduct
with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none
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 the
law. Every provision of the law should be construed in relation and with
reference to every other part. To be sure, it will take more than nitpicking
to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of
what the Plunder Law is all about. Being one of the Senators who voted
for its passage, petitioner must be aware that the law was extensively
deliberated upon by the Senate and its appropriate committees by reason
of which he even registered his affirmative vote with full knowledge of its
legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be 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 so imperfect
and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague.
Petitioners posited, among others, that the term "unwarranted" is highly
imprecise and elastic with no common law meaning or settled definition
by prior judicial or administrative precedents; that, for its vagueness, Sec.
3, par. (e), violates due process in that it does not give fair warning or
sufficient notice of what it seeks to penalize. Petitioners further argued
that the Information charged them with three (3) distinct offenses, to wit:
(a) giving of "unwarranted" benefits through manifest partiality; (b) giving
of "unwarranted" benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the
nature and cause of the accusation against them was violated because
they were left to guess which of the three (3) offenses, if not all, they
were being charged and prosecuted.
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 constitutional
defect of vagueness. The phrases "manifest partiality," "evident bad
faith," and "gross and inexcusable negligence" merely describe the
50
different modes by which the offense penalized in Sec. 3, par. (e), of the
statute may be committed, and the use of all these phrases in the same
Information does not mean that the indictment charges three (3) distinct
offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third International
Dictionary, p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F.
Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A
1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public officer
in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as
amended).
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act, which was understood in its primary
and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that
Sec. 4 of the Plunder Law circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern
of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind.
In a criminal prosecution for plunder, as in all other crimes, the accused
always has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State succeeds in
demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt"
standard is indispensable to command the 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 standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his ordinary
affairs has confidence that his government cannot adjudge him guilty of a
criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such
exalted stature in the realm of constitutional law as it gives life to the Due
Process Clause which protects the accused against conviction except
upon proof beyond reasonable doubt of every fact necessary to constitute
the crime with which he is charged.30 The following exchanges between
Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the
deliberations in the floor of the House of Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA
7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law
that what is alleged in the information must be proven beyond reasonable
doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is
less than ₱100 million, but the totality of the crime committed is ₱100
million since there is malversation, bribery, falsification of public
document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to be
proved beyond reasonable doubt is every element of the crime charged.
51
For example, Mr. Speaker, there is an enumeration of the things taken by
the robber in the information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt, but these will not
prevent the conviction of a crime for which he was charged just because,
say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the
element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in
the crime of plunder the totality of the amount is very important, I feel that
such a series of overt criminal acts has to be taken singly. For instance,
in the act of bribery, he was able to accumulate only ₱50,000 and in the
crime of extortion, he was only able to accumulate ₱1 million. Now, when
we add the totality of the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single act, so how can
we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element
beyond reasonable doubt. For example, one essential element of the
crime is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is ₱100 million, then
there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of plunder.
The burden still remains with the prosecution to prove beyond any iota of
doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception of the import
of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a
combination or series which would constitute a pattern and involving an
amount of at least ₱50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by the
accused in furtherance of the overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing
that the accused is charged in an Information for plunder with having
committed fifty (50) raids on the public treasury. The prosecution need
not prove all these fifty (50) raids, it being sufficient to prove by pattern at
least two (2) of the raids beyond reasonable doubt provided only that they
amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-
product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for
a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme
or conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his
submission that "pattern" is "a very important element of the crime of
plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it the
accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of
Evidence if there is proof beyond reasonable doubt of the commission of
the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime
are proved beyond reasonable doubt without applying Section 4, can you
not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4
in convicting an accused charged for violation of the Plunder Law?
52
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4
when there is proof beyond reasonable doubt on the acts charged
constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the
crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt
insofar as the predicate crimes charged are concerned that you do not
have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a
very important element of the crime of plunder and that cannot be
avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder x x x x
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in
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
without invoking Sec. 4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient evidence to engender
that moral certitude exacted by the fundamental law to prove 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 advanced
by petitioner, it may simply be severed from the rest of the provisions
without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be
achieved.
As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus, he
says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is
noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus alleges
guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void, petitioner
cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict
him would not be evidence for each and every individual criminal act but
only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it 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 this kind
of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
53
Senator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the
said public officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however, that it does not
apply as well to the public officer as principal in the crime. As Justice
Holmes said: "We agree to all the generalities about not supplying
criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in
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
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36
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 or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder,
rape, parricide, infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the
victim is a minor, robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or occupant of
the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme of
the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that so
deeply entrenched itself in the structures of society and the psyche of the
populace. [With the government] terribly lacking the money to provide
even the most basic services to its people, any form of misappropriation
or misapplication of government funds translates 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 less heinous are the effects
and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials,
employees or officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se37 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 mainly mala in se. Indeed,
it would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check Law (B.P. Blg.
22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the
amendatory law of RA 7080, on constitutional grounds. Suffice it to say
however that it is now too late in the day for him to resurrect this long
dead issue, the same having been eternally consigned by People v.
54
Echegaray38 to the archives of jurisprudential history. The declaration of
this Court therein that RA 7659 is constitutionally valid stands as a
declaration of the State, and becomes, by necessary effect, assimilated
in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very
foundation. The anatomy of graft and corruption has become more
elaborate in the corridors of time as unscrupulous people relentlessly
contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the
increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional fiber of our nation. The
Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this
nation, few issues of national importance can equal the amount of
interest and passion generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial under a virginal
statute. This continuing 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 rise above factionalism and prejudices, shall
we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise
known as the Plunder Law, as amended by RA 7659, is
CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J.
Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see
dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45127 May 5, 1989
PEOPLE OF THE PHILIPPINES, represented by the Provincial Fiscal
of Leyte, petitioner,
vs.
HON. JUDGE AUXENCIO C. DACUYCUY, CELESTINO S. MATONDO,
SEGUNDINO A, CAVAL and CIRILO M. ZANORIA, respondents.
The Office of the Solicitor General for petitioner.
Adelino B. Sitoy for private respondents.
REGALADO, J.:
Involved in this special civil action is the unique situation, to use an
euphemistic phrase, of an alternative penal sanction of imprisonment
imposed by law but without a specification as to the term or duration
thereof.
As a consequence of such legislative faux pas or oversight, the petition at
bar seeks to set aside the decision of the then Court of First Instance of
Leyte, Branch IV, dated September 8,1976, 1 penned by herein
respondent judge and granting the petition for certiorari and prohibition
with preliminary injunction filed by herein private respondents and
docketed therein as Civil Case No. 5428, as well as his resolution of
October 19, 1976 2denying the motions for reconsideration filed by the
parties therein. Subject of said decision were the issues on jurisdiction
over violations of Republic Act No. 4670, otherwise known as the Magna
Carta for Public School Teachers, and the constitutionality of Section 32
thereof.
55
In a complaint filed by the Chief of Police of Hindang, Leyte on April 4,
1975, herein private respondents Celestino S. Matondo, Segundino A.
Caval and Cirilo M. Zanoria, public school officials of Leyte, were charged
before the Municipal Court of Hindang, Leyte in Criminal Case No. 555
thereof for violation of Republic Act No. 4670. The case was set for
arraignment and trial on May 29, 1975. At the arraignment, the herein
private respondents, as the accused therein, pleaded not guilty to the
charge. Immediately thereafter, they orally moved to quash the complaint
for lack of jurisdiction over the offense allegedly due to the correctional
nature of the penalty of imprisonment prescribed for the offense. The
motion to quash was subsequently reduced to writing on June 13,
1975. 3 On August 21, 1975, the municipal court denied the motion to
quash for lack of merit. 4 On September 2, 1975, private respondents filed
a motion for the reconsideration of the aforesaid denial order on the same
ground of lack of jurisdiction, but with the further allegation that the facts
charged do not constitute an offense considering that Section 32 of
Republic Act No. 4670 is null and void for being unconstitutional. In an
undated order received by the counsel for private respondents on
October 20,1975, the motion for reconsideration was denied. 5
On October 26, 1975, private respondents filed a petitions 6 for certiorari
and prohibition with preliminary injunction before the former Court of First
Instance of Leyte, Branch VIII, where it was docketed as Civil Case No.
B-622, to restrain the Municipal Judge, Provincial Fiscal and Chief of
Police of Hindang, Leyte from proceeding with the trial of said Criminal
Case No. 555 upon the ground that the former Municipal Court of
Hindang had no jurisdiction over the offense charged. Subsequently, an
amended petition 7 alleged the additional ground that the facts charged do
not constitute an offense since the penal provision, which is Section 32 of
said law, is unconstitutional for the following reasons: (1) It imposes a
cruel and unusual punishment, the term of imprisonment being unfixed
and may run to reclusion perpetua; and (2) It also constitutes an undue
delegation of legislative power, the duration of the penalty of
imprisonment being solely left to the discretion of the court as if the latter
were the legislative department of the Government.
On March 30, 1976, having been advised that the petition of herein
private respondents was related to Criminal Case No. 1978 for violation
of Presidential Decree No. 442 previously transferred from Branch VIII to
Branch IV of the erstwhile Court of First Instance of Leyte, Judge
Fortunate B. Cuna of the former branch transferred the said petition to
the latter branch for further proceedings and where it was subsequently
docketed therein as Civil Case No. 5428. 8 On March 15, 1976, the
petitioner herein filed an opposition to the admission of the said amended
petitions 9 but respondent judge denied the same in his resolution of April
20, 1976. 10 On August 2, 1976, herein petitioner filed a supplementary
memorandum in answer to the amended petition. 11
On September 8, 1976, respondent judge rendered the aforecited
challenged decision holding in substance that Republic Act No. 4670 is
valid and constitutional but cases for its violation fall outside of the
jurisdiction of municipal and city courts, and remanding the case to the
former Municipal Court of Hindang, Leyte only for preliminary
investigation.
As earlier stated, on September 25, 1976, petitioner filed a motion for
reconsideration. 12 Likewise, private respondents filed a motion for
reconsideration of the lower court's decision but the same was limited
only to the portion thereof which sustains the validity of Section 32 of
Republic Act No. 4670. 13 Respondent judge denied both motions for
reconsideration in a resolution dated October 19, 1976. 14
The instant petition to review the decision of respondent judge poses the
following questions of law: (1) Whether the municipal and city courts have
jurisdiction over violations of Republic Act No. 4670; and (2) Whether
Section 32 of said Republic Act No. 4670 is constitutional.
We shall resolve said queries in inverse order, since prior determination
of the constitutionality of the assailed provision of the law involved is
necessary for the adjudication of the jurisdictional issue raised in this
petition.
1. The disputed section of Republic Act No. 4670
provides:
Sec. 32. Penal Provision. — A person who shall wilfully
interfere with, restrain or coerce any teacher in the
exercise of his rights guaranteed by this Act or who shall
in any other manner commit any act to defeat any of the
provisions of this Act shall, upon conviction, be punished
by a fine of not less than one hundred pesos nor more
than one thousand pesos, or by imprisonment, in the
discretion of the court. (Emphasis supplied).
Two alternative and distinct penalties are consequently imposed, to wit:
(a) a fine ranging from P100.00 to P1,000.00; or (b) imprisonment. It is
56
apparent that the law has no prescribed period or term for the imposable
penalty of imprisonment. While a minimum and maximum amount for the
penalty of fine is specified, there is no equivalent provision for the penalty
of imprisonment, although both appear to be qualified by the phrase "in
the discretion of the court.
Private respondents contend that a judicial determination of what
Congress intended to be the duration of the penalty of imprisonment
would be violative of the constitutional prohibition against undue
delegation of legislative power, and that the absence of a provision on the
specific term of imprisonment constitutes that penalty into a cruel and
unusual form of punishment. Hence, it is vigorously asserted, said
Section 32 is unconstitutional.
The basic principle underlying the entire field of legal concepts pertaining
to the validity of legislation is that in the enactment of legislation a
constitutional measure is thereby created. In every case where a
question is raised as to the constitutionality of an act, the court employs
this doctrine in scrutinizing the terms of the law. In a great volume of
cases, the courts have enunciated the fundamental rule that there is a
presumption in favor of the constitutionality of a legislative enactment. 15
It is contended that Republic Act No. 4670 is unconstitutional on the
ground that the imposable but indefinite penalty of imprisonment provided
therein constitutes a cruel and unusual punishment, in defiance of the
express mandate of the Constitution. This contention is inaccurate and
should be rejected.
We note with approval the holding of respondent judge that —
The rule is established beyond question that a
punishment authorized by statute is not cruel or unusual
or disproportionate to the nature of the offense unless it is
a barbarous one unknown to the law or so wholly
disproportionate to the nature of the offense as to shock
the moral sense of the community. Based on the principle,
our Supreme Court has consistently overruled contentions
of the defense that the punishment of fine or
imprisonment authorized by the statute involved is cruel
and unusual. (Legarda vs. Valdez, 1 Phil. 146; U.S. vs.
Pico, 18 Phil. 386; People vs. Garay, 2 ACR 149; People
vs. Estoista 93 Phil. 647; People vs. Tiu Ua. 96 Phil. 738;
People vs. Dionisio, 22 SCRA 1299). The language of our
Supreme Court in the first of the cases it decided after the
last world war is appropriate here:
The Constitution directs that 'Excessive
fines shall not be imposed, nor cruel and
unusual punishment inflicted.' The
prohibition of cruel and unusual
punishments is generally aimed at the
form or character of the punishment rather
than its severity in respect of duration or
amount, and apply to punishments which
never existed in America, or which public
sentiment has regarded as cruel or
obsolete (15 Am. Jur., p. 172), for
instance there (sic) inflicted at the
whipping post, or in the pillory, burning at
the stake, breaking on the wheel,
disemboweling, and the like (15 Am. Jur.
Supra, Note 35 L.R.A. p. 561). Fine and
imprisonment would not thus be within the
prohibition.' (People vs. de la Cruz, 92
Phil. 906). 16
The question that should be asked, further, is whether the constitutional
prohibition looks only to the form or nature of the penalty and not to the
proportion between the penalty and the crime.
The answer thereto may be gathered from the pronouncement in People
vs. Estoista, 17 where an "excessive" penalty was upheld as constitutional
and was imposed but with a recommendation for executive clemency,
thus:
... If imprisonment from 5 to 10 years is out of proportion
to the present case in view of certain circumstances, the
law is not to be declared unconstitutional for this reason.
The constitutionality of an act of the legislature is not to be
judged in the light of exceptional cases. Small
transgressors for which the heavy net was not spread are,
like small fishes, bound to be caught, and it is to meet
such a situation as this that courts are advised to make a
recommendation to the Chief Executive for clemency or
reduction of the penalty...
57
That the penalty is grossly disproportionate to the crime is an insufficient
basis to declare the law unconstitutional on the ground that it is cruel and
unusual. The fact that the punishment authorized by the statute is severe
does not make it cruel or unusual. 18 In addition, what degree of
disproportion the Court will consider as obnoxious to the Constitution has
still to await appropriate determination in due time since, to the credit of
our legislative bodies, no decision has as yet struck down a penalty for
being "cruel and unusual" or "excessive."
We turn now to the argument of private respondents that the entire penal
provision in question should be invalidated as an 49 "undue delegation of
legislative power, the duration of penalty of imprisonment being solely left
to the discretion of the court as if the lattter were the legislative
department of the government."
Petitioner counters that the discretion granted therein by the legislature to
the courts to determine the period of imprisonment is a matter of statutory
construction and not an undue delegation of legislative power. It is
contended that the prohibition against undue delegation of legislative
power is concerned only with the delegation of power to make laws and
not to interpret the same. It is also submitted that Republic Act No. 4670
vests in the courts the discretion, not to fix the period of imprisonment,
but to choose which of the alternative penalties shall be imposed.
Respondent judge sustained these theses of petitioner on his theory that
"the principle of separation of powers is not violated by vesting in courts
discretion as to the length of sentence or amount of fine between
designated limits in sentencing persons convicted of crime. In such
instance, the exercise of judicial discretion by the courts is not an attempt
to use legislative power or to prescribe and create a law but is an
instance of the administration of justice and the application of existing
laws to the facts of particular cases." 19 What respondent judge obviously
overlooked is his own reference to penalties "between designated limits."
In his commentary on the Constitution of the United States, Corwin wrote:
.. At least three distinct ideas have contributed to the
development of the principle that legislative power cannot
be delegated. One is the doctrine of separation of powers:
Why go to the trouble of separating the three powers of
government if they can straightway remerge on their own
motion? The second is the concept of due process of laws
which precludes the transfer of regulatory functions to
private persons. Lastly, there is the maxim of agency
"Delegata potestas non potest delegari." 20
An apparent exception to the general rule forbidding the delegation of
legislative authority to the courts exists in cases where discretion is
conferred upon said courts. It is clear, however, that when the courts are
said to exercise a discretion, it must be a mere legal discretion which is
exercised in discerning the course prescribed by law and which, when
discerned, it is the duty of the court to follow. 21
So it was held by the Supreme Court of the United States that the
principle of separation of powers is not violated by vesting in courts
discretion as to the length of sentence or the amount of fine between
designated limits in sentencing persons convicted of a crime. 22
In the case under consideration, the respondent judge erronneously
assumed that since the penalty of imprisonment has been provided for by
the legislature, the court is endowed with the discretion to ascertain the
term or period of imprisonment. We cannot agree with this postulate. It is
not for the courts to fix the term of imprisonment where no points of
reference have been provided by the legislature. What valid delegation
presupposes and sanctions is an exercise of discretion to fix the length of
service of a term of imprisonment which must be encompassed within
specific or designated limits provided by law, the absence of which
designated limits well constitute such exercise as an undue delegation, if
not-an outright intrusion into or assumption, of legislative power.
Section 32 of Republic Act No. 4670 provides for an indeterminable
period of imprisonment, with neither a minimum nor a maximum duration
having been set by the legislative authority. The courts are thus given a
wide latitude of discretion to fix the term of imprisonment, without even
the benefit of any sufficient standard, such that the duration thereof may
range, in the words of respondent judge, from one minute to the life span
of the accused. Irremissibly, this cannot be allowed. It vests in the courts
a power and a duty essentially legislative in nature and which, as applied
to this case, does violence to the rules on separation of powers as well as
the non-delegability of legislative powers. This time, the preumption of
constitutionality has to yield.
On the foregoing considerations, and by virtue of the separability clause
in Section 34 of Republic Act No. 4670, the penalty of imprisonment
provided in Section 32 thereof should be, as it is hereby, declared
unconstitutional.
58
It follows, therefore, that a ruling on the proper interpretation of the actual
term of imprisonment, as may have been intended by Congress, would
be pointless and academic. It is, however, worth mentioning that the
suggested application of the so-called rule or principle of parallelism,
whereby a fine of P1,000.00 would be equated with one year of
imprisonment, does not merit judicial acceptance. A fine, whether
imposed as a single or as an alternative penalty, should not and cannot
be reduced or converted into a prison term; it is to be considered as a
separate and independent penalty consonant with Article 26 of the
Revised Penal Code. 23 It is likewise declared a discrete principal penalty
in the graduated scales of penalties in Article 71 of said Code. There is
no rule for transmutation of the amount of a fine into a term of
imprisonment. Neither does the Code contain any provision that a fine
when imposed in conjunction with imprisonment is subordinate to the
latter penalty. In sum, a fine is as much a principal penalty as
imprisonment. Neither is subordinate to the other. 24
2. It has been the consistent rule that the criminal jurisdiction of the court
is determined by the statute in force at the time of the commencement of
the action. 25
With the deletion by invalidation of the provision on imprisonment in
Section 32 of Republic Act No. 4670, as earlier discussed, the imposable
penalty for violations of said law should be limited to a fine of not less
than P100.00 and not more than P1,000.00, the same to serve as the
basis in determining which court may properly exercise jurisdiction
thereover. When the complaint against private respondents was filed in
1975, the pertinent law then in force was Republic Act No. 296, as
amended by Republic Act No. 3828, under which crimes punishable by a
fine of not more than P 3,000.00 fall under the original jurisdiction of the
former municipal courts. Consequently, Criminal Case No. 555 against
herein private respondents falls within the original jurisdiction of the
Municipal Trial Court of Hindang, Leyte.
WHEREFORE, the decision and resolution of respondent judge are
hereby REVERSED and SET ASIDE. Criminal Case No. 555 filed against
private respondents herein is hereby ordered to be remanded to the
Municipal Trial Court of Hindang, Leyte for trial on the merits.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino and
Medialdea, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-64279 April 30, 1984
ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court,
Caloocan City Branch 129, acting for REGIONAL TRIAL COURT of
Camarines Norte, now presided over by JUDGE NICANOR ORIÑO,
Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V.
ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.
AQUINO, J.: ñé+ .£ª wph!1
At issue in this case is the enforceability, before publication in the Official
Gazette of June 14, 1982, of Presidential Executive Order No. 626-A
dated October 25, 1980, providing for the confiscation and forfeiture by
the government of carabaos transported from one province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers,
transported in an Isuzu ten-wheeler truck in the evening of April 2, 1982
twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre
Garcia, Batangas, as the destination.
They were provided with (1) a health certificate from the provincial
veterinarian of Camarines Sur, issued under the Revised Administrative
59
Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of
1974; (2) a permit to transport large cattle issued under the authority of
the provincial commander; and (3) three certificates of inspection, one
from the Constabulary command attesting that the carabaos were not
included in the list of lost, stolen and questionable animals; one from the
LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines
Sur and one from the mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the
carabaos, while passing at Basud, Camarines Norte, were confiscated by
Lieutenant Arnulfo V. Zenarosa, the town's police station commander,
and by Doctor Bella S. Miranda, provincial veterinarian. The confiscation
was basis on the aforementioned Executive Order No. 626-A which
provides "that henceforth, no carabao, regardless of age, sex, physical
condition or purpose and no carabeef shall be transported from one
province to another. The carabaos or carabeef transported in violation of
this Executive Order as amended shall be subject to confiscation and
forfeiture by the government to be distributed ... to deserving farmers
through dispersal as the Director of Animal Industry may see fit, in the
case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of
Basud, and to a farmer from the Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for
replevin for the recovery of the carabaos allegedly valued at P70,000 and
damages of P92,000. The replevin order could not be executed by the
sheriff. In his order of April 25, 1983 Judge Domingo Medina Angeles,
who heard the case at Daet and who was later transferred to Caloocan
City, dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court
and section 25 of the Interim Rules and pursuant to Republic Act No.
5440, a 1968 law which superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be enforced against the
Pesigans on April 2, 1982 because, as already noted, it is a penal
regulation published more than two months later in the Official Gazette
dated June 14, 1982. It became effective only fifteen days thereafter as
provided in article 2 of the Civil Code and section 11 of the Revised
Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes
circulars and regulations which prescribe penalties. Publication is
necessary to apprise the public of the contents of the regulations and
make the said penalties binding on the persons affected thereby. (People
vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils.,
104 Phil. 573; Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica
de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordenes dictadas de conformidad con
las mismas por el Gobierno en uso de su potestad (1 Manresa, Codigo
Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of
having violated Central Bank Circular No. 20 and sentenced to six
months' imprisonment and to pay a fine of P1,000, was acquitted by this
Court because the circular was published in the Official Gazette three
months after his conviction. He was not bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A because
its confiscation and forfeiture provision or sanction makes it a penal
statute. Justice and fairness dictate that the public must be informed of
that provision by means of publication in the Gazette before violators of
the executive order can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30, 1971,
37 SCRA 230 and Philippine Blooming Mills vs. Social Security System,
124 Phil. 499, cited by the respondents, do not involve the enforcement
of any penal regulation.
Commonwealth Act No. 638 requires that all Presidential executive
orders having general applicability should be published in the Official
Gazette. It provides that "every order or document which shag prescribe
a penalty shall be deemed to have general applicability and legal effect."
Indeed, the practice has always been to publish executive orders in the
Gazette. Section 551 of the Revised Administrative Code provides that
even bureau "regulations and orders shall become effective only when
approved by the Department Head and published in the Official Gazette
or otherwise publicly promulgated". (See Commissioner of Civil Service
vs. Cruz, 122 Phil. 1015.)
60
In the instant case, the livestock inspector and the provincial veterinarian
of Camarines Norte and the head of the Public Affairs Office of the
Ministry of Agriculture were unaware of Executive Order No. 626-A. The
Pesigans could not have been expected to be cognizant of such an
executive order.
It results that they have a cause of action for the recovery of the
carabaos. The summary confiscation was not in order. The recipients of
the carabaos should return them to the Pesigans. However, they cannot
transport the carabaos to Batangas because they are now bound by the
said executive order. Neither can they recover damages. Doctor Miranda
and Zenarosa acted in good faith in ordering the forfeiture and dispersal
of the carabaos.
WHEREFORE, the trial court's order of dismissal and the confiscation
and dispersal of the carabaos are reversed and set aside. Respondents
Miranda and Zenarosa are ordered to restore the carabaos, with the
requisite documents, to the petitioners, who as owners are entitled to
possess the same, with the right to dispose of them in Basud or Sipocot,
Camarines Sur. No costs.
SO ORDERED. 1äw phï1.ñët
Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ.,
concur.
De Castro, J., took no part.
FIRST DIVISION
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of
Republic Act No. 6425, otherwise also known as the "Dangerous Drugs
Act of 1972," was filed against petitioner Khosrow Minucher and one
Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City.
The criminal charge followed a "buy-bust operation" conducted by the
Philippine police narcotic agents in the house of Minucher, an Iranian
national, where a quantity of heroin, a prohibited drug, was said to have
been seized. The narcotic agents were accompanied by private
respondent Arthur Scalzo who would, in due time, become one of the
principal witnesses for the prosecution. On 08 January 1988, Presiding
Judge Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the
Regional Trial Court (RTC), Branch 19, of Manila for damages on
account of what he claimed to have been trumped-up charges of drug
trafficking made by Arthur Scalzo. The Manila RTC detailed what it had
found to be the facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He
came to the Philippines to study in the University of the Philippines in
1974. In 1976, under the regime of the Shah of Iran, he was appointed
Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila,
Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini,
plaintiff became a refugee of the United Nations and continued to stay in
the Philippines. He headed the Iranian National Resistance Movement in
the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was
brought to his house and introduced to him by a certain Jose Iñigo, an
informer of the Intelligence Unit of the military. Jose Iñigo, on the other
hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer
for several Iranians whom plaintiff assisted as head of the anti-Khomeini
movement in the Philippines.
61
"During his first meeting with the defendant on May 13, 1986, upon the
introduction of Jose Iñigo, the defendant expressed his interest in buying
caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and
paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
pistachio nuts and other Iranian products was his business after the
Khomeini government cut his pension of over $3,000.00 per month.
During their introduction in that meeting, the defendant gave the plaintiff
his calling card, which showed that he is working at the US Embassy in
the Philippines, as a special agent of the Drug Enforcement
Administration, Department of Justice, of the United States, and gave his
address as US Embassy, Manila. At the back of the card appears a
telephone number in defendant’s own handwriting, the number of which
he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to
obtain a US Visa for his wife and the wife of a countryman named Abbas
Torabian. The defendant told him that he [could] help plaintiff for a fee of
$2,000.00 per visa. Their conversation, however, was more concentrated
on politics, carpets and caviar. Thereafter, the defendant promised to see
plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter
for dinner at Mario's Restaurant at Makati. He wanted to buy 200 grams
of caviar. Plaintiff brought the merchandize but for the reason that the
defendant was not yet there, he requested the restaurant people to x x x
place the same in the refrigerator. Defendant, however, came and plaintiff
gave him the caviar for which he was paid. Then their conversation was
again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's
residence for 18 years at Kapitolyo, Pasig. The defendant wanted to buy
a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did
not yet have the money, they agreed that defendant would come back the
next day. The following day, at 1:00 p.m., he came back with his
$24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him
the pair of carpets.1aw phi 1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came
back again to plaintiff's house and directly proceeded to the latter's
bedroom, where the latter and his countryman, Abbas Torabian, were
playing chess. Plaintiff opened his safe in the bedroom and obtained
$2,000.00 from it, gave it to the defendant for the latter's fee in obtaining
a visa for plaintiff's wife. The defendant told him that he would be leaving
the Philippines very soon and requested him to come out of the house for
a while so that he can introduce him to his cousin waiting in a cab.
Without much ado, and without putting on his shirt as he was only in his
pajama pants, he followed the defendant where he saw a parked cab
opposite the street. To his complete surprise, an American jumped out of
the cab with a drawn high-powered gun. He was in the company of about
30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed
and after about 20 minutes in the street, he was brought inside the house
by the defendant. He was made to sit down while in handcuffs while the
defendant was inside his bedroom. The defendant came out of the
bedroom and out from defendant's attaché case, he took something and
placed it on the table in front of the plaintiff. They also took plaintiff's wife
who was at that time at the boutique near his house and likewise arrested
Torabian, who was playing chess with him in the bedroom and both were
handcuffed together. Plaintiff was not told why he was being handcuffed
and why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his
telephone was unplugged. He asked for any warrant, but the defendant
told him to `shut up.’ He was nevertheless told that he would be able to
call for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to
come out to meet his cousin, his safe was opened where he kept the
$24,000.00 the defendant paid for the carpets and another $8,000.00
which he also placed in the safe together with a bracelet worth
$15,000.00 and a pair of earrings worth $10,000.00. He also discovered
missing upon his release his 8 pieces hand-made Persian carpets,
valued at $65,000.00, a painting he bought for P30,000.00 together with
his TV and betamax sets. He claimed that when he was handcuffed, the
defendant took his keys from his wallet. There was, therefore, nothing left
in his house.
"That his arrest as a heroin trafficker x x x had been well publicized
throughout the world, in various newspapers, particularly in Australia,
America, Central Asia and in the Philippines. He was identified in the
papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television,
not only in the Philippines, but also in America and in Germany. His
friends in said places informed him that they saw him on TV with said
news.
62
"After the arrest made on plaintiff and Torabian, they were brought to
Camp Crame handcuffed together, where they were detained for three
days without food and water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special
appearance for Scalzo and moved for extension of time to file an answer
pending a supposed advice from the United States Department of State
and Department of Justice on the defenses to be raised. The trial court
granted the motion. On 27 October 1988, Scalzo filed another special
appearance to quash the summons on the ground that he, not being a
resident of the Philippines and the action being one in personam, was
beyond the processes of the court. The motion was denied by the court,
in its order of 13 December 1988, holding that the filing by Scalzo of a
motion for extension of time to file an answer to the complaint was a
voluntary appearance equivalent to service of summons which could
likewise be construed a waiver of the requirement of formal notice.
Scalzo filed a motion for reconsideration of the court order, contending
that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not
seek an affirmative relief. Scalzo argued that in cases involving the
United States government, as well as its agencies and officials, a motion
for extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the
defenses to be raised and (2) to refer the case to a Philippine lawyer who
would be expected to first review the case. The court a quo denied the
motion for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there
docketed CA-G.R. No. 17023, assailing the denial. In a decision, dated
06 October 1989, the appellate court denied the petition and affirmed the
ruling of the trial court. Scalzo then elevated the incident in a petition for
review on certiorari, docketed G.R. No. 91173, to this Court. The petition,
however, was denied for its failure to comply with SC Circular No. 1-88; in
any event, the Court added, Scalzo had failed to show that the appellate
court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was
issued (a) declaring Scalzo in default for his failure to file a responsive
pleading (answer) and (b) setting the case for the reception of evidence.
On 12 March 1990, Scalzo filed a motion to set aside the order of default
and to admit his answer to the complaint. Granting the motion, the trial
court set the case for pre-trial. In his answer, Scalzo denied the material
allegations of the complaint and raised the affirmative defenses (a) of
Minucher’s failure to state a cause of action in his complaint and (b) that
Scalzo had acted in the discharge of his official duties as being merely an
agent of the Drug Enforcement Administration of the United States
Department of Justice. Scalzo interposed a counterclaim of P100,000.00
to answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the
civil case, Scalzo filed a motion to dismiss the complaint on the ground
that, being a special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic immunity. He attached to his
motion Diplomatic Note No. 414 of the United States Embassy, dated 29
May 1990, addressed to the Department of Foreign Affairs of the
Philippines and a Certification, dated 11 June 1990, of Vice Consul
Donna Woodward, certifying that the note is a true and faithful copy of its
original. In an order of 25 June 1990, the trial court denied the motion to
dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with
this Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr.,
vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case
No. 88-45691 be ordered dismissed. The case was referred to the Court
of Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s
resolution of 07 August 1990. On 31 October 1990, the Court of Appeals
promulgated its decision sustaining the diplomatic immunity of Scalzo
and ordering the dismissal of the complaint against him. Minucher filed a
petition for review with this Court, docketed G.R. No. 97765 and entitled
"Khosrow Minucher vs. the Honorable Court of Appeals, et. al." (cited in
214 SCRA 242), appealing the judgment of the Court of Appeals. In a
decision, dated 24 September 1992, penned by Justice (now Chief
Justice) Hilario Davide, Jr., this Court reversed the decision of the
appellate court and remanded the case to the lower court for trial. The
remand was ordered on the theses (a) that the Court of Appeals erred in
granting the motion to dismiss of Scalzo for lack of jurisdiction over his
person without even considering the issue of the authenticity of
Diplomatic Note No. 414 and (b) that the complaint contained sufficient
allegations to the effect that Scalzo committed the imputed acts in his
personal capacity and outside the scope of his official duties and, absent
any evidence to the contrary, the issue on Scalzo’s diplomatic immunity
could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17
November 1995, the trial court reached a decision; it adjudged:
63
"WHEREFORE, and in view of all the foregoing considerations, judgment
is hereby rendered for the plaintiff, who successfully established his claim
by sufficient evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory
damages of P520,000.00; moral damages in the sum of P10 million;
exemplary damages in the sum of P100,000.00; attorney's fees in the
sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of
the lien of the Court on this judgment to answer for the unpaid docket
fees considering that the plaintiff in this case instituted this action as a
pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the
evidence presented by him that he was a diplomatic agent entitled to
immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official
duties. On appeal, the Court of Appeals reversed the decision of the trial
court and sustained the defense of Scalzo that he was sufficiently clothed
with diplomatic immunity during his term of duty and thereby immune
from the criminal and civil jurisdiction of the "Receiving State" pursuant to
the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a
two-fold issue: (1) whether or not the doctrine of conclusiveness of
judgment, following the decision rendered by this Court in G.R. No.
97765, should have precluded the Court of Appeals from resolving the
appeal to it in an entirely different manner, and (2) whether or not Arthur
Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res
judicata, would require 1) the finality of the prior judgment, 2) a valid
jurisdiction over the subject matter and the parties on the part of the court
that renders it, 3) a judgment on the merits, and 4) an identity of the
parties, subject matter and causes of action.3 Even while one of the issues
submitted in G.R. No. 97765 - "whether or not public respondent Court of
Appeals erred in ruling that private respondent Scalzo is a diplomat
immune from civil suit conformably with the Vienna Convention on
Diplomatic Relations" - is also a pivotal question raised in the instant
petition, the ruling in G.R. No. 97765, however, has not resolved that
point with finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his
Pre-trial Brief filed on 13 June 1990, unequivocally states that he would
present documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position and duties as
DEA special agent in Manila. Having thus reserved his right to present
evidence in support of his position, which is the basis for the alleged
diplomatic immunity, the barren self-serving claim in the belated motion to
dismiss cannot be relied upon for a reasonable, intelligent and fair
resolution of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to
which the Philippines is a signatory, grants him absolute immunity from
suit, describing his functions as an agent of the United States Drugs
Enforcement Agency as "conducting surveillance operations on
suspected drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and) having ascertained the
target, (he then) would inform the Philippine narcotic agents (to) make the
actual arrest." Scalzo has submitted to the trial court a number of
documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward
dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992;
and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal
Adviser, Department of Foreign Affairs, dated 27 June 1990
forwarding Embassy Note No. 414 to the Clerk of Court of RTC
Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st
Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the
Protocol, Department of Foreign Affairs, through Asst. Sec.
64
 Emmanuel Fernandez, addressed to the Chief Justice of this
Court.5
The documents, according to Scalzo, would show that: (1) the United
States Embassy accordingly advised the Executive Department of the
Philippine Government that Scalzo was a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines
on 14 October 1985 until his departure on 10 August 1988; (2) that the
United States Government was firm from the very beginning in asserting
the diplomatic immunity of Scalzo with respect to the case pursuant to the
provisions of the Vienna Convention on Diplomatic Relations; and (3) that
the United States Embassy repeatedly urged the Department of Foreign
Affairs to take appropriate action to inform the trial court of Scalzo’s
diplomatic immunity. The other documentary exhibits were presented to
indicate that: (1) the Philippine government itself, through its Executive
Department, recognizing and respecting the diplomatic status of Scalzo,
formally advised the "Judicial Department" of his diplomatic status and
his entitlement to all diplomatic privileges and immunities under the
Vienna Convention; and (2) the Department of Foreign Affairs itself
authenticated Diplomatic Note No. 414. Scalzo additionally presented
Exhibits "9" to "13" consisting of his reports of investigation on the
surveillance and subsequent arrest of Minucher, the certification of the
Drug Enforcement Administration of the United States Department of
Justice that Scalzo was a special agent assigned to the Philippines at all
times relevant to the complaint, and the special power of attorney
executed by him in favor of his previous counsel6 to show (a) that the
United States Embassy, affirmed by its Vice Consul, acknowledged
Scalzo to be a member of the diplomatic staff of the United States
diplomatic mission from his arrival in the Philippines on 14 October 1985
until his departure on 10 August 1988, (b) that, on May 1986, with the
cooperation of the Philippine law enforcement officials and in the exercise
of his functions as member of the mission, he investigated Minucher for
alleged trafficking in a prohibited drug, and (c) that the Philippine
Department of Foreign Affairs itself recognized that Scalzo during his tour
of duty in the Philippines (14 October 1985 up to 10 August 1988) was
listed as being an Assistant Attaché of the United States diplomatic
mission and accredited with diplomatic status by the Government of the
Philippines. In his Exhibit 12, Scalzo described the functions of the
overseas office of the United States Drugs Enforcement Agency, i.e., (1)
to provide criminal investigative expertise and assistance to foreign law
enforcement agencies on narcotic and drug control programs upon the
request of the host country, 2) to establish and maintain liaison with the
host country and counterpart foreign law enforcement officials, and 3) to
conduct complex criminal investigations involving international criminal
conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of
centuries-old customary law and, by the time of its ratification on 18 April
1961, its rules of law had long become stable. Among the city states of
ancient Greece, among the peoples of the Mediterranean before the
establishment of the Roman Empire, and among the states of India, the
person of the herald in time of war and the person of the diplomatic envoy
in time of peace were universally held sacrosanct.7 By the end of the 16th
century, when the earliest treatises on diplomatic law were published, the
inviolability of ambassadors was firmly established as a rule of customary
international law.8Traditionally, the exercise of diplomatic intercourse
among states was undertaken by the head of state himself, as being the
preeminent embodiment of the state he represented, and the foreign
secretary, the official usually entrusted with the external affairs of the
state. Where a state would wish to have a more prominent diplomatic
presence in the receiving state, it would then send to the latter a
diplomatic mission. Conformably with the Vienna Convention, the
functions of the diplomatic mission involve, by and large, the
representation of the interests of the sending state and promoting friendly
relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to
include (a) ambassadors or nuncios accredited to the heads of state,10 (b)
envoys,11 ministers or internuncios accredited to the heads of states; and
(c) charges d' affairs12 accredited to the ministers of foreign
affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service
staff. Only the heads of missions, as well as members of the diplomatic
staff, excluding the members of the administrative, technical and service
staff of the mission, are accorded diplomatic rank. Even while the Vienna
Convention on Diplomatic Relations provides for immunity to the
members of diplomatic missions, it does so, nevertheless, with an
understanding that the same be restrictively applied. Only "diplomatic
agents," under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. The Convention defines
"diplomatic agents" as the heads of missions or members of the
diplomatic staff, thus impliedly withholding the same privileges from all
others. It might bear stressing that even consuls, who represent their
respective states in concerns of commerce and navigation and perform
certain administrative and notarial duties, such as the issuance of
passports and visas, authentication of documents, and administration of
65
oaths, do not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they are not
charged with the duty of representing their states in political matters.
Indeed, the main yardstick in ascertaining whether a person is a diplomat
entitled to immunity is the determination of whether or not he performs
duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an
Assistant Attaché of the United States diplomatic mission and was
accredited as such by the Philippine Government. An attaché belongs to
a category of officers in the diplomatic establishment who may be in
charge of its cultural, press, administrative or financial affairs. There
could also be a class of attaches belonging to certain ministries or
departments of the government, other than the foreign ministry or
department, who are detailed by their respective ministries or
departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or the
like. Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to observe, analyze
and interpret trends and developments in their respective fields in the
host country and submit reports to their own ministries or departments in
the home government.14 These officials are not generally regarded as
members of the diplomatic mission, nor are they normally designated as
having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic
Notes Nos. 414, 757 and 791, all issued post litem motam, respectively,
on 29 May 1990, 25 October 1991 and 17 November 1992. The
presentation did nothing much to alleviate the Court's initial reservations
in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent
gravely abused its discretion in dismissing Civil Case No. 88-45691 on
the basis of an erroneous assumption that simply because of the
diplomatic note, the private respondent is clothed with diplomatic
immunity, thereby divesting the trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the
private respondent. Setting aside for the moment the issue of authenticity
raised by the petitioner and the doubts that surround such claim, in view
of the fact that it took private respondent one (1) year, eight (8) months
and seventeen (17) days from the time his counsel filed on 12 September
1988 a Special Appearance and Motion asking for a first extension of
time to file the Answer because the Departments of State and Justice of
the United States of America were studying the case for the purpose of
determining his defenses, before he could secure the Diplomatic Note
from the US Embassy in Manila, and even granting for the sake of
argument that such note is authentic, the complaint for damages filed by
petitioner cannot be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed
to him were done in his official capacity. Nothing supports this self-
serving claim other than the so-called Diplomatic Note. x x x. The public
respondent then should have sustained the trial court's denial of the
motion to dismiss. Verily, it should have been the most proper and
appropriate recourse. It should not have been overwhelmed by the self-
serving Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste with which
respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08
November 1992, issued by the Office of Protocol of the Department of
Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
Secretary, certifying that "the records of the Department (would) show
that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines
(from 14 October 1985 up to 10 August 1988) was listed as an Assistant
Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No
certified true copy of such "records," the supposed bases for the belated
issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of
the executive branch of the government. In World Health Organization vs.
Aquino,15 the Court has recognized that, in such matters, the hands of the
courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the
jurisdiction of courts, it should behoove the Philippine government,
specifically its Department of Foreign Affairs, to be most circumspect, that
should particularly be no less than compelling, in its post litem motam
issuances. It might be recalled that the privilege is not an immunity from
the observance of the law of the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the exercise of territorial
66
jurisdiction.16 The government of the United States itself, which Scalzo
claims to be acting for, has formulated its standards for recognition of a
diplomatic agent. The State Department policy is to only concede
diplomatic status to a person who possesses an acknowledged
diplomatic title and "performs duties of diplomatic
nature."17 Supplementary criteria for accreditation are the possession of a
valid diplomatic passport or, from States which do not issue such
passports, a diplomatic note formally representing the intention to assign
the person to diplomatic duties, the holding of a non-immigrant visa,
being over twenty-one years of age, and performing diplomatic functions
on an essentially full-time basis.18 Diplomatic missions are requested to
provide the most accurate and descriptive job title to that which currently
applies to the duties performed. The Office of the Protocol would then
assign each individual to the appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed, he worked for the
United States Drug Enforcement Agency and was tasked to conduct
surveillance of suspected drug activities within the country on the dates
pertinent to this case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he committed the acts
alleged in the complaint, the present controversy could then be resolved
under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign
state is a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit20and,
with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the
state itself in its sovereign capacity.21 If the acts giving rise to a suit are
those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the
complaint could be barred by the immunity of the foreign sovereign from
suit without its consent. Suing a representative of a state is believed to
be, in effect, suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is, under the
maxim - par in parem, non habet imperium - that all states are sovereign
equals and cannot assert jurisdiction over one another.22 The implication,
in broad terms, is that if the judgment against an official would require the
state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against
him, the suit must be regarded as being against the state itself, although
it has not been formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United
States Air Force and special officers of the Air Force Office of Special
Investigators charged with the duty of preventing the distribution,
possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits
against the state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed by them in
the discharge of their duties. x x x. It cannot for a moment be imagined
that they were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It follows that for
discharging their duties as agents of the United States, they cannot be
directly impleaded for acts imputable to their principal, which has not
given its consent to be sued. x x x As they have acted on behalf of the
government, and within the scope of their authority, it is that government,
and not the petitioners personally, [who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs.
Court of Appeals26 elaborates:
"It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of the
plaintiff. As was clearly set forth by Justice Zaldivar in Director of the
Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
`Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the
State, and an action against the officials or officers by one whose rights
have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the
State from suit. In the same tenor, it has been said that an action at law
or suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the State, he
violates or invades the personal and property rights of the plaintiff, under
an unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent. The
rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and personal
67
capacity as an ordinary citizen. The cloak of protection afforded the the problem on the drug traffic, is entitled to the defense of state immunity
officers and agents of the government is removed the moment they are from suit.
sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in WHEREFORE, on the foregoing premises, the petition is DENIED. No
him. It is a well-settled principle of law that a public official may be liable costs.
in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith or beyond the scope SO ORDERED.
of his authority and jurisdiction."27
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ.,
A foreign agent, operating within a territory, can be cloaked with immunity concur
from suit but only as long as it can be established that he is acting within
the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns.
Guinto and Shauf both involve officers and personnel of the United
States, stationed within Philippine territory, under the RP-US Military
Bases Agreement. While evidence is wanting to show any similar
agreement between the governments of the Philippines and of the United
States (for the latter to send its agents and to conduct surveillance and
related activities of suspected drug dealers in the Philippines), the
consent or imprimatur of the Philippine government to the activities of the
United States Drug Enforcement Agency, however, can be gleaned from
the facts heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two
countries, certifications from officials of both the Philippine Department of FIRST DIVISION
Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the G.R. No. 125865 March 26, 2001
"buy-bust operation" conducted at the residence of Minucher at the
behest of Scalzo, may be inadequate to support the "diplomatic status" of JEFFREY LIANG (HUEFENG), petitioner,
the latter but they give enough indication that the Philippine government vs.
has given its imprimatur, if not consent, to the activities within Philippine PEOPLE OF THE PHILIPPINES, respondent.
territory of agent Scalzo of the United States Drug Enforcement Agency.
The job description of Scalzo has tasked him to conduct surveillance on RESOLUTION
suspected drug suppliers and, after having ascertained the target, to
inform local law enforcers who would then be expected to make the YNARES-SANTIAGO, J.:
arrest. In conducting surveillance activities on Minucher, later acting as
the poseur-buyer during the buy-bust operation, and then becoming a
This resolves petitioner's Motion for Reconsideration of our Decision
principal witness in the criminal case against Minucher, Scalzo hardly can
dated January 28, 2000, denying the petition for review.
be said to have acted beyond the scope of his official function or duties.
The Motion is anchored on the following arguments:
All told, this Court is constrained to rule that respondent Arthur Scalzo, an
agent of the United States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the country to help contain 1) THE DFA'S DETERMINATION OF IMMUNITY IS A
POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE

68
 BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON
THE COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS
ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN
DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE
COMPLAINANT TO REBUT THE DFA PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY
MADE A FINDING OF FACT ON THE MERITS, NAMELY, THE
SLANDERING OF A PERSON WHICH PREJUDGED
PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL
COURT (MTC)-MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS
IS NOT APPLICABLE TO THIS CASE.
This case has its origin in two criminal Informations1 for grave oral
defamation filed against petitioner, a Chinese national who was employed
as an Economist by the Asian Development Bank (ADB), alleging that on
separate occasions on January 28 and January 31, 1994, petitioner
allegedly uttered defamatory words to Joyce V. Cabal, a member of the
clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of
Mandaluyong City, acting pursuant to an advice from the Department of
Foreign Affairs that petitioner enjoyed immunity from legal processes,
dismissed the criminal Informations against him. On a petition for
certiorari and mandamus filed by the People, the Regional Trial Court of
Pasig City, Branch 160, annulled and set aside the order of the
Metropolitan Trial Court dismissing the criminal cases.2
Petitioner, thus, brought a petition for review with this Court. On January
28, 2000, we rendered the assailed Decision denying the petition for
review. We ruled, in essence, that the immunity granted to officers and
staff of the ADB is not absolute; it is limited to acts performed in an official
capacity. Furthermore, we held that the immunity cannot cover the
commission of a crime such as slander or oral defamation in the name of
official duty.
On October 18, 2000, the oral arguments of the parties were heard. This
Court also granted the Motion for Intervention of the Department of
Foreign Affairs. Thereafter, the parties were directed to submit their
respective memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the
diplomatic immunity of the ADB, its officials and staff, from legal and
judicial processes in the Philippines, as well as the constitutional and
political bases thereof. It should be made clear that nowhere in the
assailed Decision is diplomatic immunity denied, even remotely. The
issue in this case, rather, boils down to whether or not the statements
allegedly made by petitioner were uttered while in the performance of his
official functions, in order for this case to fall squarely under the
provisions of Section 45 (a) of the "Agreement Between the Asian
Development Bank and the Government of the Republic of the
Philippines Regarding the Headquarters of the Asian Development
Bank," to wit:
Officers and staff of the Bank, including for the purpose of this
Article experts and consultants performing missions for the Bank,
shall enjoy the following privileges and immunities:
(a) Immunity from legal process with respect to acts
performed by them in their official capacity except when
the Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioner's and
intervenor's Motions for Reconsideration, we find no cogent reason to
disturb our Decision of January 28, 2000. As we have stated therein, the
slander of a person, by any stretch, cannot be considered as falling within
the purview of the immunity granted to ADB officers and personnel.
Petitioner argues that the Decision had the effect of prejudging the
criminal case for oral defamation against him. We wish to stress that it did
not. What we merely stated therein is that slander, in general, cannot be
considered as an act performed in an official capacity. The issue of
whether or not petitioner's utterances constituted oral defamation is still
for the trial court to determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration
filed by petitioner and intervenor Department of Foreign Affairs are
DENIED with FINALITY.
SO ORDERED.
69
Kapunan and Pardo, JJ ., concur.
Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.
Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed by petitioner Jeffrey
Liang of this Court's decision dated January 28, 2000 which denied the
petition for review. We there held that: the protocol communication of the
Department of Foreign Affairs to the effect that petitioner Liang is covered
by immunity is only preliminary and has no binding effect in courts; the
immunity provided for under Section 45(a) of the Headquarters
Agreement is subject to the condition that the act be done in an "official
capacity"; that slandering a person cannot be said to have been done in
an "official capacity" and, hence, it is not covered by the immunity
agreement; under the Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming petitioner is such, enjoys immunity from
criminal jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official functions; the
commission of a crime is not part of official duty; and that a preliminary
investigation is not a matter of right in cases cognizable by the
Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on the following
arguments:
1. The DFA's determination of immunity is a political question to
be made by the executive branch of the government and is
conclusive upon the courts;
2. The immunity of international organizations is absolute;
3. The immunity extends to all staff of the Asian Development
Bank (ADB);
4. Due process was fully accorded the complainant to rebut the
DFA protocol;
5. The decision of January 28, 2000 erroneously made a finding
of fact on the merits, namely, the slandering of a person which
prejudged petitioner's case before the Metropolitan Trial Court
(MTC) Mandaluyong; and
6. The Vienna Convention on diplomatic relations is not
applicable to this case.
Petitioner contends that a determination of a person's diplomatic
immunity by the Department of Foreign Affairs is a political question. It is
solely within the prerogative of the executive department and is
conclusive upon the courts. In support of his submission, petitioner cites
the following cases: WHO vs. Aquino;1 International Catholic Migration
Commission vs. Calleja;2 The Holy See vs. Rosario, Jr.;3 Lasco vs. United
Nations;4 and DFA vs. NLRC.5
It is further contended that the immunity conferred under the ADB Charter
and the Headquarters Agreement is absolute. It is designed to safeguard
the autonomy and independence of international organizations against
interference from any authority external to the organizations. It is
necessary to allow such organizations to discharge their entrusted
functions effectively. The only exception to this immunity is when there is
an implied or express waiver or when the immunity is expressly limited by
statute. The exception allegedly has no application to the case at bar.
Petitioner likewise urges that the international organization's immunity
from local jurisdiction empowers the ADB alone to determine what
constitutes "official acts" and the same cannot be subject to different
interpretations by the member states. It asserts that the Headquarters
Agreement provides for remedies to check abuses against the exercise of
the immunity. Thus, Section 49 states that the "Bank shall waive the
immunity accorded to any person if, in its opinion, such immunity would
impede the course of justice and the waiver would not prejudice the
purposes for which the immunities are accorded." Section 51 allows for
consultation between the government and the Bank should the
government consider that an abuse has occurred. The same section
provides the mechanism for a dispute settlement regarding, among
others, issues of interpretation or application of the agreement.
70
Petitioner's argument that a determination by the Department of Foreign
Affairs that he is entitled to diplomatic immunity is a political question
binding on the courts, is anchored on the ruling enunciated in the case of
WHO, et al. vs. Aquino, et al.,6 viz:
"It is a recognized principle of international law and under our
system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts
to accept the claim of immunity upon appropriate suggestion by
the principal law officer of the government, the Solicitor General
in this case, or other officer acting under his direction. Hence, in
adherence to the settled principle that courts may not so exercise
their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in conducting
foreign relations, it is accepted doctrine that in such cases the
judicial department of the government follows the action of the
political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International
Catholic Migration Commission vs. Calleja;7The Holy See vs. Rosario,
Jr.;8 Lasco vs. UN;9 and DFA vs. NLRC.10
The case of WHO vs. Aquino involved the search and seizure of personal
effects of petitioner Leonce Verstuyft, an official of the WHO. Verstuyft
was certified to be entitled to diplomatic immunity pursuant to the Host
Agreement executed between the Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed
against ICMC and IRRI. As international organizations, ICMC and IRRI
were declared to possess diplomatic immunity. It was held that they are
not subject to local jurisdictions. It was ruled that the exercise of
jurisdiction by the Department of Labor over the case would defeat the
very purpose of immunity, which is to shield the affairs of international
organizations from political pressure or control by the host country and to
ensure the unhampered performance of their functions.
Holy See v. Rosario, Jr. involved an action for annulment of sale of land
against the Holy See, as represented by the Papal Nuncio. The Court
upheld the petitioner's defense of sovereign immunity. It ruled that where
a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state, which
the envoy holds on behalf of the sending state for the purposes of the
mission, with all the more reason should immunity be recognized as
regards the sovereign itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for
Natural Resources Exploration was sued before the NLRC for illegal
dismissal. The Court again upheld the doctrine of diplomatic immunity
invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the
Asian Development Bank. Pursuant to its Charter and the Headquarters
Agreement, the diplomatic immunity of the Asian Development Bank was
recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity
enjoyed by international organizations. Petitioner asserts that he is
entitled to the same diplomatic immunity and he cannot be prosecuted for
acts allegedly done in the exercise of his official functions.
The term "international organizations" —
"is generally used to describe an organization set up by
agreement between two or more states. Under contemporary
international law, such organizations are endowed with some
degree of international legal personality such that they are
capable of exercising specific rights, duties and powers. They are
organized mainly as a means for conducting general international
business in which the member states have an interest."11
International public officials have been defined as:
". . . persons who, on the basis of an international treaty
constituting a particular international community, are appointed by
this international community, or by an organ of it, and are under
its control to exercise, in a continuous way, functions in the
interest of this particular international community, and who are
subject to a particular personal status."12
71
"Specialized agencies" are international organizations having
functions in particular fields, such as posts, telecommunications,
railways, canals, rivers, sea transport, civil aviation, meteorology,
atomic energy, finance, trade, education and culture, health and
refugees.13
Issues
1. Whether petitioner Liang, as an official of an international
organization, is entitled to diplomatic immunity;
2. Whether an international official is immune from criminal
jurisdiction for all acts, whether private or official;
3. Whether the authority to determine if an act is official or private
is lodged in the courts;
4. Whether the certification by the Department of Foreign Affairs
that petitioner is covered by immunity is a political question that is
binding and conclusive on the courts.
Discussion
I
A perusal of the immunities provisions in various international
conventions and agreements will show that the nature and degree of
immunities vary depending on who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the territory of
each of its Members such privileges and immunities as are
necessary for the fulfillment of its purposes.
Article 105 (2): Representatives of the Members of the United
Nations and officials of the Organization shall similarly enjoy such
privileges and immunities as are necessary for the independent
exercise of their functions in connection with the Organization."
2. Convention on the Privileges and Immunities of the United
Nations
"Section 2: The United Nations, its property and assets wherever
located and by whomsoever held, shall enjoy immunity from
every form of legal process except insofar as in any particular
case it has expressly waived its immunity. It is, however,
understood that no waiver of immunity shall extend to any
measure of execution.
xxx xxx xxx
Section 11 (a): Representatives of Members to the principal and
subsidiary organs of the United Nations . . shall . . . enjoy . . .
immunity from personal arrest or detention and from seizure of
their personal baggage, and, in respect of words spoken or
written and all acts done by them in their capacity as
representatives, immunity from legal process of every kind.
xxx xxx xxx
Section 14: Privileges and immunities are accorded to the
representatives of Members not for the personal benefit of the
individuals themselves, but in order to safeguard the independent
exercise of their functions in connection with the United Nations.
Consequently, a Member not only has the right but is under a
duty to waive the immunity of its representative in any case where
in the opinion of the Member the immunity would impede the
course of justice, and it can be waived without prejudice to the
purpose for which the immunity is accorded.
xxx xxx xxx
Section 18 (a): Officials of the United Nations shall be immune
from legal process in respect of words spoken or written and all
acts performed by them in their official capacity.
xxx xxx xxx
Section 19: In addition to the immunities and privileges specified
in Section 18, the Secretary-General and all Assistant
Secretaries-General shall be accorded in respect of themselves,
their spouses and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys, in
accordance with international law.
72
Section 20: Privileges and immunities are granted to officials in
the interest of the United Nations and not for the personal benefit
of the individuals themselves. The Secretary-General shall have
the right and the duty to waive the immunity of any official in any
case where, in his opinion, the immunity would impede the course
of justice and can be waived without prejudice to the interests of
the United Nations.
xxx xxx xxx
Section 22: Experts . . . performing missions for the United
Nations . . . shall be accorded: (a) immunity from personal arrest
or detention and from seizure of their personal baggage; (b) in
respect of words spoken or written and acts done by them in the
course of the performance of their mission, immunity from legal
process of every kind."
3. Vienna Convention on Diplomatic Relations
"Article 29: The person of a diplomatic agent shall be inviolable.
He shall not be liable to any form of arrest or detention. The
receiving State shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person, freedom,
or dignity.
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction, except in
certain cases.
xxx xxx xxx
Article 38 (1): Except in so far as additional privileges and
immunities may be granted by the receiving State, a diplomatic
agent who is a national of or permanently a resident in that State
shall enjoy only immunity from jurisdiction, and inviolability, in
respect of official acts performed in the exercise of his functions."
4. Vienna Convention on Consular Relations
"Article 41 (1): Consular officials shall not be liable to arrest or
detention pending trial, except in the case of a grave crime and
pursuant to a decision by the competent judicial authority.
xxx xxx xxx
Article 43 (1): Consular officers and consular employees shall not
be amenable to the jurisdiction of the judicial or administrative
authorities of the receiving State in respect of acts performed in
the exercise of consular functions.
Article 43 (2): The provisions of paragraph 1 of this Article shall
not, however, apply in respect of a civil action either: (a) arising
out of a contract concluded by a consular officer or a consular
employee in which he did not contract expressly or impliedly as
an agent of the sending State; or (b) by a third party for damage
arising from an accident in the receiving State caused by a
vehicle, vessel or aircraft."
5. Convention on the Privileges and Immunities of the Specialized
Agencies
"Section 4: The specialized agencies, their property and assets,
wherever located and by whomsoever held, shall enjoy immunity
from every form of legal process except in so far as in any
particular case they have expressly waived their immunity. It is,
however, understood that no waiver of immunity shall extend to
any measure of execution.
Section 13 (a): Representatives of members at meetings
convened by a specialized agency shall, while exercising their
functions and during their journeys to and from the place of
meeting, enjoy immunity from personal arrest or detention and
from seizure of their personal baggage, and in respect of words
spoken or written and all acts done by them in their official
capacity, immunity from legal process of every kind.
xxx xxx xxx
Section 19 (a): Officials of the specialized agencies shall be
immune from legal process in respect of words spoken or written
and all acts performed by them in their official capacity.
73
xxx xxx xxx
Section 21: In addition to the immunities and privileges specified
in sections 19 and 20, the executive head of each specialized
agency, including a any official acting on his behalf during his
absence from duty, shall be accorded in respect of himself, his
spouse and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys, in
accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy immunity from every form of
legal process, except in cases arising out of or in connection with
the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities,
in which cases actions may be brought against the Bank in a
court of competent jurisdiction in the territory of a country in which
the Bank has its principal or a branch office, or has appointed an
agent for the purpose of accepting service or notice of process, or
has issued or guaranteed securities.
xxx xxx xxx
Article 55 (i): All Governors, Directors, alternates, officers and
employees of the Bank, including experts performing missions for
the Bank shall be immune from legal process with respect to acts
performed by them in their official capacity, except when the Bank
waives the immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every form of
legal process, except in cases arising out of or in connection with
the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities,
in which cases actions may be brought against the Bank in a
court of competent jurisdiction in the Republic of the Philippines.
xxx xxx xxx
Section 44: Governors, other representatives of Members,
Directors, the President, Vice-President and executive officers as
may be agreed upon between the Government and the Bank
shall enjoy, during their stay in the Republic of the Philippines in
connection with their official duties with the Bank: (a) immunity
from personal arrest or detention and from seizure of their
personal baggage; (b) immunity from legal process of every kind
in respect of words spoken or written and all acts done by them in
their official capacity; and (c) in respect of other matters not
covered in (a) and (b) above, such other immunities, exemptions,
privileges and facilities as are enjoyed by members of diplomatic
missions of comparable rank, subject to corresponding conditions
and obligations.
Section 45 (a): Officers and staff of the Bank, including for the
purposes of this Article experts and consultants performing
missions for the Bank, shall enjoy . . . immunity from legal
process with respect to acts performed by them in their official
capacity, except when the Bank waives the immunity."
II
There are three major differences between diplomatic and international
immunities. Firstly, one of the recognized limitations of diplomatic
immunity is that members of the diplomatic staff of a mission may be
appointed from among the nationals of the receiving State only with the
express consent of that State; apart from inviolability and immunity from
jurisdiction in respect of official acts performed in the exercise of their
functions, nationals enjoy only such privileges and immunities as may be
granted by the receiving State. International immunities may be specially
important in relation to the State of which the official is a national.
Secondly, the immunity of a diplomatic agent from the jurisdiction of the
receiving State does not exempt him from the jurisdiction of the sending
State; in the case of international immunities there is no sending State
and an equivalent for the jurisdiction of the Sending State therefore has
to be found either in waiver of immunity or in some international
disciplinary or judicial procedure. Thirdly, the effective sanctions which
secure respect for diplomatic immunity are the principle of reciprocity and
the danger of retaliation by the aggrieved State; international immunities
enjoy no similar protection.14
The generally accepted principles which are now regarded as the
foundation of international immunities are contained in the ILO
74
Memorandum, which reduced them in three basic propositions, namely:
(1) that international institutions should have a status which protects them
against control or interference by any one government in the performance
of functions for the effective discharge of which they are responsible to
democratically constituted international bodies in which all the nations
concerned are represented; (2) that no country should derive any
financial advantage by levying fiscal charges on common international
funds; and (3) that the international organization should, as a collectivity
of States Members, be accorded the facilities for the conduct of its official
business customarily extended to each other by its individual member
States. The thinking underlying these propositions is essentially
institutional in character. It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional independence
necessary to free international institutions from national control and to
enable them to discharge their responsibilities impartially on behalf of all
their members.15
III
Positive international law has devised three methods of granting
privileges and immunities to the personnel of international organizations.
The first is by simple conventional stipulation, as was the case in the
Hague Conventions of 1899 and 1907. The second is by internal
legislation whereby the government of a state, upon whose territory the
international organization is to carry out its functions, recognizes the
international character of the organization and grants, by unilateral
measures, certain privileges and immunities to better assure the
successful functioning of the organization and its personnel. In this
situation, treaty obligation for the state in question to grant concessions is
lacking. Such was the case with the Central Commission of the Rhine at
Strasbourg and the International Institute of Agriculture at Rome.
The third is a combination of the first two. In this third method, one finds a
conventional obligation to recognize a certain status of an international
organization and its personnel, but the status is described in broad and
general terms. The specific definition and application of those general
terms are determined by an accord between the organization itself and
the state wherein it is located. This is the case with the League of
Nations, the Permanent Court of Justice, and the United Nations.16
The Asian Development Bank and its Personnel fall under this third
category.
There is a connection between diplomatic privileges and immunities and
those extended to international officials. The connection consists in the
granting, by contractual provisions, of the relatively well-established body
of diplomatic privileges and immunities to international functionaries. This
connection is purely historical. Both types of officials find the basis of their
special status in the necessity of retaining functional independence and
freedom from interference by the state of residence. However, the legal
relationship between an ambassador and the state to which he is
accredited is entirely different from the relationship between the
international official and those states upon whose territory he might carry
out his functions.17
The privileges and immunities of diplomats and those of international
officials rest upon different legal foundations. Whereas those immunities
awarded to diplomatic agents are a right of the sending state based on
customary international law, those granted to international officials are
based on treaty or conventional law. Customary international law places
no obligation on a state to recognize a special status of an international
official or to grant him jurisdictional immunities. Such an obligation can
only result from specific treaty provisions.18
The special status of the diplomatic envoy is regulated by the principle of
reciprocity by which a state is free to treat the envoy of another state as
its envoys are treated by that state. The juridical basis of the diplomat's
position is firmly established in customary international law. The
diplomatic envoy is appointed by the sending State but it has to make
certain that the agreement of the receiving State has been given for the
person it proposes to accredit as head of the mission to that State.19
The staff personnel of an international organization — the international
officials — assume a different position as regards their special status.
They are appointed or elected to their position by the organization itself,
or by a competent organ of it; they are responsible to the organization
and their official acts are imputed to it. The juridical basis of their special
position is found in conventional law,20 since there is no established basis
of usage or custom in the case of the international official. Moreover, the
relationship between an international organization and a member-state
does not admit of the principle of reciprocity,21 for it is contradictory to the
basic principle of equality of states. An international organization carries
out functions in the interest of every member state equally. The
international official does not carry out his functions in the interest of any
state, but in serving the organization he serves, indirectly, each state
equally. He cannot be, legally, the object of the operation of the principle
75
of reciprocity between states under such circumstances. It is contrary to
the principle of equality of states for one state member of an international
organization to assert a capacity to extract special privileges for its
nationals from other member states on the basis of a status awarded by it
to an international organization. It is upon this principle of sovereign
equality that international organizations are built.
It follows from this same legal circumstance that a state called upon to
admit an official of an international organization does not have a capacity
to declare him persona non grata.
The functions of the diplomat and those of the international official are
quite different. Those of the diplomat are functions in the national interest.
The task of the ambassador is to represent his state, and its specific
interest, at the capital of another state. The functions of the international
official are carried out in the international interest. He does not represent
a state or the interest of any specific state. He does not usually
"represent" the organization in the true sense of that term. His functions
normally are administrative, although they may be judicial or executive,
but they are rarely political or functions of representation, such as those
of the diplomat.
There is a difference of degree as well as of kind. The interruption of the
activities of a diplomatic agent is likely to produce serious harm to the
purposes for which his immunities were granted. But the interruption of
the activities of the international official does not, usually, cause serious
dislocation of the functions of an international secretariat.22
On the other hand, they are similar in the sense that acts performed in an
official capacity by either a diplomatic envoy or an international official are
not attributable to him as an individual but are imputed to the entity he
represents, the state in the case of the diplomat, and the organization in
the case of the international official.23
IV
Looking back over 150 years of privileges and immunities granted to the
personnel of international organizations, it is clear that they were
accorded a wide scope of protection in the exercise of their functions —
The Rhine Treaty of 1804 between the German Empire and France which
provided "all the rights of neutrality" to persons employed in regulating
navigation in the international interest; The Treaty of Berlin of 1878 which
granted the European Commission of the Danube "complete
independence of territorial authorities" in the exercise of its functions; The
Covenant of the League which granted "diplomatic immunities and
privileges." Today, the age of the United Nations finds the scope of
protection narrowed. The current tendency is to reduce privileges and
immunities of personnel of international organizations to a minimum. The
tendency cannot be considered as a lowering of the standard but rather
as a recognition that the problem on the privileges and immunities of
international officials is new. The solution to the problem presented by the
extension of diplomatic prerogatives to international functionaries lies in
the general reduction of the special position of both types of agents in
that the special status of each agent is granted in the interest of function.
The wide grant of diplomatic prerogatives was curtailed because of
practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials.
While the current direction of the law seems to be to narrow the
prerogatives of the personnel of international organizations, the reverse is
true with respect to the prerogatives of the organizations themselves,
considered as legal entities. Historically, states have been more
generous in granting privileges and immunities to organizations than they
have to the personnel of these organizations.24
Thus, Section 2 of the General Convention on the Privileges and
Immunities of the United Nations states that the UN shall enjoy immunity
from every form of legal process except insofar as in any particular case
it has expressly waived its immunity. Section 4 of the Convention on the
Privileges and Immunities of the Specialized Agencies likewise provides
that the specialized agencies shall enjoy immunity from every form of
legal process subject to the same exception. Finally, Article 50(1) of the
ADB Charter and Section 5 of the Headquarters Agreement similarly
provide that the bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in connection with the exercise
of its powers to borrow money, to guarantee obligations, or to buy and
sell or underwrite the sale of securities.
The phrase "immunity from every form of legal process" as used in the
UN General Convention has been interpreted to mean absolute immunity
from a state's jurisdiction to adjudicate or enforce its law by legal process,
and it is said that states have not sought to restrict that immunity of the
United Nations by interpretation or amendment. Similar provisions are
contained in the Special Agencies Convention as well as in the ADB
Charter and Headquarters Agreement. These organizations were
accorded privileges and immunities in their charters by language similar
to that applicable to the United Nations. It is clear therefore that these
76
organizations were intended to have similar privileges and
immunities.25 From this, it can be easily deduced that international
organizations enjoy absolute immunity similar to the diplomatic
prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the prevailing rule. The
Foreign Sovereign Immunities Act was passed adopting the "restrictive
theory" limiting the immunity of states under international law essentially
to activities of a kind not carried on by private persons. Then the
International Organizations Immunities Act came into effect which gives
to designated international organizations the same immunity from suit
and every form of judicial process as is enjoyed by foreign governments.
This gives the impression that the Foreign Sovereign Immunities Act has
the effect of applying the restrictive theory also to international
organizations generally. However, aside from the fact that there was no
indication in its legislative history that Congress contemplated that result,
and considering that the Convention on Privileges and Immunities of the
United Nations exempts the United Nations "from every form of legal
process," conflict with the United States obligations under the Convention
was sought to be avoided by interpreting the Foreign Sovereign
Immunities Act, and the restrictive theory, as not applying to suits against
the United Nations.26
On the other hand, international officials are governed by a different rule.
Section 18(a) of the General Convention on Privileges and Immunities of
the United Nations states that officials of the United Nations shall be
immune from legal process in respect of words spoken or written and all
acts performed by them in their official capacity. The Convention on
Specialized Agencies carries exactly the same provision. The Charter of
the ADB provides under Article 55(i) that officers and employees of the
bank shall be immune from legal process with respect to acts performed
by them in their official capacity except when the Bank waives immunity.
Section 45 (a) of the ADB Headquarters Agreement accords the same
immunity to the officers and staff of the bank. There can be no dispute
that international officials are entitled to immunity only with respect to acts
performed in their official capacity, unlike international organizations
which enjoy absolute immunity.
Clearly, the most important immunity to an international official, in the
discharge of his international functions, is immunity from local jurisdiction.
There is no argument in doctrine or practice with the principle that an
international official is independent of the jurisdiction of the local
authorities for his official acts. Those acts are not his, but are imputed to
the organization, and without waiver the local courts cannot hold him
liable for them. In strict law, it would seem that even the organization
itself could have no right to waive an official's immunity for his official
acts. This permits local authorities to assume jurisdiction over an
individual for an act which is not, in the wider sense of the term, his act at
all. It is the organization itself, as a juristic person, which should waive its
own immunity and appear in court, not the individual, except insofar as he
appears in the name of the organization. Provisions for immunity from
jurisdiction for official acts appear, aside from the aforementioned
treatises, in the constitution of most modern international organizations.
The acceptance of the principle is sufficiently widespread to be regarded
as declaratory of international law.27
V
What then is the status of the international official with respect to his
private acts?
Section 18 (a) of the General Convention has been interpreted to mean
that officials of the specified categories are denied immunity from local
jurisdiction for acts of their private life and empowers local courts to
assume jurisdiction in such cases without the necessity of waiver.28 It has
earlier been mentioned that historically, international officials were
granted diplomatic privileges and immunities and were thus considered
immune for both private and official acts. In practice, this wide grant of
diplomatic prerogatives was curtailed because of practical necessity and
because the proper functioning of the organization did not require such
extensive immunity for its officials. Thus, the current status of the law
does not maintain that states grant jurisdictional immunity to international
officials for acts of their private lives.29 This much is explicit from the
Charter and Headquarters Agreement of the ADB which contain
substantially similar provisions to that of the General Convention.
VI
Who is competent to determine whether a given act is private or official?
This is an entirely different question. In connection with this question, the
current tendency to narrow the scope of privileges and immunities of
international officials and representatives is most apparent. Prior to the
regime of the United Nations, the determination of this question rested
with the organization and its decision was final. By the new formula, the
state itself tends to assume this competence. If the organization is
77
dissatisfied with the decision, under the provisions of the General
Convention of the United States, or the Special Convention for
Specialized Agencies, the Swiss Arrangement, and other current
dominant instruments, it may appeal to an international tribunal by
procedures outlined in those instruments. Thus, the state assumes this
competence in the first instance. It means that, if a local court assumes
jurisdiction over an act without the necessity of waiver from the
organization, the determination of the nature of the act is made at the
national level.30
It appears that the inclination is to place the competence to determine the
nature of an act as private or official in the courts of the state concerned.
That the prevalent notion seems to be to leave to the local courts
determination of whether or not a given act is official or private does not
necessarily mean that such determination is final. If the United Nations
questions the decision of the Court, it may invoke proceedings for
settlement of disputes between the organization and the member states
as provided in Section 30 of the General Convention. Thus, the decision
as to whether a given act is official or private is made by the national
courts in the first instance, but it may be subjected to review in the
international level if questioned by the United Nations.31
A similar view is taken by Kunz, who writes that the "jurisdiction of local
courts without waiver for acts of private life empowers the local courts to
determine whether a certain act is an official act or an act of private life,"
on the rationale that since the determination of such question, if left in the
hands of the organization, would consist in the execution, or non-
execution, of waiver, and since waiver is not mentioned in connection
with the provision granting immunities to international officials, then the
decision must rest with local courts.32
Under the Third Restatement of the Law, it is suggested that since an
international official does not enjoy personal inviolability from arrest or
detention and has immunity only with respect to official acts, he is subject
to judicial or administrative process and must claim his immunity in the
proceedings by showing that the act in question was an official act.
Whether an act was performed in the individual's official capacity is a
question for the court in which a proceeding is brought, but if the
international organization disputes the court's finding, the dispute
between the organization and the state of the forum is to be resolved by
negotiation, by an agreed mode of settlement or by advisory opinion of
the International Court of Justice.33
Recognizing the difficulty that by reason of the right of a national court to
assume jurisdiction over private acts without a waiver of immunity, the
determination of the official or private character of a particular act may
pass from international to national control, Jenks proposes three ways of
avoiding difficulty in the matter. The firstwould be for a municipal court
before which a question of the official or private character of a particular
act arose to accept as conclusive in the matter any claim by the
international organization that the act was official in character, such a
claim being regarded as equivalent to a governmental claim that a
particular act is an act of State. Such a claim would be in effect a claim by
the organization that the proceedings against the official were a violation
of the jurisdictional immunity of the organization itself which is unqualified
and therefore not subject to delimitation in the discretion of the municipal
court. The second would be for a court to accept as conclusive in the
matter a statement by the executive government of the country where the
matter arises certifying the official character of the act. The third would be
to have recourse to the procedure of international arbitration. Jenks
opines that it is possible that none of these three solutions would be
applicable in all cases; the first might be readily acceptable only in the
clearest cases and the second is available only if the executive
government of the country where the matter arises concurs in the view of
the international organization concerning the official character of the act.
However, he surmises that taken in combination, these various
possibilities may afford the elements of a solution to the problem.34
One final point. The international official's immunity for official acts may
be likened to a consular official's immunity from arrest, detention, and
criminal or civil process which is not absolute but applies only to acts or
omissions in the performance of his official functions, in the absence of
special agreement. Since a consular officer is not immune from all legal
process, he must respond to any process and plead and prove immunity
on the ground that the act or omission underlying the process was in the
performance of his official functions. The issue has not been
authoritatively determined, but apparently the burden is on the consular
officer to prove his status as well as his exemption in the circumstances.
In the United States, the US Department of State generally has left it to
the courts to determine whether a particular act was within a consular
officer's official duties.35
Submissions
On the bases of the foregoing disquisitions, I submit the following
conclusions:
78
First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic
immunity and hence his immunity is not absolute.
Under the Vienna Convention on Diplomatic Relations, a diplomatic
envoy is immune from criminal jurisdiction of the receiving State for all
acts, whether private or official, and hence he cannot be arrested,
prosecuted and punished for any offense he may commit, unless his
diplomatic immunity is waived.36 On the other hand, officials of
international organizations enjoy "functional" immunities, that is, only
those necessary for the exercise of the functions of the organization and
the fulfillment of its purposes.37 This is the reason why the ADB Charter
and Headquarters Agreement explicitly grant immunity from legal process
to bank officers and employees only with respect to acts performed by
them in their official capacity, except when the Bank waives immunity. In
other words, officials and employees of the ADB are subject to the
jurisdiction of the local courts for their private acts, notwithstanding the
absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of "immunity from
every form of legal process" accorded to ADB as an international
organization. The immunity of ADB is absolute whereas the immunity of
its officials and employees is restricted only to official acts. This is in
consonance with the current trend in international law which seeks to
narrow the scope of protection and reduce the privileges and immunities
granted to personnel of international organizations, while at the same
time aims to increase the prerogatives of international organizations.
Second, considering that bank officials and employees are covered by
immunity only for their official acts, the necessary inference is that the
authority of the Department of Affairs, or even of the ADB for that matter,
to certify that they are entitled to immunity is limited only to acts done in
their official capacity. Stated otherwise, it is not within the power of the
DFA, as the agency in charge of the executive department's foreign
relations, nor the ADB, as the international organization vested with the
right to waive immunity, to invoke immunity for private acts of bank
officials and employees, since no such prerogative exists in the first
place. If the immunity does not exist, there is nothing to certify.
As an aside, ADB cannot even claim to have the right to waive immunity
for private acts of its officials and employees. The Charter and the
Headquarters Agreement are clear that the immunity can be waived only
with respect to official acts because this is only the extent to which the
privilege has been granted. One cannot waive the right to a privilege
which has never been granted or acquired.
Third, I choose to adopt the view that it is the local courts which have
jurisdiction to determine whether or not a given act is official or private.
While there is a dearth of cases on the matter under Philippine
jurisprudence, the issue is not entirely novel.
The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of
immunity from suit of the officials of a United States Naval Base inside
the Philippine territory. Although a motion to dismiss was filed by the
defendants therein invoking their immunity from suit pursuant to the RP-
US Military Bases Agreement, the trial court denied the same and, after
trial, rendered a decision declaring that the defendants are not entitled to
immunity because the latter acted beyond the scope of their official
duties. The Court likewise applied the ruling enunciated in the case
of Chavez vs. Sandiganbayan39 to the effect that a mere invocation of the
immunity clause does not ipso facto result in the charges being
automatically dropped. While it is true that the Chavez case involved a
public official, the Court did not find any substantial reason why the same
rule cannot be made to apply to a US official assigned at the US Naval
Station located in the Philippines. In this case, it was the local courts
which ascertained whether the acts complained of were done in an
official or personal capacity.
In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment
of contract of sale, reconveyance, specific performance and damages
was filed against petitioner. Petitioner moved to dismiss on the ground of,
among others, lack of jurisdiction based on sovereign immunity from suit,
which was denied by the trial court. A motion for reconsideration, and
subsequently, a "Motion for a Hearing for the Sole Purpose of
Establishing Factual Allegation for Claim of Immunity as a Jurisdictional
Defense" were filed by petitioner. The trial court deferred resolution of
said motions until after trial on the merits. On certiorari, the Court there
ruled on the issue of petitioner's non-suability on the basis of the
allegations made in the pleadings filed by the parties. This is an implicit
recognition of the court's jurisdiction to ascertain the suability or non-
suability of the sovereign by assessing the facts of the case. The Court
hastened to add that when a state or international agency wishes to
plead sovereign or diplomatic immunity in a foreign court, in some cases,
the defense of sovereign immunity was submitted directly to the local
courts by the respondents through their private counsels, or where the
foreign states bypass the Foreign Office, the courts can inquire into the
79
facts and make their own determination as to the nature of the acts and
transactions involved.
Finally, it appears from the records of this case that petitioner is a senior
economist at ADB and as such he makes country project profiles which
will help the bank in deciding whether to lend money or support a
particular project to a particular country.41 Petitioner stands charged of
grave slander for allegedly uttering defamatory remarks against his
secretary, the private complainant herein. Considering that the immunity
accorded to petitioner is limited only to acts performed in his official
capacity, it becomes necessary to make a factual determination of
whether or not the defamatory utterances were made pursuant and in
relation to his official functions as a senior economist.
I vote to deny the motion for reconsideration.
Davide, Jr., C.J., concurs.
EN BANC
G.R. No. 149453 October 7, 2003
PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE,
DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE,
CHIEF STATE PROSECUTOR JOVENCITO ZUÑO, STATE
PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND
ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY
PROSECUTOR OF QUEZON CITY CLARO ARELLANO, petitioners,
vs.
PANFILO M. LACSON, respondent.
RESOLUTION
CALLEJO, SR., J.:
Before the Court are the following motions of the respondent, to wit: (a)
Omnibus Motion;1 (b) Motion for Reconsideration;2 (c) Supplement to
Motion for Reconsideration;3 (d) Motion To Set for Oral Arguments.4
The Omnibus Motion
The respondent seeks the reconsideration of the April 29, 2003
Resolution of this Court which granted the petitioners’ motion for
reconsideration. The respondent thereafter prays to allow Associate
Justices Renato C. Corona, Ma. Alicia Austria-Martinez, Conchita C.
Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit
themselves or, absent their consent, rule that such inhibition is in order
and to recuse them from further deliberating, discussing or, in any
manner, participating in the resolution of the Motion for Reconsideration
and the Supplement to Motion for Reconsideration. The respondent
points out that the aforenamed members of the Court were appointed by
President Gloria Macapagal-Arroyo after the February 19, 2002 oral
arguments and after the case at bar was submitted for the decision of the
Court. He asserts that although A.M. No. 99-8-09-SC5specifically provides
that it applies only to the divisions of the Court, it should likewise apply to
this case, in light of the April 1, 2003 Resolution of this Court which set
aside its Resolution dated May 28, 2002, apart from the constitutional
issues raised by the respondent in his motion for reconsideration and its
supplement. As such, according to the respondent, the instant case
should be unloaded by Justice Callejo, Sr. and re-raffled to any other
member of the Court.
The Court resolves to deny the respondent’s motion for lack of merit.
The records show that as early as May 24, 2002, the respondent filed an
urgent motion for the recusation of Justices Renato C. Corona and Ma.
Alicia Austria-Martinez for the reason that they were appointed to the
Court after the February 19, 2002 oral arguments and did not participate
in the integral portions of the proceedings. Justices Corona and Austria-
Martinez refused to inhibit themselves and decided to participate in the
deliberation on the petition.6 On March 18, 2003, the respondent filed a
motion with the Court for the recusation of Justice Romeo J. Callejo, Sr.
on account of his voluntary inhibition when the case was pending before
the Court of Appeals.
80
On March 25, 2003, this Court issued a resolution denying the
respondent’s Motion dated March 18, 2003. The respondent thereafter
filed his motion for reconsideration of the April 1, 2003 Resolution of the
Court in which he prayed, inter alia, for the inhibition of Justice Callejo,
Sr. under A.M. No. 99-8-09-SC and that the case be re-raffled to another
member of the Court who had actually participated in the deliberation and
the rendition of its May 28, 2002 Resolution. The respondent likewise
sought the inhibition of Justices Conchita C. Morales and Adolfo S.
Azcuna, again for the reason that they were appointed to the Court after
the oral arguments on February 19, 2002 and after the case had already
been submitted for decision.
On April 29, 2003, this Court issued a resolution denying the aforesaid
motions of the respondent.7 The Court ruled that A.M. No. 99-8-09-SC is
applicable only to cases assigned to the divisions of the Court:
The respondent’s reliance on Supreme Court Circular No. 99-8-09 is
misplaced. As admitted by the respondent, the said circular is applicable
only to motions for reconsideration in cases assigned to the Divisions of
the Court. For cases assigned to the Court En Banc, the policy of the
Court had always been and still is, if the ponente is no longer with the
Court, his replacement will act upon the motion for reconsideration of a
party and participate in the deliberations thereof. This is the reason why
Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared
the draft of the April 1, 2003 Resolution of the Court.8
The Court also ruled that there was no need for its newest members to
inhibit themselves from participating in the deliberation of the
respondent’s Motion for Reconsideration:
Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and
Adolfo S. Azcuna were not yet members of the Court during the February
18, 20029 oral arguments before the Court, nonetheless they were not
disqualified to participate in the deliberations on the petitioner’s motion for
reconsideration of the May 28, 2002 Resolution of the Court or of the
instant motion for reconsideration. Neither is Justice Callejo, Sr.
disqualified to prepare the resolution of the Court on the motion for
reconsideration of the respondent. When the Court deliberated on
petitioners’ motion for reconsideration, Justices Conchita Carpio-Morales,
Romeo J. Callejo, Sr. and Adolfo S. Azcuna were already members of the
Court.
It bears stressing that transcripts of stenographic notes taken during the
February 18, 2002 hearing and oral arguments of the parties are parts of
the records of this case. Said transcripts are available to the parties or to
any member of the Court. Likewise, Attys. Rene A.V. Saguisag and Felix
Carao, Jr. may not yet have been the counsel of the respondent on
February 18, 2002 but by reading the said transcripts and the records of
this case they are informed of what transpired during the hearing and oral
arguments of the parties.10
It is thus clear that the grounds cited by the respondent in his omnibus
motion had already been passed upon and resolved by this Court. The
respondent did not make any new substantial arguments in his motion to
warrant a reconsideration of the aforesaid resolutions.
Besides, the respondent sought the inhibition of Justices Conchita C.
Morales and Adolfo S. Azcuna only after they had already concurred in
the Court’s Resolution dated April 1, 2003. Case law has it that a motion
for disqualification must be denied when filed after a member of the Court
has already given an opinion on the merits of the case, the rationale
being that a litigant cannot be permitted to speculate upon the action of
the Court, only to raise an objection of this sort after a decision has been
rendered.11
The Motion to Set the Case for Oral Arguments
The Court denies the motion of the respondent. The parties have already
extensively discussed the issues involved in the case. The respondent’s
motion for reconsideration consists of no less than a hundred pages,
excluding the supplement to his motion for reconsideration and his reply
to the petitioners’ comment on his motion. There is no longer a need to
set the instant case for oral arguments.
The Issue as to the Application of the Time-bar under Section 8, Rule 117
of the Revised Rules of Criminal Procedure – Whether Prospective or
Retroactive
The respondent seeks the reconsideration of the April 1, 2003 Resolution
of the Court and thereafter reinstate its Resolution of May 28, 2002.
He asserts that pursuant to a long line of jurisprudence and a long-
standing judicial practice in applying penal law, Section 8, Rule 117 of the
Revised Rules of Criminal Procedure (RRCP) should be applied
prospectively and retroactively without reservations, only and solely on
81
the basis of its being favorable to the accused. He asserts that case law
on the retroactive application of penal laws should likewise apply to
criminal procedure, it being a branch of criminal law. The respondent
insists that Section 8 was purposely crafted and included as a new
provision to reinforce the constitutional right of the accused to a speedy
disposition of his case. It is primarily a check on the State to prosecute
criminal cases diligently and continuously, lest it loses its right to
prosecute the accused anew. The respondent argues that since Section
8 is indubitably a rule of procedure, there can be no other conclusion: the
rule should have retroactive application, absent any provision therein that
it should be applied prospectively. Accordingly, prospective application
thereof would in effect give the petitioners more than two years from
March 29, 1999 within which to revive the criminal cases, thus violating
the respondent’s right to due process and equal protection of the law.
The respondent asserts that Section 8 was meant to reach back in time
to provide relief to the accused. In this case, the State had been given
more than sufficient opportunity to prosecute the respondent anew after
the March 29, 1999 dismissal of the cases by then Judge Wenceslao
Agnir, Jr. and even before the RRCP took effect on December 1, 2000.
According to the respondent, the petitioners filed the Informations with
the RTC in Criminal Cases Nos. 01-101102 to 01-101112 beyond the
two-year bar, in violation of his right to a speedy trial, and that such filing
was designed to derail his bid for the Senate.
In their comment on the respondent’s motions, the petitioners assert that
the prospective application of Section 8 is in keeping with Section 5(5),
Article VIII of the 1987 Constitution, which provides in part that the rules
of procedure which the Court may promulgate shall not diminish, increase
or modify substantial rights. While Section 8 secures the rights of the
accused, it does not and should not preclude the equally important right
of the State to public justice. If such right to public justice is taken away,
then Section 8 can no longer be said to be a procedural rule. According
to the petitioners, if a procedural rule impairs a vested right, or would
work injustice, the said rule may not be given a retroactive application.
They contend that the right of the accused to a speedy trial or disposition
of the criminal cases applies only to outstanding and pending cases and
not to cases already dismissed. The petitioners assert that the "refiling of
the cases" under Section 8 should be taken to mean as the filing of the
criminal complaint with the appropriate office for the purpose of
conducting a preliminary investigation, and not the actual filing of the
criminal complaint or information in court for trial. Furthermore, according
to the petitioners, the offended parties must be given notices of the
motion for provisional dismissal of the cases under Section 8 since the
provision so expressly states. Thus, if the requisite notices to the heirs of
the deceased would be taken into consideration, the two-year period had
not yet even commenced to run.
In his consolidated reply to the comment of the petitioners, the
respondent asserts that the State is proscribed from refiling a criminal
case if it can be shown that the delay resulted in a violation of the right of
the accused to due process. In this case, there was an inordinate delay in
the revival of the cases, considering that the witnesses in the criminal
cases for the State in March 1999 are the same witnesses in 2001. The
State had reasonable opportunity to refile the cases before the two-year
bar but failed to do so because of negligence; and perhaps institutional
indolence. Contrary to the petitioners’ contention, the respondent posits
that the revival of the cases contemplated in Section 8 refers to the filing
of the Informations or complaints in court for trial. The operational act
then is the refiling of the Informations with the RTC, which was done only
on June 6, 2001, clearly beyond the two-year bar.
The Court finds the respondent’s contentions to be without merit.
First. The Court approved the RRCP pursuant to its power under Article
VIII, Section 5, paragraph 5 of the Constitution which reads:
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court.
The Court is not mandated to apply Section 8 retroactively simply
because it is favorable to the accused. It must be noted that the new rule
was approved by the Court not only to reinforce the constitutional right of
the accused to a speedy disposition of the case. The time-bar under the
new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State
and the accused; not for the accused only. The Court emphasized in its
assailed resolution that:
82
In the new rule in question, as now construed by the Court, it has fixed a
time-bar of one year or two years for the revival of criminal cases
provisionally dismissed with the express consent of the accused and with
a priori notice to the offended party. The time-bar may appear, on first
impression, unreasonable compared to the periods under Article 90 of the
Revised Penal Code. However, in fixing the time-bar, the Court balanced
the societal interests and those of the accused for the orderly and speedy
disposition of criminal cases with minimum prejudice to the State and the
accused. It took into account the substantial rights of both the State and
of the accused to due process. The Court believed that the time limit is a
reasonable period for the State to revive provisionally dismissed cases
with the consent of the accused and notice to the offended parties. The
time-bar fixed by the Court must be respected unless it is shown that the
period is manifestly short or insufficient that the rule becomes a denial of
justice.12
In criminal litigations concerning constitutional issue claims, the Court, in
the interest of justice, may make the rule prospective where the
exigencies of the situation make the rule prospective. The retroactivity or
non-retroactivity of a rule is not automatically determined by the provision
of the Constitution on which the dictate is based. Each constitutional rule
of criminal procedure has its own distinct functions, its own background
or precedent, and its own impact on the administration of justice, and the
way in which these factors combine must inevitably vary with the dictate
involved.13
Matters of procedure are not necessarily retrospective in operation as a
statute.14 To paraphrase the United States Supreme Court per Justice
Benjamin Cardozo, the Court in defining the limits of adherence may
make a choice for itself between the principle of forward operation and
that of relating forward.15
The Court approved Section 8 pursuant to its power under Article VIII,
Section 5, paragraph 5 of the Constitution. This constitutional grant to
promulgate rules carries with it the power, inter alia, to determine whether
to give the said rules prospective or retroactive effect. Moreover, under
Rule 144 of the Rules of Court, the Court may not apply the rules to
actions pending before it if in its opinion their application would not be
feasible or would work injustice, in which event, the former procedure
shall apply.16
The absence of a provision in Section 8 giving it prospective application
only does not proscribe the prospective application thereof; nor does it
imply that the Court intended the new rule to be given retroactive and
prospective effect. If the statutory purpose is clear, the provisions of the
law should be construed as is conducive to fairness and justice, and in
harmony with the general spirit and policy of the rule. It should be
construed so as not to defeat but to carry out such end or purpose.17 A
statute derives its vitality from the purpose for which it is approved. To
construe it in a manner that disregards or defeats such purpose is to
nullify or destroy the law.18 In Cometa v. Court of Appeals,19 this Court
ruled that "the spirit rather than the letter of the statute determines its
construction; hence, a statute must be read according to its spirit or
intent."20 While we may not read into the law a purpose that is not there,
we nevertheless have the right to read out of it the reason for its
enactment. In doing so, we defer not to the "letter that killeth" but to the
"spirit that vivifieth, to give effect to the lawmaker’s will."21
In this case, when the Court approved Section 8, it intended the new rule
to be applied prospectively and not retroactively, for if the intention of the
Court were otherwise, it would defeat the very purpose for which it was
intended, namely, to give the State a period of two years from notice of
the provisional dismissal of criminal cases with the express consent of
the accused. It would be a denial of the State’s right to due process and a
travesty of justice for the Court to apply the new rule retroactively in the
present case as the respondent insists, considering that the criminal
cases were provisionally dismissed by Judge Agnir, Jr. on March 29,
1999 before the new rule took effect on December 1, 2000. A retroactive
application of the time-bar will result in absurd, unjust and oppressive
consequences to the State and to the victims of crimes and their heirs.
Consider this scenario: the trial court (RTC) provisionally dismissed a
criminal case with the express consent of the accused in 1997. The
prosecution had the right to revive the case within the prescriptive period,
under Article 90 of the Revised Penal Code, as amended. On December
1, 2000, the time-bar rule under Section 8 took effect, the prosecution
was unable to revive the criminal case before then.
If the time-bar fixed in Section 8 were to be applied retroactively, this
would mean that the State would be barred from reviving the case for
failure to comply with the said time-bar, which was yet to be approved by
the Court three years after the provisional dismissal of the criminal case.
In contrast, if the same case was dismissed provisionally in December
2000, the State had the right to revive the same within the time-bar. In
fine, to so hold would imply that the State was presumed to foresee and
anticipate that three years after 1997, the Court would approve and
83
amend the RRCP. The State would thus be sanctioned for its failure to
comply with a rule yet to be approved by the Court. It must be stressed
that the institution and prosecution of criminal cases are governed
by existing rules and not by rules yet to exist. It would be the apex of
injustice to hold that Section 8 had a platonic or ideal existence before it
was approved by the Court. The past cannot be erased by a capricious
retroactive application of the new rule.
In holding that the petitioners had until December 1, 2002 within which to
revive the criminal cases provisionally dismissed by Judge Agnir, Jr. on
March 29, 1999, this Court explained, thus:
The Court agrees with the petitioners that to apply the time-bar
retroactively so that the two-year period commenced to run on March 31,
1999 when the public prosecutor received his copy of the resolution of
Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the
intendment of the new rule. Instead of giving the State two years to revive
provisionally dismissed cases, the State had considerably less than two
years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-
99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on
December 1, 2000. If the Court applied the new time-bar retroactively, the
State would have only one year and three months or until March 31, 2001
within which to revive these criminal cases. The period is short of the two-
year period fixed under the new rule. On the other hand, if the time limit is
applied prospectively, the State would have two years from December 1,
2000 or until December 1, 2002 within which to revive the cases. This is
in consonance with the intendment of the new rule in fixing the time-bar
and thus prevent injustice to the State and avoid absurd, unreasonable,
oppressive, injurious, and wrongful results in the administration of justice.
The period from April 1, 1999 to November 30, 199922 should be excluded
in the computation of the two-year period because the rule prescribing it
was not yet in effect at the time and the State could not be expected to
comply with the time-bar. It cannot even be argued that the State waived
its right to revive the criminal cases against respondent or that it was
negligent for not reviving them within the two-year period under the new
rule. As the United States Supreme Court said, per Justice Felix
1a\^/phi 1.net
Frankfurter, in Griffin v. People, 351 US 12 (1956):
We should not indulge in the fiction that the law now announced has
always been the law and, therefore, that those who did not avail
themselves of it waived their rights …
The two-year period fixed in the new rule is for the benefit of both the
State and the accused. It should not be emasculated and reduced by an
inordinate retroactive application of the time-bar therein provided merely
to benefit the accused. For to do so would cause an "injustice of
hardship" to the State and adversely affect the administration of justice in
general and of criminal laws in particular.23
Further quoting Justice Felix Frankfurter’s opinion in Griffin v. People,24 he
said, "it is much more conducive to law’s self-respect to recognize
candidly the considerations that give prospective content to a new
pronouncement of law. That this is consonant with the spirit of our law
and justified by those considerations of reason which should dominate
the law has been luminously expounded by Mr. Justice Cardozo shortly
before he came here and in an opinion which he wrote for the Court."
Parenthetically, the respondent himself admitted in his motion for
reconsideration that Judge Agnir, Jr. could not have been expected to
comply with the notice requirement under the new rule when it yet had to
exist:
99. Respondent submits that the records are still in the same state of
inadequacy and incompletion. This however is not strange considering
that Section 8, Rule 117 had not existed on March 29, 1999, when the
criminal cases were dismissed, and then Judge Agnir did not have its text
to guide his actions. How could the good judge have complied with the
mandate of Section 8, Rule 117 when it yet had to exist?25
Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their
passage. In that sense and to that extent, procedural laws are
retroactive.26Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long
been dismissed by Judge Agnir, Jr. before the new rule took effect on
December 1, 2000. When the petitioners filed the Informations in Criminal
Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases
Nos. Q-99-81679 and Q-99-81689 had long since been terminated. The
two-year bar in the new rule should not be reckoned from the March 29,
1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 but
from December 1, 2000 when the new rule took effect. While it is true that
the Court applied Section 8 of Rule 11027 of the RRCP retroactively, it did
so only to cases still pending with this Court and not to cases already
terminated with finality.
84
The records show that after the requisite preliminary investigation
conducted by the petitioners in accordance with existing rules, eleven
Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed
with the RTC on June 6, 2001, very well within the time-bar therefor. The
respondent cannot argue that his right to due process and to a speedy
disposition of the cases as enshrined in the Constitution had been
violated.28
The respondent’s plaint that he was being singled out by the prospective
application of the new rule simply because before the Court issued its
April 1, 2003 Resolution, he announced his candidacy for the presidency
of the Republic for the 2004 elections has no factual basis
whatsoever.29 The bare and irrefutable fact is that it was in this case
where the issue of the retroactive/prospective application of the new rule
was first raised before the Court. The ruling of the Court in its April 1,
2003 Resolution and its ruling today would be the same, regardless of
who the party or parties involved are, whether a senator of the Republic
or an ordinary citizen.
The respondent’s contention that the prospective application of the new
rule would deny him due process and would violate the equal protection
of laws is barren of merit. It proceeds from an erroneous assumption that
the new rule was approved by the Court solely for his benefit, in
derogation of the right of the State to due process. The new rule was
approved by the Court to enhance the right of due process of both the
State and the accused. The State is entitled to due process in criminal
cases as much as the accused.
Due process has never been and perhaps can never be precisely
defined. It is not a technical conception with a fixed content unrelated to
1a\^/phi 1.net
time, place and circumstances. The phrase expresses the requirement of
fundamental fairness, a requisite whose meaning can be as opaque as its
importance is lofty.30 In determining what fundamental fairness consists of
in a particular situation, relevant precedents must be considered and the
interests that are at stake; private interests, as well as the interests of the
government must be assessed. In this case, in holding that the new rule
has prospective and not retroactive application, the Court took into
consideration not only the interests of the respondent but all other
accused, whatever their station in life may be. The interest of the State in
the speedy, impartial and inexpensive disposition of criminal cases was
likewise considered.
The Respondent Failed to Comply with the Essential Prerequisites of
Section 8, Rule 117 of the Revised Rules of Criminal Procedure
The respondent argues that the issue involved in the Court of Appeals is
entirely different from the issue involved in the present recourse; hence,
any admissions he made in the court below are not judicial admissions in
this case. He asserts that the issue involved in the CA was whether or not
he was placed in double jeopardy when he was charged with murder in
Criminal Cases Nos. 01-101102 to 01-101112 despite the dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689; whereas the issue in
this Court is whether the prosecution of Criminal Cases Nos. 01-101102
to 01-101112 was barred by Section 8, Rule 117 of the RRCP. The
respondent avers that the proceedings in the appellate court are different
from those in this Court.
The respondent posits that this Court erred in giving considerable weight
to the admissions he made in his pleadings and during the proceedings in
the CA. He stresses that judicial admissions may only be used against a
party if such admissions are (a) made in the course of the proceedings in
the same case; and (b) made regarding a relevant fact, pursuant to
Section 4, Rule 129 and Section 26, Rule 130 of the Rules of Evidence.
He contends that contrary to the ruling of the Court, when he filed his
motion for the judicial determination of probable cause in Criminal Cases
Nos. Q-99-81679 to Q-99-81689, he thereby prayed for the dismissal of
the said cases. His motion carried with it, at the very least, the prayer for
the dismissal of the criminal cases. Absent a finding of probable cause,
Judge Agnir, Jr. had no recourse but to dismiss the criminal cases.
Moreover, the respondent avers that his motion included the general
prayer "for such other reliefs as may be equitable in the premises." The
respondent also points out that the public prosecutor agreed to the
averments in his motion as the latter did not even file any motion for the
reconsideration of Judge Agnir, Jr.’s order dismissing the cases.
The respondent further contends that the Court is not a trier of facts. It
has no means to ascertain or verify as true the contrasting claims of the
parties on the factual issues, a function best left to the trial court as the
trier of facts. He posits that there is a need for the case to be remanded
to the RTC to enable him to present evidence on whether or not Judge
Agnir, Jr. complied with the notice requirements of Section 8. Echoing the
May 28, 2002 ruling of this Court, the respondent contends that it is not
fair to expect the element of notice under Section 8 to be litigated before
Judge Agnir, Jr., for the said rule was not yet in existence at the time he
filed his motion for a determination of probable cause.
85
The respondent avers that the requirement for notices to the offended
parties under Section 8 is a formal and not an essential requisite. In
criminal cases, the offended party is the State and the role of the private
complainant is limited to the determination of the civil liability of the
accused. According to the respondent, notice to the prosecution provides
sufficient safeguard for the private complainant to recover on the civil
liability of the accused based on the delicts; after all, the prosecution of
the offense is under the control and direction of the public prosecutor.
The contentions of the respondent have no merit.
First. The issue posed by the respondent in the CA and in this Court are
the same. To recall, in Civil Case No. 01-100933,31 the
respondent32 sought injunctive relief from the RTC of Manila on his claim
that in conducting a preliminary investigation in Criminal Cases Nos. 01-
101102 to 01-101112, the petitioners thereby placed him in double
jeopardy under Section 7, Rule 117 of the RRCP.33 When the RTC denied
his plea for injunctive relief, the respondent filed his petition for certiorari
in the CA, again invoking his right against double jeopardy, praying that:
13. Inasmuch as the case subject of the "preliminary investigation" was
dismissed for the reasons mentioned, there currently exists no complaint
upon which a valid investigation can be had in light of the clear provisions
of Rule 110 which requires the existence of a "sworn written statement
charging a person with an offense" as basis for the commencement of a
preliminary investigation under Rule 112.
1awphi1.nét
For petitioner, the investigation covers exactly the same offenses over
which he had been duly arraigned and a plea validly entered before the
Sandiganbayan (in Criminal Cases Nos. 23047 to 57) before its remand
to the QC RTC. Hence, to proceed therewith on similar charges will put
him in jeopardy of being twice punished therefor (Article III, §21,
Constitution).34
The respondent (petitioner therein) contended that the dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 by Judge Agnir, Jr.
amounted to a judgment of acquittal; hence, he could no longer be
charged and prosecuted anew for the same offense without violating his
right against double jeopardy. However, the respondent filed a second
amended petition wherein he invoked for the first time Section 8 of Rule
117 of the RRCP:
(e) the new criminal cases for Murder filed by respondents against
petitioner and the other accused on June 6, 2001 (docketed as Criminal
Cases Nos. 01-101102 to 01-101112) and pending before respondent
Judge Yadao (Annex B) is dismissible on its face as they involve exactly
the same accused, facts, and offenses which had previously been
dismissed by the QC RTC in Criminal Cases Nos. Q-99-81679 to 89 on
March 29, 1999, hence, can no longer be revived two (2) years after such
dismissal in accordance with the clear provisions of Section 8, Rule 117.35
Indeed, the CA granted the respondent’s petition based on Section 8,
Rule 117 of the RRCP. In this case, the respondent invoked the same
rule and the Constitution. Thus, during the oral arguments in this Court,
the respondent, through counsel, admitted that he was indeed invoking
Section 8 anew and the provisions of the Constitution on double
jeopardy:
JUSTICE PANGANIBAN:
You are saying that Sen. Lacson can no longer be prosecuted
forever for that crime, for the killing of the 11 in 1995?
ATTY. FORTUN:
That is my submission, Your Honor.
JUSTICE PANGANIBAN:
Let us see your reason for it?
ATTY. FORTUN:36
First, are you saying that double jeopardy applies or not?
JUSTICE PANGANIBAN:37
Allow me to qualify the effects of double jeopardy occur with
permanent dismissal that is my submission.
ATTY. FORTUN:38
No, no, I am not talking of the effects, I am talking of the doctrine,
you are not invoking the doctrine of double jeopardy?
86
ATTY. FORTUN: JUSTICE PANGANIBAN:

Your Honor, double jeopardy does not apply Section 8, 117 they So, the answer is yes?
are (interrupted)
ATTY. FORTUN:
JUSTICE PANGANIBAN:
No, Your Honor, we were saying that precisely a permanent
That is right. dismissal vests the rights of double jeopardy upon the accused
who invokes it.
ATTY. FORTUN:
JUSTICE PANGANIBAN:
They are two different claims.
What you are saying is the effects, I am not asking about the
JUSTICE PANGANIBAN: effects, I will ask that later.

That is what I am trying to rule out so that we do not have to ATTY. FORTUN:
discuss it.
They are two different (interrupted)
ATTY. FORTUN:
JUSTICE PANGANIBAN:
Very well, Your Honor.
Later, I am asking about doctrines. Since you are not invoking the
JUSTICE PANGANIBAN: doctrine of double jeopardy you are resting your case win or lose,
sink or sail on the application of 8,117?
You are not invoking double jeopardy?
ATTY. FORTUN:
ATTY. FORTUN:
On the constitutional right of the accused under Section 16 of
As I mentioned we are saying that the effects of a permanent Article 3 which is speedy disposition of cases which implemented
dismissal vest the effects (interrupted) 8,817, that is our arguments in this bar.

JUSTICE PANGANIBAN: JUSTICE PANGANIBAN:

No, I am not talking of the effects, I am asking about the Are you not resting on 8,117?
application, you are not asking the Court to apply the doctrine of
double jeopardy to prevent a prosecution of Mr. Lacson? ATTY. FORTUN:

ATTY. FORTUN: That and the constitutional provision, Your Honor.

Because the element of double jeopardy cannot apply 8, 117. JUSTICE PANGANIBAN:

87
So, you are resting on 8,117? Do we get it from you that it is your stand that this is applicable to
the case at bar?
ATTY. FORTUN:
ATTY. FORTUN:
Not exclusive, Your Honor.
It is my submission, that it is, Your Honor. In addition, of course,
JUSTICE PANGANIBAN: to my proposition that Mr. Lacson is covered by the rule on
double jeopardy as well, because he had already been arraigned
And the Constitution? before the Sandiganbayan prior to the case being remanded to
the RTC.
ATTY. FORTUN:
JUSTICE SALONGA:
The Constitution which gave life to 8,117.
You are referring to those cases which were dismissed by the
RTC of Quezon City.
JUSTICE PANGANIBAN:
ATTY. FORTUN:
To speedy disposition?
Yes, Your Honor.
ATTY. FORTUN:
JUSTICE SALONGA:
Yes, Your Honor.
And it is your stand that the dismissal made by the Court was
JUSTICE PANGANIBAN:
provisional in nature?
Can a Court, let us see your theory then – your theory rest on two
ATTY. FORTUN:
provisions: first, the Rules of Court 8,117 and Second, the
Constitution on speedy disposition?
It was in that the accused did not ask for it. What they wanted at
the onset was simply a judicial determination of probable cause
ATTY. FORTUN:
for warrants of arrest issued. Then Judge Agnir, [Jr.] upon the
presentation by the parties of their witnesses, particularly those
Yes, Your Honor.39 who had withdrawn their affidavits, made one further conclusion
that not only was this case lacking in probable cause for purposes
Second. The respondent’s answers to the questions of Madame of the issuance of an arrest warrant but also it did not justify
Justice Josefina Salonga during the hearing in the CA where he proceeding to trial.
admitted, through counsel, that he gave no express conformity to
the dismissal of the cases by Judge Agnir, Jr., were in relation to JUSTICE SALONGA:
Section 8 of Rule 117 and not to Section 7 of Rule 117 on double
jeopardy, thus:
And it is expressly provided under Section 8 that a case shall not
be provisionally dismissed except [if] it is with the express
JUSTICE SALONGA: conformity of the accused.

88
ATTY. FORTUN:
That is correct, Your Honor.
JUSTICE SALONGA:
And with notice to the offended party.
ATTY. FORTUN:
That is correct, Your Honor.
JUSTICE SALONGA:
Was there an express conformity on the part of the accused?
ATTY. FORTUN:
There was none, Your Honor. We were not asked to sign any
order, or any statement which would normally be required by the
Court on pre-trial or on other matters, including other provisional
dismissal. My very limited practice in criminal courts, Your Honor,
had taught me that a judge must be very careful on this matter of
provisional dismissal. In fact, they ask the accused to come
forward, and the judge himself or herself explains the implications
of a provisional dismissal.40
The respondent, through counsel, even admitted that despite his
plea for equitable relief in his motion for a judicial determination of
probable cause in the RTC, he did not agree to a provisional
dismissal of the cases. The respondent insisted that the only
relief he prayed for before Judge Agnir, Jr. was that warrants for
his arrest be withheld pending a finding of probable cause. He
asserted that the judge did not even require him to agree to a
provisional dismissal of the cases:
JUSTICE ROSARIO:
You were present during the proceedings?
ATTY. FORTUN:
Yes, Your Honor.
JUSTICE ROSARIO:
You represented the petitioner in this case?
ATTY. FORTUN:
That is correct, Your Honor. And there was nothing of that
sort which the good Judge Agnir, [Jr.] who is most
knowledgeable in criminal law, had done in respect of
provisional dismissal or the matter of Mr. Lacson agreeing to
the provisional dismissal of the case.
JUSTICE GUERRERO:
Now, you filed a motion, the other accused then filed a motion for
a judicial determination of probable cause?
ATTY. FORTUN:
Yes, Your Honor.
JUSTICE GUERRERO:
Did you make any alternative prayer in your motion that if there is
no probable cause what should the Court do?
ATTY. FORTUN:
That the arrest warrants only be withheld. That was the only
prayer that we asked. In fact, I have a copy of that particular
motion, and if I may read my prayer before the Court, it said:
"Wherefore, it is respectfully prayed that (1) a judicial
determination of probable cause pursuant to Section 2, Article III
of the Constitution be conducted, and for this purpose, an order
be issued directing the prosecution to present private
complainants and their witnesses at the scheduled hearing for
that purpose; and (2) the warrants for the arrest of the accused
be withheld, or, if issued, recalled in the meantime until resolution
of this incident."
89
JUSTICE GUERRERO:
There is no general prayer for any further relief?
ATTY. FORTUN:
There is but it simply says other equitable reliefs are prayed for.
JUSTICE GUERRERO:
Don’t you surmise Judge Agnir, [Jr.] now a member of this Court,
precisely addressed your prayer for just and equitable relief to
dismiss the case because what would be the net effect of a
situation where there is no warrant of arrest being issued without
dismissing the case?
ATTY. FORTUN:
Yes, Your Honor. I will not second say (sic) yes the Good
Justice, but what is plain is we did not agree to the
provisional dismissal, neither were we asked to sign any
assent to the provisional dismissal.
JUSTICE GUERRERO:
If you did not agree to the provisional dismissal, did you not file
any motion for reconsideration of the order of Judge Agnir, [Jr.]
that the case should be dismissed?
ATTY. FORTUN:
I did not, Your Honor, because I knew fully well at that time
that my client had already been arraigned, and the
arraignment was valid as far as I was concerned. So, the
dismissal, Your Honor, by Judge Agnir operated to benefit
me, and therefore I did not take any further step in addition
to rocking the boat or clarifying the matter further because it
probably could prejudice the interest of my client.
JUSTICE GUERRERO:
Continue.41
In his memorandum, in lieu of the oral argument filed with the Court of
Appeals, the respondent declared in no uncertain terms that:
Soon thereafter, the SC in early 1999 rendered a decision declaring the
Sandiganbayan without jurisdiction over the cases. The records were
remanded to the QC RTC. Upon raffle, the case was assigned to Branch
91. Petitioner and the others promptly filed a motion for judicial
determination of probable cause (Annex B). He asked that warrants for
his arrest not be issued. He did not move for the dismissal of the
Informations, contrary to respondent OSG’s claim.42
Section 4, Rule 129 of the Revised Rules of Court reads:
Sec. 4. Judicial admissions. – An admission, verbal or written, made by a
party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made.
A judicial admission is a formal statement made either by a party or his or
her attorney, in the course of judicial proceeding which removes an
admitted fact from the field of controversy. It is a voluntary concession of
fact by a party or a party’s attorney during such judicial proceedings,
including admissions in pleadings made by a party.43 It may occur at any
point during the litigation process. An admission in open court is a judicial
admission.44 A judicial admission binds the client even if made by his
counsel.45 As declared by this Court:
... [I]n fact, "judicial admissions are frequently those of counsel or of
attorney of record, who is, for the purpose of the trial, the agent of his
client. When such admissions are made ... for the purpose of dispensing
with proof of some fact, ... they bind the client, whether made during, or
even after the trial."46
When the respondent admitted that he did not move for the dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 in his motion for a
judicial determination of probable cause, and that he did not give his
express consent to the provisional dismissal of the said cases, he in fact
admitted that one of the essential requisites of Section 8, Rule 117 was
absent.
The respondent’s contention that his admissions made in his pleadings
and during the hearing in the CA cannot be used in the present case as
they were made in the course of a different proceeding does not hold
90
water. It should be borne in mind that the proceedings before the Court
was by way of an appeal under Rule 45 of the Rules of Court, as
amended, from the proceedings in the CA; as such, the present recourse
is but a mere continuation of the proceedings in the appellate court. This
is not a new trial, but a review of proceedings which commenced from the
trial court, which later passed through the CA. The respondent is bound
by the judicial admissions he made in the CA, and such admissions so
hold him in the proceedings before this Court. As categorically stated in
Habecker v. Clark Equipment Company:47
... [J]udicial admissions on issues of fact, including those made by
counsel on behalf of a client during a trial, are binding "for the purpose of
the case ... including appeals."
While it may be true that the trial court may provisionally dismiss a
criminal case if it finds no probable cause, absent the express consent of
the accused to such provisional dismissal, the latter cannot thereafter
invoke Section 8 to bar a revival thereof. Neither may the accused do so
simply because the public prosecutor did not object to a motion of the
accused for a judicial determination of probable cause or file a motion for
the reconsideration of the order of dismissal of the case. Even a cursory
reading of the respondent’s motion for a judicial determination of
probable cause will show that it contained no allegation that there was no
probable cause for the issuance of a warrant for the respondent’s arrest
as a prayer for the dismissal of the cases. The respondent was only
asking the court to determine whether or not there was probable cause
for the issuance of a warrant for his arrest and in the meantime, to hold in
abeyance the issuance of the said warrant. Case law has it that a prayer
for equitable relief is of no avail, unless the petition states facts which will
authorize the court to grant such relief.48 A court cannot set itself in
motion, nor has it power to decide questions except as presented by the
parties in their pleadings. Anything that is resolved or decided beyond
them is coram non judice and void.49
Third. There is no need for the Court to remand the instant case to the
trial court to enable the respondent to adduce post facto evidence that
the requisite notices under Section 8 had been complied with by Judge
Agnir, Jr. The Court has thoroughly examined the voluminous records
from the Sandiganbayan and the RTC50 and found no proof that the
requisite notices were even served on all the heirs of the victims. The
respondent himself admitted that, as held by this Court, in its May 28,
2002 Resolution, "Judge Agnir, Jr. could not have complied with the
mandate under Section 8 because said rule had yet to exist."51
One final matter. The records show that Criminal Cases Nos. 01-101102
to 01-101112 were assigned, through the customary raffle of cases, to
Branch 81 of the RTC of Quezon City, the same branch which dismissed
Criminal Cases Nos. 99-81679 to 99-81689.52 In the April 1, 2003
Resolution of the Court, the Presiding Judge of Branch 81 of the RTC of
Quezon City was directed to try and decide Criminal Cases Nos. 01-
101102 to 01-101112 with reasonable dispatch. The Court notes,
however, that in Administrative Order No. 104-96, it designated six
branches of the RTC of Quezon City53 as special courts, exclusively to try
and decide heinous crimes under Rep. Act No. 7659. Since the accused
in the said cases are charged with murder, which under Rep. Act No.
7659, is classified as a heinous crime, the above cases should be
consolidated and re-raffled by the Executive Judge of the RTC of Quezon
City to a branch thereof designated as a special court, exclusively to try
and decide heinous crimes.
IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacson’s
Omnibus Motion and Motion to Set for Oral Arguments are DENIED. The
respondent’s Motion for Reconsideration and its Supplement are DENIED
WITH FINALITY. The Executive Judge of the Regional Trial Court of
Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases
Nos. 01-101102 to 01-101112 and to RE-RAFFLE the same with
dispatch to one of the branches of the Regional Trial Court of Quezon
City designated as a special court, exclusively to try and decide heinous
crimes.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Panganiban, Quisumbing, Austria-Martinez,
Carpio-Morales, and Azcuna, JJ., concur.
Puno, J., maintains his dissent.
Vitug, J., maintains his dissent and reiterate his opinion on the Court’s
resolution of 28 May 2002.
Ynares-Santiago, J., see separate dissenting opinion.
Sandoval-Gutierrez, J., see dissenting opinion.
Carpio, J., no part.
91
Corona, J., on leave.
Tinga, J., no part.
THIRD DIVISION
G.R. No. 151876 June 21, 2005
SUSAN GO and the PEOPLE OF THE PHILIPPINES, petitioners,
vs.
FERNANDO L. DIMAGIBA, respondent.
DECISION
PANGANIBAN, J.:
Administrative Circular 12-2000, as clarified by Administrative Circular
13-2001, merely establishes a rule of preference in imposing penalties for
violations of Batas Pambansa Blg. 22 (BP 22), the "Bouncing Checks
Law." When the circumstances of both the offense and the offender
indicate good faith or a clear mistake of fact without taint of negligence,
the imposition of a fine alone -- instead of imprisonment -- is the preferred
penalty. As the Circular requires a review of the factual circumstances of
a given case, it applies only to pending or future litigations. It is not a
penal law; hence, it does not have retroactive effect. Neither may it be
used to modify final judgments of conviction.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court,
assailing the October 10, 20012 and the October 11, 20013 Orders of the
Regional Trial Court (RTC) (Branch 5), Baguio City.4 The October 10,
2001 Order released Respondent Fernando L. Dimagiba from
confinement and required him to pay a fine of ₱100,000 in lieu of
imprisonment. The October 11, 2001 Order disposed as follows:
"WHEREFORE, [in] applying the doctrine as held in the above-entitled
cases in this case, the instant petition for Habeas Corpus should be, as it
is hereby, GRANTED. The Baguio City Jail Warden is hereby ordered to
IMMEDIATELY RELEASE the petitioner from confinement unless he is
being held for some other lawful cause other than by virtue of the
Sentence Mittimus dated September 28, 2001 issued by CESAR S.
VIDUYA, Clerk of Court, MTC 4, Baguio City. Further, the petitioner is
required to pay a fine in the amount of ₱100,000.00 in lieu of his
imprisonment, in addition to the civil aspect of the Joint Judgment
rendered by MTC 4 dated July 16, 1999."5
The Facts
The pertinent facts are not disputed. Respondent Fernando L. Dimagiba
issued to Petitioner Susan Go thirteen (13) checks which, when
presented to the drawee bank for encashment or payment on the due
dates, were dishonored for the reason "account closed."6 Dimagiba was
subsequently prosecuted for 13 counts of violation of BP 227 under
separate Complaints filed with the Municipal Trial Court in Cities (MTCC)
in Baguio City.8 After a joint trial, the MTCC (Branch 4) rendered a
Decision on July 16, 1999, convicting the accused in the 13 cases. The
dispositive portion reads as follows:
"WHEREFORE, in view of the foregoing disquisition, this Court finds the
evidence of the prosecution to have established the guilt of the accused
beyond reasonable doubt of the offenses charged and imposes upon the
accused the penalty of 3 months imprisonment for each count (13 counts)
and to indemnify the offended party the amount of One Million Two
Hundred Ninety Five Thousand Pesos (₱1,295,000.00) with legal interest
per annum commencing from 1996 after the checks were dishonored by
reason ‘ACCOUNT CLOSED’ on December 13, 1995, to pay attorney’s
fees of ₱15,000.00 and to pay the costs."9
The appeal of Dimagiba was raffled to Branch 4 of the RTC in Baguio
City.10 On May 23, 2000, the RTC denied the appeal and sustained his
conviction.11 There being no further appeal to the Court of Appeals (CA),
the RTC issued on February 1, 2001, a Certificate of Finality of the
Decision.12
92
Thus, on February 14, 2001, the MTCC issued an Order directing the
arrest of Dimagiba for the service of his sentence as a result of his
conviction. The trial court also issued a Writ of Execution to enforce his
civil liability.13
On February 27, 2001, Dimagiba filed a Motion for Reconsideration of the
MTCC Order. He prayed for the recall of the Order of Arrest and the
modification of the final Decision, arguing that the penalty of fine only,
instead of imprisonment also, should have been imposed on him.14 The
arguments raised in that Motion were reiterated in a Motion for the Partial
Quashal of the Writ of Execution filed on February 28, 2001.15
In an Order dated August 22, 2001, the MTCC denied the Motion for
Reconsideration and directed the issuance of a Warrant of Arrest against
Dimagiba.16 On September 28, 2001, he was arrested and imprisoned for
the service of his sentence.
On October 9, 2001, he filed with the RTC of Baguio City a Petition17 for a
writ of habeas corpus. The case was raffled to Branch 5, which
scheduled the hearing for October 10, 2001. Copies of the Order were
served on respondent’s counsels and the city warden.18
Ruling of the Regional Trial Court
Right after hearing the case on October 10, 2001, the RTC issued an
Order directing the immediate release of Dimagiba from confinement and
requiring him to pay a fine of ₱100,000 in lieu of imprisonment. However,
the civil aspect of the July 16, 1999 MTCC Decision was not touched
upon.19 A subsequent Order, explaining in greater detail the basis of the
grant of the writ of habeas corpus, was issued on October 11, 2001.20
In justifying its modification of the MTCC Decision, the RTC invoked Vaca
v. Court of Appeals21 and Supreme Court Administrative Circular (SC-AC)
No. 12-2000,22 which allegedly required the imposition of a fine only
instead of imprisonment also for BP 22 violations, if the accused was not
a recidivist or a habitual delinquent. The RTC held that this rule should be
retroactively applied in favor of Dimagiba.23 It further noted that (1) he
was a first-time offender and an employer of at least 200 workers who
would be displaced as a result of his imprisonment; and (2) the civil
liability had already been satisfied through the levy of his properties.24
On October 22, 2001, Petitioner Go filed a Motion for Reconsideration of
the RTC Orders dated October 10 and 11, 2001.25 That Motion was
denied on January 18, 2002.26
Hence, this Petition filed directly with this Court on pure questions of
law.27
The Issues
Petitioner raises the following issues for this Court’s consideration:
"1. [The RTC] Judge was utterly devoid of jurisdiction in
amending a final and conclusive decision of the Municipal Trial
Court, Branch 4, dated July 16, 1999, in nullifying the Sentence
Mittimus, dated September 28, 2001, issued by x x x [the]
Municipal Trial Court, Branch 4, Baguio City, and in ordering the
release of [Dimagiba] from confinement in jail for the service of
his sentence under the said final and conclusive judgment;
"2. Assuming only for the sake of argument that habeas corpus is
the proper remedy, the Petition for Habeas Corpus is utterly
devoid of merit as [Dimagiba was] not entitled to the beneficent
policy enunciated in the Eduardo Vaca and Rosa Lim cases and
reiterated in the Supreme Court Circular No. 12-2000; x x x
"3. Granting for the sake of argument that [Dimagiba was] entitled
to the beneficent policy enunciated in the Eduardo
Vaca and Rosa Lim cases and reiterated in the Supreme Court
Circular No. 12-2000, the minimum fine that should be imposed
on [Dimagiba] is one million and two hundred ninety five thousand
pesos (₱1,295,000.00) up to double the said amount or
(₱2,590,000), not just the measly amount of ₱100,000; and
"4. [The RTC] judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction in hearing and deciding
[Dimagiba’s] Petition for Habeas Corpus without notice and
without affording procedural due process to the People of the
Philippines through the Office of [the] City Prosecutor of Baguio
City or the Office of the Solicitor General."28
In the main, the case revolves around the question of whether the
Petition for habeas corpus was validly granted. Hence, the Court will
discuss the four issues as they intertwine with this main question.29
93
The Court’s Ruling
The Petition is meritorious.
Main Issue:
Propriety of the Writ of Habeas Corpus
The writ of habeas corpus applies to all cases of illegal confinement or
detention in which individuals are deprived of liberty.30 It was devised as a
speedy and effectual remedy to relieve persons from unlawful restraint;
or, more specifically, to obtain immediate relief for those who may have
been illegally confined or imprisoned without sufficient cause and thus
deliver them from unlawful custody.31 It is therefore a writ of inquiry
intended to test the circumstances under which a person is detained.32
The writ may not be availed of when the person in custody is under a
judicial process or by virtue of a valid judgment.33 However, as a post-
conviction remedy, it may be allowed when, as a consequence of a
judicial proceeding, any of the following exceptional circumstances is
attendant: (1) there has been a deprivation of a constitutional right
resulting in the restraint of a person; (2) the court had no jurisdiction to
impose the sentence; or (3) the imposed penalty has been
excessive, thus voiding the sentence as to such excess.34
In the present case, the Petition for a writ of habeas corpus was
anchored on the ruling in Vaca and on SC-AC No. 12-2000, which
allegedly prescribed the imposition of a fine, not imprisonment, for
convictions under BP 22. Respondent sought the retroactive effect of
those rulings, thereby effectively challenging the penalty imposed on him
for being excessive. From his allegations, the Petition appeared sufficient
in form to support the issuance of the writ.
However, it appears that respondent has previously sought the
modification of his sentence in a Motion for Reconsideration35 of the
MTCC’s Execution Order and in a Motion for the Partial Quashal of the
Writ of Execution.36 Both were denied by the MTCC on the ground that it
had no power or authority to amend a judgment issued by the RTC.
In his Petition for habeas corpus, respondent raised the same arguments
that he had invoked in the said Motions. We believe that his resort to this
extraordinary remedy was a procedural infirmity. The remedy should
have been an appeal of the MTCC Order denying his Motions, in which
he should have prayed that the execution of the judgment be stayed. But
he effectively misused the action he had chosen, obviously with the intent
of finding a favorable court. His Petition for a writ of habeas corpus was
clearly an attempt to reopen a case that had already become final and
executory. Such an action deplorably amounted to forum shopping.
Respondent should have resorted to the proper, available remedy instead
of instituting a different action in another forum.
The Court also finds his arguments for his release insubstantial to
support the issuance of the writ of habeas corpus.
Preference in the Application of Penalties for Violation of BP 22
The following alternative penalties are imposable under BP 22: (1)
imprisonment of not less than 30 days, but not more than one year; (2) a
fine of not less or more than double the amount of the check, a fine that
shall in no case exceed ₱200,000; or (3) both such fine and
imprisonment, at the discretion of the court.37
SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001,38 established
a rule of preference in imposing the above penalties.39 When the
circumstances of the case clearly indicate good faith or a clear mistake of
fact without taint of negligence, the imposition of a fine alone may be
considered as the preferred penalty.40 The determination of the
circumstances that warrant the imposition of a fine rests upon the trial
judge only.41 Should the judge deem that imprisonment is appropriate,
such penalty may be imposed.42
SC-AC No. 12-2000 did not delete the alternative penalty of
imprisonment. The competence to amend the law belongs to the
legislature, not to this Court.43
Inapplicability of SC-AC No. 12-2000
Petitioners argue that respondent is not entitled to the benevolent policy
enunciated in SC-AC No. 12-2000, because he is not a "first time
offender."44 This circumstance is, however, not the sole factor in
determining whether he deserves the preferred penalty of fine alone. The
penalty to be imposed depends on the peculiar circumstances of each
case.45 It is the trial court’s discretion to impose any penalty within the
confines of the law. SC-AC No. 13-2001 explains thus:
94
"x x x. Administrative Circular No. 12-2000 establishes a rule of
preference in the application of the penal provisions of BP 22 such that
where the circumstances of both the offense and the offender clearly
indicate good faith or a clear mistake of fact without taint of negligence,
the imposition of a fine alone should be considered as the more
appropriate penalty. Needless to say, the determination of whether the
circumstances warrant the imposition of a fine alone rests solely upon the
Judge. x x x.
It is, therefore, understood that:
xxxxxxxxx
"2. The Judges concerned, may in the exercise of sound discretion, and
taking into consideration the peculiar circumstances of each case,
determine whether the imposition of a fine alone would best serve the
interests of justice, or whether forbearing to impose imprisonment would
depreciate the seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperatives of justice;"
The Court notes that the Petition for a writ of habeas corpus relied mainly
on the alleged retroactivity of SC-AC No. 12-2000, which supposedly
favored BP 22 offenders.46 On this point, Dimagiba contended that his
imprisonment was violative of his right to equal protection of the laws,
since only a fine would be imposed on others similarly situated.47
The rule on retroactivity states that criminal laws may be applied
retroactively if favorable to the accused. This principle, embodied in the
Revised Penal Code,48 has been expanded in certain instances to cover
special laws.49
The issue of retroactivity of SC-AC No. 12-2000 was settled in De Joya v.
Jail Warden of Batangas City,50 which we quote:
"Petitioner's reliance of our ruling in Ordoñez v. Vinarao that a convicted
person is entitled to benefit from the reduction of penalty introduced by
the new law, citing People v. Simon, is misplaced. Thus, her plea that as
provided for in Article 22 of the Revised Penal Code, SC Admin. Circular
No. 12-2000 as modified by SC Admin. Circular No. 13-2001 should
benefit her has no basis.
"First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article
22 of the Revised Penal Code is not applicable. The circular applies only
to those cases pending as of the date of its effectivity and not to cases
already terminated by final judgment.
"Second. As explained by the Court in SC Admin. Circular No. 13-2001,
SC Admin. Circular No. 12-2000 merely lays down a rule of preference in
the application of the penalties for violation of B.P. Blg. 22. It does not
amend B.P. Blg. 22, nor defeat the legislative intent behind the law. SC
Admin. Circular No. 12-2000 merely urges the courts to take into account
not only the purpose of the law but also the circumstances of the accused
-- whether he acted in good faith or on a clear mistake of fact without taint
of negligence -- and such other circumstance which the trial court or the
appellate court believes relevant to the penalty to be imposed."51
Because the Circular merely lays down a rule of preference, it serves
only as a guideline for the trial courts. Thus, it is addressed to the judges,
who are directed to consider the factual circumstances of each case prior
to imposing the appropriate penalty. In other words, the Administrative
Circular does not confer any new right in favor of the accused, much less
those convicted by final judgment.
The competence to determine the proper penalty belongs to the court
rendering the decision against the accused.52 That decision is subject
only to appeal on grounds of errors of fact or law, or grave abuse of
discretion amounting to lack or excess of jurisdiction. Another trial court
may not encroach upon this authority. Indeed, SC-AC No. 12-2000
necessarily requires a review of all factual circumstances of each case.
Such a review can no longer be done if the judgment has become final
and executory.
In the present case, the MTCC of Baguio City had full knowledge of all
relevant circumstances from which respondent’s conviction and sentence
were based. The penalty imposed was well within the confines of the law.
Upon appeal, the conviction was sustained by RTC-Branch 4 of Baguio
City. Eventually, the Decision attained finality. Hence, RTC-Branch 5 did
not have the jurisdiction to modify the lawful judgment in the guise of
granting a writ of habeas corpus.
The doctrine of equal protection of laws53 does not apply for the same
reasons as those on retroactivity. Foremost of these reasons is that the
Circular is not a law that deletes the penalty of imprisonment. As
explained earlier, it is merely a rule of preference as to which penalty
should be imposed under the peculiar circumstances of a case. At any
95
rate, this matter deserves scant consideration, because respondent failed
to raise any substantial argument to support his contention.54
Modification of Final Judgment Not Warranted
The Court is not unmindful of So v. Court of Appeals,55 in which the final
judgment of conviction for violation of BP 22 was modified by the deletion
of the sentence of imprisonment and the imposition of a fine. That case
proceeded from an "Urgent Manifestation of an Extraordinary
Supervening Event,"56 not from an unmeritorious petition for a writ of
habeas corpus, as in the present case. The Court exercised in that case
its authority to suspend or to modify the execution of a final judgment
when warranted or made imperative by the higher interest of justice or by
supervening events.57 The supervening event in that case was the
petitioner’s urgent need for coronary rehabilitation for at least one year
under the direct supervision of a coronary care therapist; imprisonment
would have been equivalent to a death sentence.58
The peculiar circumstances of So do not obtain in the present case.
Respondent’s supposed "unhealthy physical condition due to a triple by-
pass operation, and aggravated by hypertension," cited by the RTC in its
October 10, 2001 Order,59 is totally bereft of substantial proof. The Court
notes that respondent did not make any such allegation in his Petition for
habeas corpus. Neither did he mention his physical state in his
Memorandum and Comment submitted to this Court.
Respondent seeks the retroactive application of SC-AC No. 12-2000 in
his favor on the basis alone of the alleged settlement of his civil
liability.60 Citing Griffith v. Court of Appeals,61 he theorizes that answering
for a criminal offense is no longer justified after the settlement of the debt.
Respondent, however, misreads Griffith. The Court held in that case that
convicting the accused who, two years prior to the filing of the BP 22
cases, had already paid his debt (from which the checks originated) was
contrary to the basic principles of fairness and justice.62 Obviously, that
situation is not attendant here.
The civil liability in the present case was satisfied through the levy and
sale of the properties of respondent only after the criminal case had been
terminated with his conviction.63 Apparently, he had sufficient properties
that could have been used to settle his liabilities prior to his conviction.
Indeed, such an early settlement would have been an indication that he
was in good faith, a circumstance that could have been favorably
considered in determining his appropriate penalty.
At any rate, civil liability differs from criminal liability.64 What is punished in
the latter is not the failure to pay the obligation, but the issuance of
checks that subsequently bounced or were dishonored for insufficiency or
lack of funds.65 The Court reiterates the reasons why the issuance of
worthless checks is criminalized:
"The practice is prohibited by law because of its deleterious effects on
public interest. The effects of the increase of worthless checks transcend
the private interest of the parties directly involved in the transaction and
touches the interest of the community at large. The mischief it creates is
not only a wrong to the payee or holder, but also an injury to the public.
The harmful practice of putting valueless commercial papers in circulation
multiplied a thousand-fold can very well pollute the channels of trade and
commerce, injure the banking system and eventually hurt the welfare of
society and the public interest. The law punishes the act not as an
offense against property but an offense against public order."66
WHEREFORE, the Petition is GRANTED and the assailed
Orders NULLIFIED. Respondent’s Petition for habeas corpus is
hereby DENIED. Let this case be REMANDED to MTCC of Baguio City
for the re-arrest of respondent and the completion of his sentence.
No pronouncement as to costs.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.
MALACAÑANG
Manila
PRESIDENTIAL DECREE No. 1599
ESTABLISHING AN EXCLUSIVE ECONOMIC ZONE AND FOR OTHER
PURPOSES
WHEREAS, an exclusive economic zone extending to a distance of two
hundred nautical miles from the baselines from which the territorial sea is
96
measured is vital to the economic survival and development of the
Republic of the Philippines;
WHEREAS, such a zone is now a recognized principle of international
law;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution, do
hereby decree and order:
Section 1. There is hereby established a zone to be known as the
exclusive economic zone of the Philippines. The exclusive economic
zone shall extend to a distance of two hundred nautical miles beyond and
from the baselines from which the territorial sea is measured: Provided,
That, where the outer limits of the zone as thus determined overlap the
exclusive economic zone of an adjacent or neighboring state, the
common boundaries shall be determined by agreement with the state
concerned or in accordance with pertinent generally recognized principles
of international law on delimitation.
Section 2. Without prejudice to the rights of the Republic of the
Philippines over it territorial sea and continental shelf, it shall have and
exercise in the exclusive economic zone established herein the following;
(a) Sovereignty rights for the purpose of exploration and
exploitation, conservation and management of the natural
resources, whether living or non-living, both renewable and non-
renewable, of the sea-bed, including the subsoil and the
superjacent waters, and with regard to other activities for the
economic exploitation and exploration of the resources of the
zone, such as the production of energy from the water, currents
and winds;
(b) Exclusive rights and jurisdiction with respect to the
establishment and utilization of artificial islands, off-shore
terminals, installations and structures, the preservation of the
marine environment, including the prevention and control of
pollution, and scientific research;
(c) Such other rights as are recognized by international law or
state practice.
Section 3. Except in accordance with the terms of any agreement
entered into with the Republic of the Philippines or of any license granted
by it or under authority by the Republic of the Philippines, no person
shall, in relation to the exclusive economic zone:
(a) explore or exploit any resources;
(b) carry out any search, excavation or drilling operations:
(c) conduct any research;
(d) construct, maintain or operate any artificial island, off-shore
terminal, installation or other structure or device; or
(e) perform any act or engage in any activity which is contrary to,
or in derogation of, the sovereign rights and jurisdiction herein
provided.
Nothing herein shall be deemed a prohibition on a citizen of the
Philippines, whether natural or juridical, against the performance of any of
the foregoing acts, if allowed under existing laws.
Section 4. Other states shall enjoy in the exclusive economic zone
freedoms with respect to navigation and overflight, the laying of
submarine cables and pipelines, and other internationally lawful uses of
the sea relating to navigation and communications.
Section 5. (a) The President may authorize the appropriate government
office/agency to make and promulgate such rules and regulations which
may be deemed proper and necessary for carrying out the purposes of
this degree.
(b) Any person who shall violate any provision of this decree or of
any rule or regulation promulgated hereunder and approved by
the President shall be subject to a fine which shall not be less
than two thousand pesos (P2,000.00) nor be more than one
hundred thousand pesos (100,000.00) or imprisonment ranging
from six (6) months to ten (10) years, or both such fine and
imprisonment, in the discretion of the court. Vessels and other
equipment or articles used in connection therewith shall be
subject to seizure and forfeiture.
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Section 6. This Decree shall take effect thirty (30) days after publication
in the Official Gazette.
Done in the City of Manila, this 11th day of June, in the year of Our Lord,
nineteen hundred and seventy-eight.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu
finding the defendant guilty of a violation of section 4 of Act No. 2381 (the
Opium Law), and sentencing him to two years imprisonment, to pay a fine
of P300 or to suffer subsidiary imprisonment in case of insolvency, and to
pay the costs.
The following facts are fully proven: The defendant is a subject of China
employed as a fireman on the steamship Shun Chang. The Shun
Chang is a foreign steamer which arrived at the port of Cebu on April 25,
1917, after a voyage direct from the port of Saigon. The defendant
bought eight cans of opium in Saigon, brought them on board the
steamship Shun Chang, and had them in his possession during the trip
from Saigon to Cebu. When the steamer anchored in the port of Cebu on
April 25, 1917, the authorities on making a search found the eight cans of
opium above mentioned hidden in the ashes below the boiler of the
steamer's engine. The defendant confessed that he was the owner of this
opium, and that he had purchased it in Saigon. He did not confess,
however, as to his purpose in buying the opium. He did not say that it
was his intention to import the prohibited drug into the Philippine Islands.
No other evidence direct or indirect, to show that the intention of the
accused was to import illegally this opium into the Philippine Islands, was
introduced.
Has the crime of illegal importation of opium into the Philippine Islands
been proven?
Two decisions of this Court are cited in the judgment of the trial court, but
with the intimation that there exists inconsistently between the doctrines
laid down in the two cases. However, neither decision is directly a
precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the
opinion handed down by the Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in
these Islands, aboard a foreign vessel in transit, in any of their
ports, does not, as a general rule, constitute a crime triable by the
courts of this country, on account of such vessel being
considered as an extension of its own nationality, the same rule
does no apply when the article, whose use is prohibited within the
Philippine Islands, in the present case a can of opium, is landed
from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a
violation of the penal law in force at the place of the commission
of the crime, only the court established in the said place itself has
competent jurisdiction, in the absence of an agreement under an
international treaty.
1awphil.net
A marked difference between the facts in the Look Chaw case and the
facts in the present instance is readily observable. In the Look Chaw
case, the charge case the illegal possession and sale of opium — in the
present case the charge as illegal importation of opium; in the Look Chaw
case the foreign vessel was in transit — in the present case the foreign
vessel was not in transit; in the Look Chaw case the opium was landed
from the vessel upon Philippine soil — in the present case of United
States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on
which resolution turned, was that in a prosecution based on the illegal
98
importation of opium or other prohibited drug, the Government must
prove, or offer evidence sufficient to raise a presumption, that the vessel
from which the drug is discharged came into Philippine waters from
a foreign country with the drug on board. In the Jose case, the
defendants were acquitted because it was not proved that the opium was
imported from a foreign country; in the present case there is no question
but what the opium came from Saigon to Cebu. However, in the opinion
in the Jose case, we find the following which may be obiter dicta, but
which at least is interesting as showing the view of the writer of the
opinion:
The importation was complete, to say the least, when the ship
carrying it anchored in Subic Bay. It was not necessary that the
opium discharged or that it be taken from the ship. It was
sufficient that the opium was brought into the waters of the
Philippine Islands on a boat destined for a Philippine port and
which subsequently anchored in a port of the Philippine Islands
with intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just
quoted, we return to an examination of the applicable provisions of the
law. It is to be noted that section 4 of Act No. 2381 begins, "Any person
who shall unlawfully import or bring any prohibited drug into the Philippine
Islands." "Import" and "bring" are synonymous terms. The Federal Courts
of the United States have held that the mere act of going into a port,
without breaking bulk, is prima facie evidence of importation.
(The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is
not the making entry of goods at the custom house, but merely the
bringing them into port; and the importation is complete before entry of
the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028;
Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium Law, we
expressly hold that any person unlawfully imports or brings any prohibited
drug into the Philippine Islands, when the prohibited drug is found under
this person's control on a vessel which has come direct from a foreign
country and is within the jurisdictional limits of the Philippine Islands. In
such case, a person is guilty of illegal importation of the drug unless
contrary circumstances exist or the defense proves otherwise. Applied to
the facts herein, it would be absurb to think that the accused was merely
carrying opium back and forth between Saigon and Cebu for the mere
pleasure of so doing. It would likewise be impossible to conceive that the
accused needed so large an amount of opium for his personal use. No
better explanation being possible, the logical deduction is that the
defendant intended this opium to be brought into the Philippine Islands.
We accordingly find that there was illegal importation of opium from a
foreign country into the Philippine Islands. To anticipate any possible
misunderstanding, let it be said that these statements do not relate to
foreign vessels in transit, a situation not present.
The defendant and appellant, having been proved guilty beyond a
reasonable doubt as charged and the sentence of the trial court being
within the limits provided by law, it results that the judgment must be
affirmed with the costs of this instance against the appellant. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner,
vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND,
UNITED STATES ARMY, respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas
against the Commanding General Philippine-Ryukyus Command, United
States Army, who is alleged to have petitioner under custody and to have
appointed a General Court-Martial to try petitioner in connection with an
offense over which the said court has no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United States
Army in the Philippines, who has been charged with disposing in the Port
of Manila Area of things belonging to the United States Army, in violation
of the 94th Article of War of the United States. He has been arrested for
that reason and a General Court-Martial appointed by respondent tried
and found him guilty and sentenced him to 15 years imprisonment. This
sentence, however, is not yet final for it is still subject to review.
99
It may be stated as a rule that the Philippines, being a sovereign nation,
has jurisdiction over all offenses committed within its territory, but it may,
by treaty or by agreement, consent that the United States or any other
foreign nation, shall exercise jurisdiction over certain offenses committed
within certain portions of said territory. On March 11, 1947, the Republic
of the Philippines and the Government of the United States of America,
entered into an agreement concerning military bases, and Article XIII
thereof is as follows:
JURISDICTION
1. The Philippines consents that the United States shall have the
right to exercise jurisdiction over the following offenses:
(a) Any offense committed by any person within any base
except where the offender and offended parties are both
Philippine citizens (not members of the armed forces of
the United States on active duty) or the offense is against
the security of the Philippines;
(b) Any offense committed outside the bases by any
member of the armed forces of the United States in which
the offended party is also a member of the armed forces
of the United States; and
(c) Any offense committed outside the bases by any
member of the armed forces of the United States against
the security of the United States.
2. The Philippines shall have the right to exercise jurisdiction over
all other offenses committed outside the bases by any member of
the armed forces of the United States.
3. Whenever for special reasons the United States may desire not
to exercise the jurisdiction reserved to it in paragraphs 1 and 6 of
this Article, the officer holding the offender in custody shall so
notify the fiscal (prosecuting attorney) of the city or province in
which the offense has been committed within ten days after his
arrest, and in such case the Philippines shall exercise jurisdiction.
4. Whenever for special reasons the Philippines may desire not to
exercise the jurisdiction reserved to it in paragraph 2 of this
Article, the fiscal (prosecuting attorney) of the city or province
where the offense has been committed shall so notify the officer
holding the offender in custody within ten days after his arrest,
and in such a case the United States shall be free to exercise
jurisdiction. If any offense falling under paragraph 2 of this article
is committed by any member of the armed forces of the United
States.
(a) While engaged in the actual performance of a specific
military duty, or
(b) during a period of national emergency declared by
either Government and the fiscal (prosecuting attorney)
so finds from the evidence, he shall immediately notify the
officer holding the offender in custody that the United
States is free to exercise jurisdiction. In the event the
fiscal (prosecuting attorney) finds that the offense was not
committed in the actual performance of a specific military
duty, the offender's commanding officer shall have the
right to appeal from such finding to the Secretary of
Justice within ten days from the receipt of the decision of
the fiscal and the decision of the Secretary of Justice shall
be final.
5. In all cases over which the Philippines exercises jurisdiction the
custody of the accused, pending trial and final judgment, shall be
entrusted without delay to the commanding officer of the nearest
base, who shall acknowledge in writing that such accused has
been delivered to him for custody pending trial in a competent
court of the Philippines and that he will be held ready to appear
and will be produced before said court when required by it. The
commanding officer shall be furnished by the fiscal (prosecuting
attorney) with a copy of the information against the accused upon
the filing of the original in the competent court.
6. Notwithstanding the foregoing provisions, it is naturally agreed
that in time of war the United States shall have the right to
exercise exclusive jurisdiction over any offenses which may be
committed by members of the armed forces of the United States
in the Philippines.
7. The United States agrees that it will not grant asylum in any of
the bases to any person fleeing from the lawful jurisdiction of the
Philippines. Should such person be found in any base, he will be
100
 surrendered on demand to the competent authorities of the
Philippines.
8. In every case in which jurisdiction over an offense is exercised
by the United States, the offended party may institute a separate
civil action against the offender in the proper court of the
Philippines to enforce the civil liability which under the laws of the
Philippines may arise from the offense.
Under paragraph 1 (a), the General Court-Martial would have jurisdiction
over the criminal case against petitioner if the offense had been
committed within a base. Under paragraph 1 (b), if the offense had been
committed outside a base, still the General Court-Martial would have
jurisdiction if the offense had been committed by a "member of the armed
forces of the United States" there being no question that the offended
party in this case is the United States. It is not necessary therefore, to
consider whether the offense is against "the security of the United States"
under paragraph 1 (c), or whether petitioner committed it in "the actual
performance of a specific military duty" or in time of a declared "national
emergency" under paragraph 4, or whether we are still in a state of war
under paragraph 6, for in all these instances the military jurisdiction
depends also upon whether the offender is a member of the armed forces
of the United States. We shall then determine in this case (1) whether the
offense has been committed within or without a base, and, in the second
instance, (2) whether the offender is or is not a member of the armed
forces of the United States.
As to the first question, Article XXVI of the Agreement provides that
"bases are those area named in Annex A and Annex B and such
additional areas as may be acquired for military purposes pursuant to the
terms of this Agreement." Among the areas specified in Annexes A and
B, there is none that has reference to the Port Area of Manila where the
offense has allegedly been committed. On the contrary, it appears in
Annex A that "army communications system" is included, but with "the
deletion of all stations in the Port of Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article is
as follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right
to occupy temporary quarters and installations now existing
outside the bases mentioned in Annex A and Annex B, for such
reasonable time, not exceeding two years, as may be necessary
to develop adequate facilities within the bases for the United
States armed forces. If circumstances require an extension of
time, such a period will be fixed by mutual agreement of the two
Governments; but such extension shall not apply to the existing
temporary quarters and installations within the limits of the City of
Manila and shall in no case exceed a period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the
Port of Manila reservation with boundaries as of 1941 will be
available for use to the United States armed forces until such time
as other arrangements can be made for the supply of the bases
by mutual agreement of the two Governments.
3. The terms of this agreement pertaining to bases shall be
applicable to temporary quarters and installations referred to in
paragraph 1 of this article while they are so occupied by the
armed forces of the United States; provided, that offenses
committed within the temporary quarters and installations located
within the present limits of the City of Manila shall not be
considered as offenses within the bases but shall be governed by
the provisions of Article XIII, paragraphs 2 and 4, except that the
election not to exercise the jurisdiction reserved to the Philippines
shall be made by the Secretary of Justice. It is agreed that the
United States shall have full use and full control of all these
quarters and installations while they are occupied by the armed
forces of the United States, including the exercise of such
measures as may be necessary to police said quarters for the
security of the personnel and property therein.
The subject matter of this article, as indicated by its heading, is
"Temporary Installations." Paragraph 1 refers to temporary quarters and
installations existing outside the bases specified in Annex A and Annex
B, which may be retained by the United States armed forces for such
reasonable time as may be necessary not exceeding two years in
duration, extendible fro not more than three years, the extension not
being applicable to existing temporary quarters and installations within
the limits of the City of Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation,
which will be available for use to the United States armed forces, also as
a temporary quarters and installations, its temporariness not being for a
101
definite period of time, but "until such time as other arrangements can be
made for supply of the bases by mutual agreement of the two
Governments." There is in paragraph 2 absolutely nothing that may be
construed as placing the Port of Manila Reservation in the category of a
permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within the
temporary quarters and installations located within the present limits of
the City of Manila shall not be considered as offenses within the bases
but shall be governed by the provisions of Article XIII, paragraphs 2 and
4." Therefore, the offense at bar cannot be considered as committed
within, but without, a base, since it has been committed in the Port of
Manila Area, which is not one of the bases mentioned in Annexes A and
B to the Agreement, and is merely temporary quarters located within the
present limits of the City of Manila.
The next inquiry is whether or not the offender may be considered as a
member of the armed forces of the United States under Article XIII,
paragraph 1 (b). As above stated, petitioner is a Filipino citizen and a
civilian employee of the United States Army in the Philippines. Under the
terms of the Agreement, a civilian employee cannot be considered as a
member of the armed forces of the United States. Articles XI, XVI and
XVIII of the Agreement make mention of civilian employees separately
from members of the armed forces of the United States, which is a
conclusive indication that under said Agreement armed forces do not
include civilian employees.
Respondent invokes Articles II of the Articles of War of the United States,
which enumerates, among the persons subject to military law, persons
accompanying or serving with the armies of the United States. But this
case should be decided not under the Articles of War, but under the
terms of the Base Agreement between the United States and the
Philippines. And not because a person is subject to military law under the
Articles of War does he become, for that reason alone, a member of the
armed forces under the Base Agreement. And even under the Articles of
War, the mere fact that a civilian employee is in the service of the United
States Army does not make him a member of the armed forces of the
United States. Otherwise, it would have been necessary for said Article to
enumerate civilian employees separately from members of the armed
forces of the United States.
Respondent maintains that petitioner has no cause of action because the
Secretary of Justice had not notified the officer holding the petitioner in
custody whether or not the Philippines desired to retain jurisdiction under
Article XXI, paragraph 3, of the Military Base Agreement. It is sufficient to
state in this connection that in cases like the present where the offender
is a civilian employee and not a member of the Unites States armed
forces, no waiver can be made either by the prosecuting attorney of by
the Secretary of Justice, under paragraphs 2 and 4 of Article XIII in
connection with paragraph 3 of Article XXI, of the Agreement.
We are, therefore, of the opinion and so hold, that the General Court-
Martial appointed by respondent has no jurisdiction to try petitioner for the
offense allegedly committed by him and, consequently, the judgment
rendered by said court sentencing the petitioner to 15 years'
imprisonment is null and void for lack of jurisdiction.
It is ordered that petitioner be released immediately by respondent
without prejudice to any criminal action which may be instituted in the
proper court of the Philippines.
Let a copy of this decision be sent immediately to the Honorable,
Secretary of Justice.
Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason,
JJ, concur.
Separate Opinions
PERFECTO, J., concurring:
One of the attributes of national sovereignty is the power to try and
punish offenses, criminal and otherwise. The exercise of that power is, by
virtue of express provision of our Constitution, vested in the Supreme
Court and in inferior courts established by law. (Sec. 1, Art. VIII) The
fundamental law refers to inferior courts created by an enactment of a
national legislature, Assembly or Congress, not to foreign courts martial,
created by foreign countries.
All this is in accordance with elemental principles of political law.
102
If petitioner is liable for a criminal offense, according to our laws, the
jurisdiction to try him belongs to a justice of the peace or municipal court
or to a court of first instance.
The jurisdiction can be transferred to other courts by virtue of a law that
may be enacted to said effect. The law, to be effective, must not violate
the constitutional Bill of Rights, among them the guarantee of fair trial in
favor of an accused, the equal protection of the law, the due process of
law, the guarantees against illegal detentions and searches, and others.
Petitioner is a Filipino citizen and a civilian employee of the U. S. Army,
rendering services in the Philippines. He attacks the power of the
Commanding General, Philippine Ryukus Command, U.S. Army, to have
him under military custody and tried by a general court-martial of said
army. Respondent invokes, in opposing the petition, the provisions of the
agreement on military Bases entered into by the Republic of the
Philippines and the government of the United States of America on March
14, 1947.
The agreement appears to be a concession to two weaknesses: the
American distrust in Philippine tribunals and Filipino yielding to much
distrust; on one hand, undisguised prejudice, — national, racial, or
otherwise, — on the other, meek submission to the natural consequences
of an unreasonable prejudice; on one side, the haughtiness of a powerful
nation, proud in the consciousness of its power, on the other, the moral
surrender of a new nation, not yet so sure in the exercise to their fullness
of sovereign prerogatives. Extra-territoriality is wrongper se.
It is, therefore, assailable on two opposing fronts. On constitutional
ground, it is hardly defensible.
The Bill of Rights has been embodied in the Constitution for the
protection of all human beings within the territorial jurisdiction of the
Philippines. All persons covered by the waivers made in the agreement,
whether Americans or Filipinos, whether citizens or aliens, are denied the
constitutional guarantee of the equal protection of the law. Their
fundamental rights are safeguarded by the Constitution, and the
agreement places them outside the Constitution.
Our conclusion is, therefore, that the agreement in question, so far as it
stipulates waiver of the jurisdiction of our courts of justice on the class of
persons mentioned therein, is null and void, being in open conflict with
clear provisions of our fundamental law.
Upon this ground, petitioner is entitled to be released by respondent and
by the court martial which tried him.
Even in the erroneous hypothesis that the waiver clauses of the
agreement are valid, we concur in the reasoning of the Chief Justice in
support of the position that petitioner is not comprehended in said waiver
clauses. With more reason, respondent has no power nor jurisdiction to
hold petitioner in confinement, nor to have him tried by a U.S. army court-
martial.
Notice must be served to the whole world that, in rendering the decision
in this case, the Supreme Court, in the fullness of judicial maturity, acted
not as a mere agency of national sovereignty, but in the consciousness
that the administration of justice, more than national, is a human function,
untethered by the narrow provincialism of the points of view of a country,
but founded on the universal and permanent interests of mankind, as
expressed in principles with equal value regardless of the hemisphere of
the latitude where a person may be placed.
There is a suggestion that, because it has not found articulate expression
in this case, it should be ignored, when it is boiling in many minds, and it
is that respondent, shielded by his military power and the overwhelming
national power of his country, may ignore our decision, and we will be
powerless to enforce it. The fact that respondent appeared before us,
through counsel, without any reservation, answers the suggestion, and
gives full justice to the sense of moral values of the respondent.
Besides, in the present state of international affairs, when America is
engaged in the noble task of making a reality the ideal of one world, it can
not compromise its moral leadership by any showing of reckless
disregard to the decision of a court of justice. The cry that there must be
one world or none can receive but one satisfactory answer; the reality of
world justice. Only in justice hinges the salvation of humanity. Only justice
can give real peace and provide the basis for contentment and
happiness.
We concur in the decision, ordering the immediate release of the
petitioner.
Republic of the Philippines
SUPREME COURT
Manila
103
 EN BANC
G.R. No. L-5270 January 15, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
H. N. BULL, defendant-appellant.
Bruce & Lawrence, for appellant.
Office of the Solicitor-General Harvey, for appellee.
ELLIOTT, J.:
Section 1 of Act No. 55, which went into effect January 1, 1901, provides
The appellant was convicted in the Court of First Instance of a violation of
that —
section 1 of Act No. 55, as amended by section 1 of Act No. 275, and
from the judgment entered thereon appealed to this court, where under
proper assignments of error he contends: (1) that the complaint does not
state facts sufficient to confer jurisdiction upon the court; (2) that under
the evidence the trial court was without jurisdiction to hear and determine
the case; (3) that Act No. 55 as amended is in violation of certain
provisions of the Constitution of the United States, and void as applied to
the facts of this case; and (4) that the evidence is insufficient to support
the conviction.
The information alleges:
That on and for many months prior to the 2d day of December,
1908, the said H. N. Bull was then and there master of a steam
sailing vessel known as the steamship Standard, which vessel
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by
was then and there engaged in carrying and transporting cattle,
adding to section 1 thereof the following:
carabaos, and other animals from a foreign port and city of
Manila, Philippine Islands; that the said accused H. N. Bull, while
master of said vessel, as aforesaid, on or about the 2d day of
December, 1908, did then and there willfully, unlawfully, and
wrongly carry, transport, and bring into the port and city of Manila,
aboard said vessel, from the port of Ampieng, Formosa, six
hundred and seventy-seven (677) head of cattle and carabaos,
without providing suitable means for securing said animals while
in transit, so as to avoid cruelty and unnecessary suffering to the
said animals, in this, to wit, that the said H. N. Bull, master, as
aforesaid, did then and there fail to provide stalls for said animals
so in transit and suitable means for trying and securing said
animals in a proper manner, and did then and there cause some
of said animals to be tied by means of rings passed through their
noses, and allow and permit others to be transported loose in the
hold and on the deck of said vessel without being tied or secured
in stalls, and all without bedding; that by reason of the aforesaid
neglect and failure of the accused to provide suitable means for
securing said animals while so in transit, the noses of some of
said animals were cruelly torn, and many of said animals were
tossed about upon the decks and hold of said vessel, and cruelly
wounded, bruised, and killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the
Philippine Commission.
The owners or masters of steam, sailing, or other vessels,
carrying or transporting cattle, sheep, swine, or other animals,
from one port in the Philippine Islands to another, or from any
foreign port to any port within the Philippine Islands, shall carry
with them, upon the vessels carrying such animals, sufficient
forage and fresh water to provide for the suitable sustenance of
such animals during the ordinary period occupied by the vessel in
passage from the port of shipment to the port of debarkation, and
shall cause such animals to be provided with adequate forage
and fresh water at least once in every twenty-four hours from the
time that the animals are embarked to the time of their final
debarkation.
The owners or masters of steam, sailing, or other vessels,
carrying or transporting cattle, sheep, swine, or other animals
from one port in the Philippine Islands to another, or from any
foreign port to any port within the Philippine Islands, shall provide
suitable means for securing such animals while in transit so as to
avoid all cruelty and unnecessary suffering to the animals, and
suitable and proper facilities for loading and unloading cattle or
other animals upon or from vessels upon which they are
transported, without cruelty or unnecessary suffering. It is hereby
made unlawful to load or unload cattle upon or from vessels by
104
 swinging them over the side by means of ropes or chains
attached to the thorns.
Section 3 of Act No. 55 provides that —
Any owner or master of a vessel, or custodian of such animals,
who knowingly and willfully fails to comply with the provisions of
section one, shall, for every such failure, be liable to pay a
penalty of not less that one hundred dollars nor more that five
hundred dollars, United States money, for each offense.
Prosecution under this Act may be instituted in any Court of First
Instance or any provost court organized in the province or port in
which such animals are disembarked.
1. It is contended that the information is insufficient because it does not
state that the court was sitting at a port where the cattle were
disembarked, or that the offense was committed on board a vessel
registered and licensed under the laws of the Philippine Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts
of First Instance or any provost court organized in the province or port in
which such animals are disembarked, and there is nothing inconsistent
therewith in Act No. 136, which provides generally for the organization of
the courts of the Philippine Islands. Act No. 400 merely extends the
general jurisdiction of the courts over certain offenses committed on the
high seas, or beyond the jurisdiction of any country, or within any of the
waters of the Philippine Islands on board a ship or water craft of any kind
registered or licensed in the Philippine Islands, in accordance with the
laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be
exercised by the Court of First Instance in any province into which such
ship or water upon which the offense or crime was committed shall come
after the commission thereof. Had this offense been committed upon a
ship carrying a Philippine registry, there could have been no doubt of the
Jurisdiction of the court, because it is expressly conferred, and the Act is
in accordance with well recognized and established public law. But
the Standard was a Norwegian vessel, and it is conceded that it was not
registered or licensed in the Philippine Islands under the laws thereof. We
have then the question whether the court had jurisdiction over an offense
of this character, committed on board a foreign ship by the master
thereof, when the neglect and omission which constitutes the offense
continued during the time the ship was within the territorial waters of the
United States. No court of the Philippine Islands had jurisdiction over an
offenses or crime committed on the high seas or within the territorial
waters of any other country, but when she came within 3 miles of a line
drawn from the headlines which embrace the entrance to Manila Bay, she
was within territorial waters, and a new set of principles became
applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le
Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her
crew were then subject to the jurisdiction of the territorial sovereign
subject through the proper political agency. This offense was committed
within territorial waters. From the line which determines these waters
the Standard must have traveled at least 25 miles before she came to
anchor. During that part of her voyage the violation of the statue
continued, and as far as the jurisdiction of the court is concerned, it is
immaterial that the same conditions may have existed while the vessel
was on the high seas. The offense, assuming that it originated at the port
of departure in Formosa, was a continuing one, and every element
necessary to constitute it existed during the voyage across the territorial
waters. The completed forbidden act was done within American waters,
and the court therefore had jurisdiction over the subject-matter of the
offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of
the court, but the objection to the jurisdiction raises the further question
whether that jurisdiction is restricted by the fact of the nationality of the
ship. Every. Every state has complete control and jurisdiction over its
territorial waters. According to strict legal right, even public vessels may
not enter the ports of a friendly power without permission, but it is now
conceded that in the absence of a prohibition such ports are considered
as open to the public ship of all friendly powers. The exemption of such
vessels from local jurisdiction while within such waters was not
established until within comparatively recent times. In 1794, Attorney-
General Bradford, and in 1796 Attorney-General Lee, rendered opinions
to the effect that "the laws of nations invest the commander of a foreign
ship of war with no exemption from the jurisdiction of the country into
which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also
supported by Lord Stowell in an opinion given by him to the British
Government as late as 1820. In the leading case of the
Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief
Justice Marshall said that the implied license under which such vessels
enter a friendly port may reasonably be construed as "containing
exemption from the jurisdiction of the sovereign within whose territory she
claims the rights of hospitality." The principle was accepted by the
Geneva Arbitration Tribunal, which announced that "the priviledge of
exterritoriality accorded to vessels of war has been admitted in the law of
nations; not as an absolute right, but solely as a proceeding founded on
the principle of courtesy and mutual deference between nations."
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(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor,
Int. Law, sec. 256; Ortolan, Dip de la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace to come and
go freely. Local official exercise but little control over their actions, and
offenses committed by their crew are justiciable by their own officers
acting under the laws to which they primarily owe allegiance. This
limitation upon the general principle of territorial sovereignty is based
entirely upon comity and convenience, and finds its justification in the fact
that experience shows that such vessels are generally careful to respect
local laws and regulation which are essential to the health, order, and
well-being of the port. But comity and convenience does not require the
extension of the same degree of exemption to merchant vessels. There
are two well-defined theories as to extent of the immunities ordinarily
granted to them, According to the French theory and practice, matters
happening on board a merchant ship which do not concern the tranquillity
of the port or persons foreign to the crew, are justiciable only by the court
of the country to which the vessel belongs. The French courts therefore
claim exclusive jurisdiction over crimes committed on board French
merchant vessels in foreign ports by one member of the crew against
another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le
Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292;
Masse, Droit Int., tome 2, p. 63.) Such jurisdiction has never been
admitted or claim by Great Britain as a right, although she has frequently
conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231;
British Territorial Waters Act, 1878.) Writers who consider exterritoriality
as a fact instead of a theory have sought to restrict local jurisdiction, but
Hall, who is doubtless the leading English authority, says that —
It is admitted by the most thoroughgoing asserters of the
territoriality of merchant vessels that so soon as the latter enter
the ports of a foreign state they become subject to the local
jurisdiction on all points in which the interests of the country are
touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a
merchant vessel enters a foreign port it is subject to the jurisdiction of the
local authorities, unless the local sovereignty has by act of acquiescence
or through treaty arrangements consented to waive a portion of such
jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec.
204; article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief
Justice Marshall, in the case of the Exchange, said that —
When merchant vessels enter for the purpose of trade, in would
be obviously in convinient and dangerous to society and would
subject the laws to continual infraction and the government to
degradation if such individual merchants did not owe temporary
and local allegiance, and were not amendable to the jurisdiction
of the country.
The Supreme Court of the United States has recently said that the
merchant vessels of one country visiting the ports of another for the
purpose of trade, subject themselves to the laws which govern the ports
they visit, so long as they remain; and this as well in war as in peace,
unless otherwise provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-
525.)
Certain limitations upon the jurisdiction of the local courts are imposed by
article 13 of the treaty of commerce and navigation between Sweden and
Norway and the United States, of July 4, 1827, which concedes to the
consul, vice-consuls, or consular agents of each country "The right to sit
as judges and arbitrators in such differences as may arise between the
captains and crews of the vessels belonging to the nation whose interests
are committed to their charge, without the interference of the local
authorities, unless the conduct of the crews or of the captains should
disturb the order or tranquillity of the country." (Comp. of Treaties in
Force, 1904, p. 754.) This exception applies to controversies between the
members of the ship's company, and particularly to disputes regarding
wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168
Mass., 188.) The order and tranquillity of the country are affected by
many events which do not amount to a riot or general public disturbance.
Thus an assault by one member of the crew upon another, committed
upon the ship, of which the public may have no knowledge whatever, is
not by this treaty withdrawn from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged
in a "quarrel" on board the vessel in the port of Galveston, Texas. They
were prosecuted before a justice of the peace, but the United States
district attorney was instructed by the Government to take the necessary
steps to have the proceedings dismissed, and the aid of the governor of
Texas was invoked with the view to "guard against a repetition of similar
proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and
Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not
appear that this "quarrel" was of such a nature as to amount to a breach
of the criminal laws of Texas, but when in 1879 the mate for the
Norwegian bark Livingston was prosecuted in the courts of Philadelphia
106
County for an assault and battery committed on board the ship while lying
in the port of Philadelphia, it was held that there was nothing in the treaty
which deprived the local courts of jurisdiction.
(Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations
were made through diplomatic channels to the State Department, and on
July 30, 1880, Mr. Evarts, Secretary of State, wrote to Count
Lewenhaupt, the Swedish and Norwegian minister, as follows:
I have the honor to state that I have given the matter careful
consideration in connection with the views and suggestion of your
note and the provisions of the thirteenth article of the treaty of
1827 between the United States and Sweden and Norway. The
stipulations contained in the last clause of that article . . . are
those under which it is contended by you that jurisdiction is
conferred on the consular officers, not only in regard to such
differences of a civil nature growing out of the contract of
engagement of the seamen, but also as to disposing of
controversies resulting from personal violence involving offense
for which the party may be held amenable under the local criminal
law.
This Government does not view the article in question as
susceptible of such broad interpretation. The jurisdiction
conferred upon the consuls is conceived to be limited to their right
to sit as judges or abitrators in such differences as may arise
between captains and crews of the vessels, where such
differences do not involve on the part of the captain or crew a
disturbance of the order or tranquillity of the country. When,
however, a complaint is made to a local magistrate, either by the
captain or one or more of the crew of the vessel, involving the
disturbance of the order or tranquillity of the country, it is
competent for such magistrate to take cognizance of the matter in
furtherance of the local laws, and under such circumstances in
the United States it becomes a public duty which the judge or
magistrate is not at liberty voluntarily to forego. In all such cases it
must necessarily be left to the local judicial authorities whether
the procedure shall take place in the United States or in Sweden
to determine if in fact there had been such disturbance of the
local order and tranquillity, and if the complaint is supported by
such proof as results in the conviction of the party accused, to
visit upon the offenders such punishment as may be defined
against the offense by the municipal law of the place." (Moore,
Int. Law Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over
offenses committed on board a merchant vessel by one member of the
crew against another which amount to a disturbance of the order or
tranquillity of the country, and a fair and reasonable construction of the
language requires un to hold that any violation of criminal laws disturbs
the order or traquillity of the country. The offense with which the appellant
is charged had nothing to so with any difference between the captain and
the crew. It was a violation by the master of the criminal law of the
country into whose port he came. We thus find that neither by reason of
the nationality of the vessel, the place of the commission of the offense,
or the prohibitions of any treaty or general principle of public law, are the
court of the Philippine Islands deprived of jurisdiction over the offense
charged in the information in this case.
It is further contended that the complaint is defective because it does not
allege that the animals were disembarked at the port of Manila, an
allegation which it is claimed is essential to the jurisdiction of the court
sitting at that port. To hold with the appellant upon this issue would be to
construe the language of the complaint very strictly against the
Government. The disembarkation of the animals is not necessary in order
to constitute the completed offense, and a reasonable construction of the
language of the statute confers jurisdiction upon the court sitting at the
port into which the animals are bought. They are then within the territorial
jurisdiction of the court, and the mere fact of their disembarkation is
immaterial so far as jurisdiction is concerned. This might be different if the
disembarkation of the animals constituted a constitutional element in the
offense, but it does not.
It is also contended that the information is insufficient because it fails to
allege that the defendant knowingly and willfully failed to provide suitable
means for securing said animals while in transit, so as to avoid cruelty
and unnecessary suffering. The allegation of the complaint that the act
was committed willfully includes the allegation that it was committed
knowingly. As said in Woodhouse vs. Rio Grande R.R. Company (67
Texas, 416), "the word 'willfully' carries the idea, when used in connection
with an act forbidden by law, that the act must be done knowingly or
intentionally; that, with knowledge, the will consented to, designed, and
directed the act." So in Wong vs. City of Astoria (13 Oregon, 538), it was
said: "The first one is that the complaint did not show, in the words of the
ordinance, that the appellant 'knowingly' did the act complained of. This
point, I think, was fully answered by the respondent's counsel — that the
words 'willfully' and 'knowingly' conveyed the same meaning. To 'willfully'
do an act implies that it was done by design — done for a certain
107
purpose; and I think that it would necessarily follow that it was 'knowingly'
done." To the same effect is Johnson vs. The People (94 Ill., 505), which
seems to be on all fours with the present case.
The evidence shows not only that the defendant's acts were knowingly
done, but his defense rests upon the assertion that "according to his
experience, the system of carrying cattle loose upon the decks and in the
hold is preferable and more secure to the life and comfort of the animals."
It was conclusively proven that what was done was done knowingly and
intentionally.
In charging an offense under section 6 of General Orders, No. 58,
paragraph 3, it is only necessary to state the act or omission complained
of as constituting a crime or public offense in ordinary and concise
language, without repitition. It need not necessarily be in the words of the
statute, but it must be in such form as to enable a person of common
understanding to know what is intended and the court to pronounce
judgment according to right. A complaint which complies with this
requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)
The Act, which is in the English language, impose upon the master of a
vessel the duty to "provide suitable means for securing such animals
while in transit, so as to avoid all cruelty and unnecessary suffering to the
animals." The allegation of the complaint as it reads in English is that the
defendant willfully, unlawfully, and wrongfully carried the cattle "without
providing suitable means for securing said animals while in transit, so as
to avoid cruelty and unnecessary suffering to the said animals in this . . .
that by reason of the aforesaid neglect and failure of the accused to
provide suitable means for securing said animals were cruelty torn, and
many of said animals were tossed about upon the decks and hold of said
vessels, and cruelty wounded, bruised, and killed."
The appellant contends that the language of the Spanish text of the
information does not charge him with failure to provide "sufficient" and
"adequate" means. The words used are "medios suficientes" and "medios
adecuados." In view of the fact that the original complaint was prepared
in English, and that the word "suitable" is translatable by the words
"adecuado," "suficiente," and "conveniente," according to the context and
circumstances, we determine this point against the appellant, particularly
in view of the fact that the objection was not made in the court below, and
that the evidence clearly shows a failure to provide "suitable means for
the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55
and the amendment thereto seems to rest upon a fundamentally
erroneous conception of the constitutional law of these Islands. The
statute penalizes acts and ommissions incidental to the transportation of
live stock between foreign ports and ports of the Philippine Islands, and
had a similar statute regulating commerce with its ports been enacted by
the legislature of one of the States of the Union, it would doubtless have
been in violation of Article I, section 3, of the Constitution of the United
States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)
But the Philippine Islands is not a State, and its relation to the United
States is controlled by constitutional principles different from those which
apply to States of the Union. The importance of the question thus
presented requires a statement of the principles which govern those
relations, and consideration of the nature and extent of the legislative
power of the Philippine Commission and the Legislature of the
Philippines. After much discussion and considerable diversity of opinion
certain applicable constitutional doctrines are established.
The Constitution confers upon the United States the express power to
make war and treaties, and it has the power possessed by all nations to
acquire territory by conquest or treaty. Territory thus acquired belongs to
the United States, and to guard against the possibility of the power of
Congress to provide for its government being questioned, the framers of
the Constitution provided in express terms that Congress should have the
power "to dispose of and make all needful rules and regulations
respecting territory and other property belonging to the United States."
(Art. IV, sec. 3, par. 3.) Upon the acquisition of the territory by the United
States, and until it is formally incorporated into the Union, the duty of
providing a government therefor devolves upon Congress. It may govern
the territory by its direct acts, or it may create a local government, and
delegate thereto the ordinary powers required for local government.
(Binns vs. U. S., 194 U. S., 486.) This has been the usual procedure.
Congress has provided such governments for territories which were
within the Union, and for newly acquired territory not yet incorporated
therein. It has been customary to organize a government with the
ordinary separation of powers into executive, legislative, and judicial, and
to prescribe in an organic act certain general conditions in accordance
with which the local government should act. The organic act thus became
the constitution of the government of the territory which had not been
formally incorporated into the Union, and the validity of legislation
enacted by the local legislature was determined by its conformity with the
requirements of such organic act. (National Bank vs. Yankton, 11 Otto (U.
108
S.), 129.) To the legislative body of the local government Congress has
delegated that portion of legislative power which in its wisdom it deemed
necessary for the government of the territory, reserving, however, the
right to annul the action of the local legislature and itself legislate directly
for the territory. This power has been exercised during the entire period of
the history of the United States. The right of Congress to delegate such
legislative power can no longer be seriously questioned. (Dorr vs. U. S.,
195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370, 385.)
The Constitution of the United States does not by its own force operate
within such territory, although the liberality of Congress in legislating the
Constitution into contiguous territory tended to create an impression upon
the minds of many people that it went there by its own force.
(Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this
territory, the power of Congress is limited only by those prohibitions of the
Constitution which go to the very root of its power to act at all,
irrespective of time or place. In all other respects it is plenary. (De
Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244;
Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138;
Rassmussen vs. U. S., 197 U. S., 516.)
This power has been exercised by Congress throughout the whole history
of the United States, and legislation founded on the theory was enacted
long prior to the acquisition of the present Insular possessions. Section
1891 of the Revised Statutes of 1878 provides that "The Constitution and
all laws of the United States which are not locally inapplicable shall have
the same force and effect within all the organized territories, and in every
Territory hereafter organized, as elsewhere within the United States."
When Congress organized a civil government for the Philippines, it
expressly provided that this section of the Revised Statutes should not
apply to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the
United States as a result of the war with Spain, the executive and
legislative authorities have consistently proceeded in conformity with the
principles above state. The city of Manila was surrendered to the United
States on August 13, 1898, and the military commander was directed to
hold the city, bay, and harbor, pending the conclusion of a peace which
should determine the control, disposition, and government of the Islands.
The duty then devolved upon the American authorities to preserve peace
and protect person and property within the occupied territory. Provision
therefor was made by proper orders, and on August 26 General Merritt
assumed the duties of military governor. The treaty of peace was signed
December 10, 1898. On the 22d of December, 1898, the President
announced that the destruction of the Spanish fleet and the surrender of
the city had practically effected the conquest of the Philippine Islands and
the suspension of the Spanish sovereignty therein, and that by the treaty
of peace the future control, disposition, and government of the Islands
had been ceded to the United States. During the periods of strict military
occupation, before the treaty of peace was ratified, and the interim
thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S., 260),
the territory was governed under the military authority of the President as
commander in chief. Long before Congress took any action, the
President organized a civil government which, however, had its legal
justification, like the purely military government which it gradually
superseded, in the war power. The military power of the President
embraced legislative, executive personally, or through such military or
civil agents as he chose to select. As stated by Secretary Root in his
report for 1901 —
The military power in exercise in a territory under military
occupation includes executive, legislative, and judicial authority. It
not infrequently happens that in a single order of a military
commander can be found the exercise of all three of these
different powers — the exercise of the legislative powers by
provisions prescribing a rule of action; of judicial power by
determination of right; and the executive power by the
enforcement of the rules prescribed and the rights determined.
President McKinley desired to transform military into civil government as
rapidly as conditions would permit. After full investigation, the
organization of civil government was initiated by the appointment of a
commission to which civil authority was to be gradually transferred. On
September 1, 1900, the authority to exercise, subject to the approval of
the President. "that part of the military power of the President in the
Philippine Islands which is legislative in its character" was transferred
from the military government to the Commission, to be exercised under
such rules and regulations as should be prescribed by the Secretary of
War, until such time as complete civil government should be established,
or congress otherwise provided. The legislative power thus conferred
upon the Commission was declared to include "the making of rules and
orders having the effect of law for the raising of revenue by taxes,
customs duties, and imposts; the appropriation and expenditure of public
funds of the Islands; the establishment of an educational system to
secure an efficient civil service; the organization and establishment of
courts; the organization and establishment of municipal and departmental
109
government, and all other matters of a civil nature which the military
governor is now competent to provide by rules or orders of a legislative
character." This grant of legislative power to the Commission was to be
exercised in conformity with certain declared general principles, and
subject to certain specific restrictions for the protection of individual
rights. The Commission were to bear in mind that the government to be
instituted was "not for our satisfaction or for the expression of our
theoretical views, but for the happiness, peace, and prosperity of the
people of the Philippine Island, and the measures adopted should be
made to conforms to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government." The specific
restrictions upon legislative power were found in the declarations that "no
person shall be deprived of life, liberty, or property without due process of
law; that private property shall not be taken for public use without just
compensation; that in all criminal prosecutions the accused shall enjoy
the right to a speedy and public trial, to be informed of the nature and
cause of the accusation, to be confronted with the witnesses against him,
to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defense; that excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted; that no person shall be put twice in jeopardy for the
same offense or be compelled in any criminal case to be a witness
against himself; that the right to be secure against unreasonable
searches and seizures shall not be violated; that neither slavery nor
involuntary servitude shall exist except as a punishment for crime; that no
bill of attainder or ex post facto law shall be passed; that no law shall be
passed abridging the freedom of speech or of the press or of the rights of
the people to peaceably assemble and petition the Government for a
redress of grievances; that no law shall be made respecting an
establishment of religion or prohibiting the free exercise thereof, and that
the free exercise and enjoyment of religious profession and worship
without discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being
raised, the Spooner amendment to the Army Appropriation Bill passed
March 2, 1901, provided that "all military, civil, and judicial powers
necessary to govern the Philippine Islands . . . shall until otherwise
provided by Congress be vested in such person and persons, and shall
be exercised in such manner, as the President of the United States shall
direct, for the establishment of civil government, and for maintaining and
protecting the inhabitants of said Islands in the free enjoyment of their
liberty, property, and religion." Thereafter, on July 4, 1901, the authority,
which had been exercised previously by the military governor, was
transferred to that official. The government thus created by virtue of the
authority of the President as Commander in Chief of the Army and Navy
continued to administer the affairs of the Islands under the direction of the
President until by the Act of July 1, 1902, Congress assumed control of
the situation by the enactment of a law which, in connection with the
instructions of April 7, 1900, constitutes the organic law of the Philippine
Islands.
The Act of July 1, 1902, made no substancial changes in the form of
government which the President had erected. Congress adopted the
system which was in operation, and approved the action of the President
in organizing the government. Substantially all the limitations which had
been imposed on the legislative power by the President's instructions
were included in the law, Congress thus extending to the Islands by
legislative act nor the Constitution, but all its provisions for the protection
of the rights and privileges of individuals which were appropriate under
the conditions. The action of the President in creating the Commission
with designated powers of government, in creating the office of the
Governor-General and Vice-Governor-General, and through the
Commission establishing certain executive departments, was expressly
approved and ratified. Subsequently the action of the President in
imposing a tariff before and after the ratification of the treaty of peace
was also ratified and approved by Congress. (Act of March 8, 1902; Act
of July 1, 1902; U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197
U.S., 419.) Until otherwise provided by law the Islands were to continue
to be governed "as thereby and herein provided." In the future the
enacting clause of all statutes should read "By authority of the United
States" instead of "By the authority of the President." In the course of
time the legislative authority of the Commission in all parts of the Islands
not inhabited by Moros or non-Christian tribes was to be transferred to a
legislature consisting of two houses — the Philippine Commission and
the Philippine Assembly. The government of the Islands was thus
assumed by Congress under its power to govern newly acquired territory
not incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory,
although its form and organization somewhat resembles that of both. It
stands outside of the constitutional relation which unites the States and
Territories into the Union. The authority for its creation and
maintenance is derived from the Constitution of the United States, which,
however, operates on the President and Congress, and not directly on
the Philippine Government. It is the creation of the United States, acting
through the President and Congress, both deriving power from the same
110
source, but from different parts thereof. For its powers and the limitations
thereon the Government of the Philippines looked to the orders of the
President before Congress acted and the Acts of Congress after it
assumed control. Its organic laws are derived from the formally and
legally expressed will of the President and Congress, instead of the
popular sovereign constituency which lies upon any subject relating to the
Philippines is primarily in Congress, and when it exercise such power its
act is from the viewpoint of the Philippines the legal equivalent of an
amendment of a constitution in the United States.
Within the limits of its authority the Government of the Philippines is a
complete governmental organism with executive, legislative, and judicial
departments exercising the functions commonly assigned to such
departments. The separation of powers is as complete as in most
governments. In neither Federal nor State governments is this separation
such as is implied in the abstract statement of the doctrine. For instance,
in the Federal Government the Senate exercises executive powers, and
the President to some extent controls legislation through the veto power.
In a State the veto power enables him to exercise much control over
legislation. The Governor-General, the head of the executive department
in the Philippine Government, is a member of the Philippine Commission,
but as executive he has no veto power. The President and Congress
framed the government on the model with which Americans are familiar,
and which has proven best adapted for the advancement of the public
interests and the protection of individual rights and priviliges.
In instituting this form of government of intention must have been to adopt
the general constitutional doctrined which are inherent in the system.
Hence, under it the Legislature must enact laws subject to the limitations
of the organic laws, as Congress must act under the national
Constitution, and the States under the national and state constitutions.
The executive must execute such laws as are constitutionally enacted.
The judiciary, as in all governments operating under written constitutions,
must determine the validity of legislative enactments, as well as the
legality of all private and official acts. In performing these functions it acts
with the same independence as the Federal and State judiciaries in the
United States. Under no other constitutional theory could there be that
government of laws and not of men which is essential for the protection of
rights under a free and orderly government.
Such being the constitutional theory of the Government of the Philippine
Islands, it is apparent that the courts must consider the question of the
validity of an act of the Philippine Commission or the Philippine
Legislature, as a State court considers an act of the State legislature. The
Federal Government exercises such powers only as are expressly or
impliedly granted to it by the Constitution of the United States, while the
States exercise all powers which have not been granted to the central
government. The former operates under grants, the latter subject to
restrictions. The validity of an Act of Congress depends upon whether the
Constitution of the United States contains a grant of express or implied
authority to enact it. An act of a State legislature is valid unless the
Federal or State constitution expressly or impliedly prohibits its enaction.
An Act of the legislative authority of the Philippines Government which
has not been expressly disapproved by Congress is valid unless its
subject-matter has been covered by congressional legislation, or its
enactment forbidden by some provision of the organic laws.
The legislative power of the Government of the Philippines is granted in
general terms subject to specific limitations. The general grant is not
alone of power to legislate on certain subjects, but to exercise the
legislative power subject to the restrictions stated. It is true that specific
authority is conferred upon the Philippine Government relative to certain
subjects of legislation, and that Congress has itself legislated upon
certain other subjects. These, however, should be viewed simply as
enactments on matters wherein Congress was fully informed and ready
to act, and not as implying any restriction upon the local legislative
authority in other matters. (See Opinion of Atty. Gen. of U. S., April 16,
1908.)
The fact that Congress reserved the power to annul specific acts of
legislation by the Government of the Philippine tends strongly to confirm
the view that for purposes of construction the Government of the
Philippines should be regarded as one of general instead of enumerated
legislative powers. The situation was unusual. The new government was
to operate far from the source of its authority. To relieve Congress from
the necessity of legislating with reference to details, it was thought better
to grant general legislative power to the new government, subject to
broad and easily understood prohibitions, and reserve to Congress the
power to annul its acts if they met with disapproval. It was therefore
provided "that all laws passed by the Government of the Philippine
Islands shall be reported to Congress, which hereby reserves the power
and authority to annul the same." (Act of Congress, July 1, 1902, sec.
86.) This provision does not suspend the acts of the Legislature of the
Philippines until approved by Congress, or when approved, expressly or
by acquiescence, make them the laws of Congress. They are valid acts
111
of the Government of the Philippine Islands until annulled. (Miners
Bank vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain
whether the Legislature has been expressly or implication forbidden to
enact it. Section 3, Article IV, of the Constitution of the United States
operated only upon the States of the Union. It has no application to the
Government of the Philippine Islands. The power to regulate foreign
commerce is vested in Congress, and by virtue of its power to govern the
territory belonging to the United States, it may regulate foreign commerce
with such territory. It may do this directly, or indirectly through a
legislative body created by it, to which its power in this respect if
delegate. Congress has by direct legislation determined the duties which
shall be paid upon goods imported into the Philippines, and it has
expressly authorized the Government of the Philippines to provide for the
needs of commerce by improving harbors and navigable waters. A few
other specific provisions relating to foreign commerce may be found in
the Acts of Congress, but its general regulation is left to the Government
of the Philippines, subject to the reserved power of Congress to annul
such legislation as does not meet with its approval. The express
limitations upon the power of the Commission and Legislature to legislate
do not affect the authority with respect to the regulation of commerce with
foreign countries. Act No. 55 was enacted before Congress took over the
control of the Islands, and this act was amended by Act No. 275 after the
Spooner amendment of March 2, 1901, was passed. The military
government, and the civil government instituted by the President, had the
power, whether it be called legislative or administrative, to regulate
commerce between foreign nations and the ports of the territory.
(Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21
Wall. (U.S.), 73, 87.) This Act has remained in force since its enactment
without annulment or other action by Congress, and must be presumed to
have met with its approval. We are therefore satisfied that the
Commission had, and the Legislature now has, full constitutional power to
enact laws for the regulation of commerce between foreign countries and
the ports of the Philippine Islands, and that Act No. 55, as amended by
Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable within the
meaning of the Act can not be left to the judgment of the master of the
ship. It is a question which must be determined by the court from the
evidence. On December 2, 1908, the defendant Bull brought into and
disembarked in the port and city of Manila certain cattle, which came from
the port of Ampieng, Formosa, without providing suitable means for
securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to said animals, contrary to the provisions of
section 1 of Act No. 55, as amended by section 1 of Act No. 275. The trial
court found the following facts, all of which are fully sustained by the
evidence:
That the defendant, H. N. Bull, as captain and master of the
Norwegian steamer known as the Standard, for a period of six
months or thereabouts prior to the 2d day of December, 1908,
was engaged in the transportation of cattle and carabaos from
Chines and Japanese ports to and into the city of Manila,
Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such
master and captain as aforesaid, brought into the city of Manila,
aboard said ship, a large number of cattle, which ship was
anchored, under the directions of the said defendant, behind the
breakwaters in front of the city of Manila, in Manila Bay, and
within the jurisdiction of this court; and that fifteen of said cattle
then and there had broken legs and three others of said cattle
were dead, having broken legs; and also that said cattle were
transported and carried upon said ship as aforesaid by the
defendant, upon the deck and in the hold of said ship, without
suitable precaution and care for the transportation of said
animals, and to avoid danger and risk to their lives and security;
and further that said cattle were so transported abroad said ship
by the defendant and brought into the said bay, and into the city
of Manila, without any provisions being made whatever upon said
decks of said ship and in the hold thereof to maintain said cattle
in a suitable condition and position for such transportation.
That a suitable and practicable manner in which to transport
cattle abroad steamship coming into Manila Bay and unloading in
the city of Manila is by way of individual stalls for such cattle,
providing partitions between the cattle and supports at the front
sides, and rear thereof, and cross-cleats upon the floor on which
they stand and are transported, of that in case of storms, which
are common in this community at sea, such cattle may be able to
stand without slipping and pitching and falling, individually or
collectively, and to avoid the production of panics and hazard to
the animals on account or cattle were transported in this case.
Captain Summerville of the steamship Taming, a very intelligent
and experienced seaman, has testified, as a witness in behalf of
112
 the Government, and stated positively that since the introduction
in the ships with which he is acquainted of the stall system for the
transportation of animals and cattle he has suffered no loss
whatever during the last year. The defendant has testified, as a
witness in his own behalf, that according to his experience the
system of carrying cattle loose upon the decks and in the hold is
preferable and more secure to the life and comfort of the animals,
but this theory of the case is not maintainable, either by the
proofs or common reason. It can not be urged with logic that, for
instance, three hundred cattle supports for the feet and without
stalls or any other protection for them individually can safely and
suitably carried in times of storm upon the decks and in the holds
of ships; such a theory is against the law of nature. One animal
falling or pitching, if he is untied or unprotected, might produce a
serious panic and the wounding of half the animals upon the ship
if transported in the manner found in this case.
The defendant was found guilty, and sentenced to pay a fine of two
hundred and fifty pesos, with subsidiary imprisonment in case of
insolvency, and to pay the costs. The sentence and judgment is affirmed.
So ordered.
Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of
the Court of First Instance of Manila, sustaining the demurrer presented
by the defendant to the information that initiated this case and in which
the appellee is accused of having illegally smoked opium, aboard the
merchant vessel Changsa of English nationality while said vessel was
anchored in Manila Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court,
which so held and dismissed the case.
The question that presents itself for our consideration is whether such
ruling is erroneous or not; and it will or will not be erroneous according as
said court has or has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have
jurisdiction over crime, like the one herein involved, committed aboard
merchant vessels anchored in our jurisdiction waters. 1aw ph!l .net
There are two fundamental rules on this particular matter in connection
with International Law; to wit, the French rule, according to which crimes
committed aboard a foreign merchant vessels should not be prosecuted
in the courts of the country within whose territorial jurisdiction they were
committed, unless their commission affects the peace and security of the
territory; and the English rule, based on the territorial principle and
followed in the United States, according to which, crimes perpetrated
under such circumstances are in general triable in the courts of the
country within territory they were committed. Of this two rules, it is the last
one that obtains in this jurisdiction, because at present the theories and
jurisprudence prevailing in the United States on this matter are authority
in the Philippines which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7
Cranch [U. S.], 116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it
would be obviously inconvenient and dangerous to society, and
would subject the laws to continual infraction, and the
government to degradation, if such individuals or merchants did
not owe temporary and local allegiance, and were not amenable
to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
113
 . . . No court of the Philippine Islands had jurisdiction over an
offense or crime committed on the high seas or within the
territorial waters of any other country, but when she came within
three miles of a line drawn from the headlands, which embrace
the entrance to Manila Bay, she was within territorial waters, and
a new set of principles became applicable. (Wheaton,
International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit
Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and
her crew were then subject to the jurisdiction of the territorial
sovereign subject to such limitations as have been conceded by
that sovereignty through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali
and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it
was said that:
. . . The principle which governs the whole matter is this: Disorder
which disturb only the peace of the ship or those on board are to
be dealt with exclusively by the sovereignty of the home of the
ship, but those which disturb the public peace may be
suppressed, and, if need be, the offenders punished by the
proper authorities of the local jurisdiction. It may not be easy at all
times to determine which of the two jurisdictions a particular act of
disorder belongs. Much will undoubtedly depend on the attending
circumstances of the particular case, but all must concede that
felonious homicide is a subject for the local jurisdiction, and that if
the proper authorities are proceeding with the case in the regular
way the consul has no right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in
the Philippine Islands, aboard a foreign vessel in transit in any
local port, does not, as a general rule, constitute a crime triable
by the courts of the Islands, such vessels being considered as an
extension of its own nationality, the same rule does not apply
when the article, the use of which is prohibited in the Islands, is
landed from the vessels upon Philippine soil; in such a case an
open violation of the laws of the land is committed with respect to
which, as it is a violation of the penal law in force at the place of
the commission of the crime, no court other than that established
in the said place has jurisdiction of the offense, in the absence of
an agreement under an international treaty.
As to whether the United States has ever consented by treaty or
otherwise to renouncing such jurisdiction or a part thereof, we find
nothing to this effect so far as England is concerned, to which nation the
ship where the crime in question was committed belongs. Besides, in his
work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the
following:
There shall be between the territories of the United States of
America, and all the territories of His Britanic Majesty in Europe, a
reciprocal liberty of commerce. The inhabitants of the two
countries, respectively, shall have liberty freely and securely to
come with their ships and cargoes to all such places, ports and
rivers, in the territories aforesaid, to which other foreigners are
permitted to come, to enter into the same, and to remain and
reside in any parts of the said territories, respectively; also to hire
and occupy houses and warehouses for the purposes of their
commerce; and, generally, the merchants and traders of each
nation respectively shall enjoy the most complete protection and
security for their commerce, but subject always to the laws and
statutes of the two countries, respectively. (Art. 1, Commerce and
Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign
vessel in transit was held by this court not triable by or courts, because it
being the primary object of our Opium Law to protect the inhabitants of
the Philippines against the disastrous effects entailed by the use of this
drug, its mere possession in such a ship, without being used in our
territory, does not being about in the said territory those effects that our
statute contemplates avoiding. Hence such a mere possession is not
considered a disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard a
foreign merchant ship, is certainly a breach of the public order here
established, because it causes such drug to produce its pernicious
effects within our territory. It seriously contravenes the purpose that our
Legislature has in mind in enacting the aforesaid repressive statute.
Moreover, as the Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a
foreign vessel at anchor in the port of Manila in open defiance of
the local authorities, who are impotent to lay hands on him, is
simply subversive of public order. It requires no unusual stretch of
the imagination to conceive that a foreign ship may come into the
114
 port of Manila and allow or solicit Chinese residents to smoke
opium on board.
The order appealed from is revoked and the cause ordered remanded to
the court of origin for further proceedings in accordance with law, without
special findings as to costs. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5887 December 16, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First
Instance of Cebu, stated that he "carried, kept, possessed and had in his
possession and control, 96 kilogrammes of opium," and that "he had
been surprised in the act of selling 1,000 pesos worth prepared opium."
The defense presented a demurrer based on two grounds, the second of
which was the more than one crime was charged in the complaint. The
demurrer was sustained, as the court found that the complaint contained
two charges, one, for the unlawful possession of opium, and the other, for
the unlawful sale of opium, and, consequence of that ruling, it ordered
that the fiscal should separated one charge from the other and file a
complaint for each violation; this, the fiscal did, and this cause concerns
only the unlawful possession of opium. It is registered as No. 375, in the
Court of First Instance of Cebu, and as No. 5887 on the general docket of
this court.
The facts of the case are contained in the following finding of the trial
court:
The evidence, it says, shows that between 11 and 12 o'clock a.
m. on the present month (stated as August 19, 1909), several
persons, among them Messrs. Jacks and Milliron, chief of the
department of the port of Cebu and internal-revenue agent of
Cebu, respectively, went abroad the steamship Erroll to inspect
and search its cargo, and found, first in a cabin near the saloon,
one sack (Exhibit A) and afterwards in the hold, another sack
(Exhibit B). The sack referred to as Exhibit A contained 49 cans
of opium, and the other, Exhibit B, the larger sack, also contained
several cans of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the defendant's
control, who moreover, freely and of his own will and accord
admitted that this sack, as well as the other referred to in Exhibit
B and found in the cabin, belonged to him. The said defendant
also stated, freely and voluntarily, that he had bought these sacks
of opium, in Hongkong with the intention of selling them as
contraband in Mexico or Vera Cruz, and that, as his hold had
already been searched several times for opium, he ordered two
other Chinamen to keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated as
Exhibits A and B, properly constitute the corpus delicti. Moreover, another
lot of four cans of opium, marked, as Exhibit C, was the subject matter of
investigation at the trial, and with respect to which the chief of the
department of the port of Cebu testified that they were found in the part of
the ship where the firemen habitually sleep, and that they were delivered
to the first officer of the ship to be returned to the said firemen after the
vessel should have left the Philippines, because the firemen and crew of
foreign vessels, pursuant to the instructions he had from the Manila
custom-house, were permitted to retain certain amounts of opium, always
provided it should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus
delicti and important as evidence in this cause. With regard to this the
internal-revenue agent testified as follows:itc-alf
115
 FISCAL. What is it?
WITNESS. It is a can opium which was bought from the
defendant by a secret-service agent and taken to the office of the
governor to prove that the accused had opium in his possession
to sell.
On motion by the defense, the court ruled that this answer might be
stricken out "because it refers to a sale." But, with respect to this answer,
the chief of the department of customs had already given this testimony,
to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office and
said that a party brought him a sample of opium and that the
same party knew that there was more opium on board the
steamer, and the agent asked that the vessel be searched.
The defense moved that this testimony be rejected, on the ground of its
being hearsay evidence, and the court only ordered that the part thereof
"that there was more opium, on board the vessel" be stricken out.
The defense, to abbreviate proceedings, admitted that the receptacles
mentioned as Exhibits A, B, and C, contained opium and were found on
board the steamship Erroll, a vessel of English nationality, and that it was
true that the defendant stated that these sacks of opium were his and that
he had them in his possession.
According to the testimony of the internal-revenue agent, the defendant
stated to him, in the presence of the provincial fiscal, of a Chinese
interpreter (who afterwards was not needed, because the defendant
spoke English), the warden of the jail, and four guards, that the opium
seized in the vessel had been bought by him in Hongkong, at three pesos
for each round can and five pesos for each one of the others, for the
purpose of selling it, as contraband, in Mexico and Puerto de Vera Cruz;
that on the 15th the vessel arrived at Cebu, and on the same day he sold
opium; that he had tried to sell opium for P16 a can; that he had a
contract to sell an amount of the value of about P500; that the opium
found in the room of the other two Chinamen prosecuted in another
cause, was his, and that he had left it in their stateroom to avoid its being
found in his room, which had already been searched many times; and
that, according to the defendant, the contents of the large sack was 80
cans of opium, and of the small one, 49, and the total number, 129.
It was established that the steamship Erroll was of English nationality,
that it came from Hongkong, and that it was bound for Mexico, via the call
ports of Manila and Cebu.
The defense moved for a dismissal of the case, on the grounds that the
court had no jurisdiction to try the same and the facts concerned therein
did not constitute a crime. The fiscal, at the conclusion of his argument,
asked that the maximum penalty of the law be imposed upon the
defendant, in view of the considerable amount of opium seized. The court
ruled that it did not lack jurisdiction, inasmuch as the crime had been
committed within its district, on the wharf of Cebu.
The court sentenced the defendant to five years' imprisonment, to pay a
fine of P10,000, with additional subsidiary imprisonment in case of
insolvency, though not to exceed one third of the principal penalty, and to
the payment of the costs. It further ordered the confiscation, in favor of
the Insular Government, of the exhibits presented in the case, and that, in
the event of an appeal being taken or a bond given, or when the
sentenced should have been served, the defendant be not released from
custody, but turned over to the customs authorities for the purpose of the
fulfillment of the existing laws on immigration.
From this judgment, the defendant appealed to this court. lawphi1.net
The appeal having been heard, together with the allegations made
therein by the parties, it is found: That, although the mere possession of a
thing of prohibited use in these Islands, aboard a foreign vessel in transit,
in any of their ports, does not, as a general rule, constitute a crime triable
by the courts of this country, on account of such vessel being considered
as an extension of its own nationality, the same rule does not apply when
the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine
soil, thus committing an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force at the place
of the commission of the crime, only the court established in that said
place itself had competent jurisdiction, in the absence of an agreement
under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized,
the subject matter of the present case, was considerable, it does not
116
appear that, on such account, the two penalties fixed by the law on the
subject, should be imposed in the maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six months
and P1,000, respectively, we affirm in all other respects the judgment
appealed from, with the costs of this instance against the appellant. So
ordered.
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers
like Captain Avery and Captain Kidd and Bartholomew Roberts gripped
the imagination, when grostesque brutes like Blackbeard flourished,
seem far away in the pages of history and romance. Nevertheless, the
record before us tells a tale of twentieth century piracy in the south seas,
but stripped of all touches of chivalry or of generosity, so as to present a
horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession,
for Peta, another Dutch possession. In one of the boats was one
individual, a Dutch subject, and in the other boat eleven men, women,
and children, likewise subjects of Holland. After a number of days of
navigation, at about 7 o'clock in the evening, the second boat arrived
between the Islands of Buang and Bukid in the Dutch East Indies. There
the boat was surrounded by six vintas manned by twenty-four Moros all
armed. The Moros first asked for food, but once on the Dutch boat, too
for themselves all of the cargo, attacked some of the men, and brutally
violated two of the women by methods too horrible to the described. All of
the persons on the Dutch boat, with the exception of the two young
women, were again placed on it and holes were made in it, the idea that it
would submerge, although as a matter of fact, these people, after eleven
days of hardship and privation, were succored violating them, the Moros
finally arrived at Maruro, a Dutch possession. Two of the Moro marauder
were Lol-lo, who also raped one of the women, and Saraw. At Maruro the
two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi,
Sulu, Philippine Islands. There they were arrested and were charged in
the Court of First Instance of Sulu with the crime of piracy. A demurrer
was interposed by counsel de officio for the Moros, based on the grounds
that the offense charged was not within the jurisdiction of the Court of
First Instance, nor of any court of the Philippine Islands, and that the facts
did not constitute a public offense, under the laws in force in the
Philippine Islands. After the demurrer was overruled by the trial judge,
trial was had, and a judgment was rendered finding the two defendants
guilty and sentencing each of them to life imprisonment (cadena
perpetua), to return together with Kinawalang and Maulanis, defendants
in another case, to the offended parties, the thirty-nine sacks of copras
which had been robbed, or to indemnify them in the amount of 924
rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the
attorney de officio. By a process of elimination, however, certain
questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of
piracy are present. Piracy is robbery or forcible depredation on the high
seas, without lawful authority and done animo furandi, and in the spirit
and intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover
court and as is again done in this court, that the Court of First Instance
was without jurisdiction of the case. Pirates are in law hostes humani
generis. Piracy is a crime not against any particular state but against all
mankind. It may be punished in the competent tribunal of any country
where the offender may be found or into which he may be carried. The
jurisdiction of piracy unlike all other crimes has no territorial limits. As it is
against all so may it be punished by all. Nor does it matter that the crime
117
was committed within the jurisdictional 3-mile limit of a foreign state, "for
those limits, though neutral to war, are not neutral to crimes." (U.S. vs.
Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for
decision for the first time is whether or not the provisions of the Penal
Code dealing with the crime of piracy are still in force. Article 153 to 156
of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or
the subjects of another nation not at war with Spain, shall be
punished with a penalty ranging from cadena temporal to cadena
perpetua.
If the crime be committed against nonbelligerent subjects of
another nation at war with Spain, it shall be punished with the
penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first
paragraph of the next preceding article shall suffer the penalty
of cadena perpetua or death, and those who commit the crimes
referred to in the second paragraph of the same article,
from cadena temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding
or firing upon the same.
2. Whenever the crime is accompanied by murder,
homicide, or by any of the physical injuries specified in
articles four hundred and fourteen and four hundred and
fifteen and in paragraphs one and two of article four
hundred and sixteen.
3. Whenever it is accompanied by any of the offenses
against chastity specified in Chapter II, Title IX, of this
book.
4. Whenever the pirates have abandoned any persons
without means of saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all
others of this code, when Spain is mentioned it shall be
understood as including any part of the national territory.
ART. 156. For the purpose of applying the provisions of this code,
every person, who, according to the Constitution of the Monarchy,
has the status of a Spaniard shall be considered as such.
The general rules of public law recognized and acted on by the United
States relating to the effect of a transfer of territory from another State to
the United States are well-known. The political law of the former
sovereignty is necessarily changed. The municipal law in so far as it is
consistent with the Constitution, the laws of the United States, or the
characteristics and institutions of the government, remains in force. As a
corollary to the main rules, laws subsisting at the time of transfer,
designed to secure good order and peace in the community, which are
strictly of a municipal character, continue until by direct action of the new
government they are altered or repealed. (Chicago, Rock Islands, etc., R.
Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the
Philippines by the Instructions of President McKinley of May 19, 1898, to
General Wesley Meritt, the Commanding General of the Army of
Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and
supreme, and immediately operate upon the political condition of
the inhabitants, the municipal laws of the conquered territory,
such as affect private rights of person and property, and provide
for the punishment of crime, are considered as continuing in
force, so far as they are compatible with the new order of things,
until they are suspended or superseded by the occupying
belligerent; and practice they are not usually abrogated, but are
allowed to remain in force, and to be administered by the ordinary
tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the
present occasion. (Official Gazette, Preliminary Number, Jan. 1,
1903, p. 1. See also General Merritt Proclamation of August 14,
1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code
dealing with piracy were meant to include the Philippine Islands. Article
156 of the Penal Code in relation to article 1 of the Constitution of the
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Spanish Monarchy, would also make the provisions of the Code
applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same
thing as piracy by the civil law, and he has never been disputed. The
specific provisions of the Penal Code are similar in tenor to statutory
provisions elsewhere and to the concepts of the public law. This must
necessarily be so, considering that the Penal Code finds its inspiration in
this respect in the Novelas, the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall
have the power to define and punish piracies and felonies committed on
the high seas, and offenses against the law of nations. (U.S. Const. Art. I,
sec. 8, cl. 10.) The Congress, in putting on the statute books the
necessary ancillary legislation, provided that whoever, on the high seas,
commits the crime of piracy as defined by the law of nations, and is
afterwards brought into or found in the United States, shall be imprisoned
for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev.
Stat., sec. 5368.) The framers of the Constitution and the members of
Congress were content to let a definition of piracy rest on its universal
conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in the
Philippines relating to piracy are not inconsistent with the corresponding
provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United
States. A logical construction of articles of the Penal Code, like the
articles dealing with the crime of piracy, would be that wherever "Spain"
is mentioned, it should be substituted by the words "United States" and
wherever "Spaniards" are mentioned, the word should be substituted by
the expression "citizens of the United States and citizens of the Philippine
Islands." somewhat similar reasoning led this court in the case of United
States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as
found in the Penal Code a limited meaning, which would no longer
comprehend all religious, military, and civil officers, but only public
officers in the Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code
would read as follows:
The crime of piracy committed against citizens of the United
States and citizens of the Philippine Islands, or the subjects of
another nation not at war with the United States, shall be
punished with a penalty ranging from cadena temporal to cadena
perpetua.
If the crime be committed against nonbelligerent subjects of
another nation at war with the United States, it shall be punished
with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of
piracy, notably articles 153 and 154, to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code
in relation to article 154. There are present at least two of the
circumstances named in the last cited article as authorizing either cadena
perpetuaor death. The crime of piracy was accompanied by (1) an
offense against chastity and (2) the abandonment of persons without
apparent means of saving themselves. It is, therefore, only necessary for
us to determine as to whether the penalty of cadena perpetua or death
should be imposed. In this connection, the trial court, finding present the
one aggravating circumstance of nocturnity, and compensating the same
by the one mitigating circumstance of lack of instruction provided by
article 11, as amended, of the Penal Code, sentenced the accused to life
imprisonment. At least three aggravating circumstances, that the wrong
done in the commission of the crime was deliberately augmented by
causing other wrongs not necessary for its commission, that advantage
was taken of superior strength, and that means were employed which
added ignominy to the natural effects of the act, must also be taken into
consideration in fixing the penalty. Considering, therefore, the number
and importance of the qualifying and aggravating circumstances here
present, which cannot be offset by the sole mitigating circumstance of
lack of instruction, and the horrible nature of the crime committed, it
becomes our duty to impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of
the imposition of the death penalty upon the defendant and appellant Lo-
lo (the accused who raped on of the women), but is not unanimous with
regard to the court, Mr. Justice Romualdez, registers his nonconformity.
In accordance with provisions of Act No. 2726, it results, therefore, that
the judgment of the trial court as to the defendant and appellant Saraw is
affirmed, and is reversed as to the defendant and appellant Lol-lo, who is
found guilty of the crime of piracy and is sentenced therefor to be hung
until dead, at such time and place as shall be fixed by the judge of first
instance of the Twenty-sixth Judicial District. The two appellants together
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with Kinawalang and Maulanis, defendants in another case, shall (d) Crimes committed outside the Philippines but
indemnify jointly and severally the offended parties in the equivalent of
924 rupees, and shall pay a one-half part of the costs of both instances.
punishable under Article 2 of the Revised Penal Code
So ordered. shall be cognizable by the court where the criminal
action is first filed. (15a)
Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and
Romualdez, JJ., concur.

RULE 110

Prosecution of Offenses

Section 15. Place where action is to be instituted. —

(a) Subject to existing laws, the criminal action shall be

instituted and tried in the court of the municipality or
territory where the offense was committed or where any
of its essential ingredients occurred.

(b) Where an offense is committed in a train, aircraft, or

other public or private vehicle while in the course of its
trip, the criminal action shall be instituted and tried in
the court of any municipality or territory where such
train, aircraft or other vehicle passed during such its trip,
including the place of its departure and arrival.

(c) Where an offense is committed on board a vessel in

the course of its voyage, the criminal action shall be
instituted and tried in the court of the first port of entry
or of any municipality or territory where the vessel
passed during such voyage, subject to the generally
accepted principles of international law.

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