I.

Universal Declaration of Human Rights;

II. Cases:
1. Simon vs. Commission on Human Rights, G.R. No. 100150, January 5, 1994;
2. Carino vs. Commission on Human Rights, G.R. No. 96681, December 2, 1991;
3. Republic vs. Sandiganbayan, G.R. No. 104768 July 21, 2003;
4. Bataan Shipyard Engineering Co. Inc., vs. PCGG, G.R. No. 75885 May 27, 1987;
5. EPZA vs. Commission on Human Rights, G.R. No. 101476 April 14, 1992;
6. Gen. Razon vs. Tagitis, G.R. No.182498 December 3, 2009;
7. Guazon, et al. vs. Gen. Villa, et al., G.R. No. 80508 January 30, 1990;
8. Marcos vs. Manglapus, G.R. No. 88211 September 15, 1989;
9. Enrile vs. Sandiganbayan, G.R. No. 213847 August 18, 2015;
10. People vs. Casio, G.R. No. 211465 December 3, 2014;
11. Garcia vs. Hon. Drilon, G.R. No. 179267 June 25, 2013;
12. Phil. Blooming Mills Employees Organization vs. Philippine Blooming Mills, Co.,
G.R. No. L-31195 June 5, 1973;
13. International School Alliance of Educators vs. Quisumbing, G.R. No. 128845 June
1, 2000;
14. BAYAN MUNA vs. Romulo, G.R. No. 159618 February 1, 2011;
15. Ang LADLAD LGBT Party vs. COMELEC, G.R. No. 190582 April 8, 2010;
16. Vivares, et al. vs. St. Thersa’s College, et al., G.R. No.202666 September 29, 2014;
17. Government of Hong Kong Administrative Region vs. Hon. Olalia, G.R. No.153675
April 19, 2007;
18. Mejoff vs. Director of Prisons, G.R. No. L-4254 September 26, 1951;
19. Andreu vs. Commissioner of Immigration, G.R. No. L-4253 October 31, 1951;
20. Lam Yin vs. Commissioner of Immigration,G.R. No. L-22744 March 31, 1966;

EN BANC

G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND

GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
DOES, respondents.

The City Attorney for petitioners.

The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR")
is again placed into focus in this petition for prohibition, with prayer for a restraining
order and preliminary injunction. The petitioners ask us to prohibit public respondent
CHR from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo,
et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by
Carlos Quimpo (one of the petitioners) in his capacity as an Executive Officer of the
Quezon City Integrated Hawkers Management Council under the Office of the City
Mayor, was sent to, and received by, the private respondents (being the officers and
members of the North EDSA Vendors Association, Incorporated). In said notice, the
respondents were given a grace-period of three (3) days (up to 12 July 1990) within
which to vacate the questioned premises of North EDSA.1Prior to their receipt of the
demolition notice, the private respondents were informed by petitioner Quimpo that
their stalls should be removed to give way to the "People's Park". 2 On 12 July 1990,
the group, led by their President Roque Fermo, filed a letter-complaint (Pinag-
samang Sinumpaang Salaysay) with the CHR against the petitioners, asking the late
CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor
Brigido Simon, Jr., of Quezon City to stop the demolition of the private respondents'
stalls, sari-sari stores, and carinderia along North EDSA. The complaint was
docketed as CHR Case No. 90-1580.3 On 23 July 1990, the CHR issued an Order,
directing the petitioners "to desist from demolishing the stalls and shanties at North
EDSA pending resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the CHR.4

On the basis of the sworn statements submitted by the private respondents on 31

July 1990, as well as CHR's own ocular inspection, and convinced that on 28 July
1990 the petitioners carried out the demolition of private respondents' stalls, sari-
sari stores and carinderia,5 the CHR, in its resolution of 1 August 1990, ordered the
disbursement of financial assistance of not more than P200,000.00 in favor of the
private respondents to purchase light housing materials and food under the
Commission's supervision and again directed the petitioners to "desist from further
demolition, with the warning that violation of said order would lead to a citation for
contempt and arrest."6

A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction. The

motion also averred, among other things, that:

1. this case came about due to the alleged violation by the (petitioners)
of the Inter-Agency Memorandum of Agreement whereby Metro-Manila
Mayors agreed on a moratorium in the demolition of the dwellings of
poor dwellers in Metro-Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium

referred to therein refers to moratorium in the demolition of the
structures of poor dwellers;

4. that the complainants in this case (were) not poor dwellers but
independent business entrepreneurs even this Honorable Office
admitted in its resolution of 1 August 1990 that the complainants are
indeed, vendors;

5. that the complainants (were) occupying government land,

particularly the sidewalk of EDSA corner North Avenue, Quezon City; .
. . and

6. that the City Mayor of Quezon City (had) the sole and exclusive
discretion and authority whether or not a certain business
establishment (should) be allowed to operate within the jurisdiction of
Quezon City, to revoke or cancel a permit, if already issued, upon
grounds clearly specified by law and ordinance.8
During the 12 September 1990 hearing, the petitioners moved for postponement,
arguing that the motion to dismiss set for 21 September 1990 had yet to be resolved.
The petitioners likewise manifested that they would bring the case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the

petitioners, stating that the Commission's authority should be understood as being
confined only to the investigation of violations of civil and political rights, and that
"the rights allegedly violated in this case (were) not civil and political rights, (but)
their privilege to engage in business."9

On 21 September 1990, the motion to dismiss was heard and submitted for
resolution, along with the contempt charge that had meantime been filed by the
private respondents, albeit vigorously objected to by petitioners (on the ground that
the motion to dismiss was still then unresolved).10

In an Order,11 dated 25 September 1990, the CHR cited the petitioners in contempt
for carrying out the demolition of the stalls, sari-sari stores and carinderia despite the
"order to desist", and it imposed a fine of P500.00 on each of them.

On 1 March 1991,12 the CHR issued an Order, denying petitioners' motion to dismiss
and supplemental motion to dismiss, in this wise:

Clearly, the Commission on Human Rights under its constitutional

mandate had jurisdiction over the complaint filed by the squatters-
vendors who complained of the gross violations of their human and
constitutional rights. The motion to dismiss should be and is hereby
DENIED for lack of merit.13

The CHR opined that "it was not the intention of the (Constitutional) Commission to
create only a paper tiger limited only to investigating civil and political rights, but it
(should) be (considered) a quasi-judicial body with the power to provide appropriate
legal measures for the protection of human rights of all persons within the
Philippines . . . ." It added:

The right to earn a living is a right essential to one's right to

development, to life and to dignity. All these brazenly and violently
ignored and trampled upon by respondents with little regard at the
same time for the basic rights of women and children, and their health,
safety and welfare. Their actions have psychologically scarred and
traumatized the children, who were witness and exposed to such a
violent demonstration of Man's inhumanity to man.

In an Order,14 dated 25 April 1991, petitioners' motion for reconsideration was

denied.

Hence, this recourse.

The petition was initially dismissed in our resolution15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution16 of 18 June 1991, in which we
also issued a temporary restraining order, directing the CHR to "CEASE and
DESIST from further hearing CHR No. 90-1580."17

The petitioners pose the following:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and
authority given by the Mayor of Quezon City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by

the demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from
filing his comment for public respondent CHR. The latter thus filed its own
comment,18 through Hon. Samuel Soriano, one of its Commissioners. The Court also
resolved to dispense with the comment of private respondent Roque Fermo, who
had since failed to comply with the resolution, dated 18 July 1991, requiring such
comment.

The petition has merit.

The Commission on Human Rights was created by the 1987

Constitution.19 It was formally constituted by then President Corazon
Aquino via Executive Order No. 163,20 issued on 5 May 1987, in the exercise of her
legislative power at the time. It succeeded, but so superseded as well, the
Presidential Committee on Human Rights.21

The powers and functions22 of the Commission are defined by the 1987 Constitution,
thus: to —

(1) Investigate, on its own or on complaint by any party, all forms of

human rights violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human

rights of all persons within the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures and legal aid services to
the underprivileged whose human rights have been violated or need
protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and

information to enhance respect for the primacy of human rights;

(6) Recommend to the Congress effective measures to promote

human rights and to provide for compensation to victims of violations of
human rights, or their families;

(7) Monitor the Philippine Government's compliance with international

treaty obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or

whose possession of documents or other evidence is necessary or
convenient to determine the truth in any investigation conducted by it
or under its authority;
 (9) Request the assistance of any department, bureau, office, or
agency in the performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by

law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR
theorizes that the intention of the members of the Constitutional Commission is to
make CHR a quasi-judicial body.23 This view, however, has not heretofore been
shared by this Court. In Cariño v. Commission on Human Rights,24 the Court, through
then Associate Justice, now Chief Justice Andres Narvasa, has observed that it is
"only the first of the enumerated powers and functions that bears any resemblance
to adjudication or adjudgment," but that resemblance can in no way be synonymous
to the adjudicatory power itself. The Court explained:

. . . (T)he Commission on Human Rights . . . was not meant by the

fundamental law to be another court or quasi-judicial agency in this
country, or duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of

adjudicative power is that it may investigate, i.e., receive evidence and
make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact finding is not adjudication,
and cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving
evidence and ascertaining therefrom the facts of a controversy is not a
judicial function, properly speaking. To be considered such, the faculty
of receiving evidence and making factual conclusions in a controversy
must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law. This function,
to repeat, the Commission does not have.

After thus laying down at the outset the above rule, we now proceed to the other
kernel of this controversy and, its is, to determine the extent of CHR's investigative
power.

It can hardly be disputed that the phrase "human rights" is so generic a term that any
attempt to define it, albeit not a few have tried, could at best be described as
inconclusive. Let us observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of the questions that has
been propounded is "(w)hat do you understand by "human rights?" The participants,
representing different sectors of the society, have given the following varied
answers:

Human rights are the basic rights which inhere in man by virtue of his
humanity. They are the same in all parts of the world, whether the
Philippines or England, Kenya or the Soviet Union, the United States
or Japan, Kenya or Indonesia . . . .

Human rights include civil rights, such as the right to life, liberty, and
property; freedom of speech, of the press, of religion, academic
freedom, and the rights of the accused to due process of law; political
rights, such as the right to elect public officials, to be elected to public
 office, and to form political associations and engage in politics; and
social rights, such as the right to an education, employment, and social
services.25

Human rights are the entitlement that inhere in the individual person
from the sheer fact of his humanity. . . . Because they are inherent,
human rights are not granted by the State but can only be recognized
and protected by it.26

(Human rights include all) the civil, political, economic, social, and
cultural rights defined in the Universal Declaration of Human Rights.27

Human rights are rights that pertain to man simply because he is

human. They are part of his natural birth, right, innate and inalienable.28

The Universal Declaration of Human Rights, as well as, or more specifically, the
International Covenant on Economic, Social and Cultural Rights and International
Covenant on Civil and Political Rights, suggests that the scope of human rights can
be understood to include those that relate to an individual's social, economic,
cultural, political and civil relations. It thus seems to closely identify the term to the
universally accepted traits and attributes of an individual, along with what is
generally considered to be his inherent and inalienable rights, encompassing almost
all aspects of life.

Have these broad concepts been equally contemplated by the framers of our 1986
Constitutional Commission in adopting the specific provisions on human rights and
in creating an independent commission to safeguard these rights? It may of value to
look back at the country's experience under the martial law regime which may have,
in fact, impelled the inclusions of those provisions in our fundamental law. Many
voices have been heard. Among those voices, aptly represented perhaps of the
sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected
jurist and an advocate of civil liberties, who, in his paper, entitled "Present State of
Human Rights in the Philippines,"29 observes:

But while the Constitution of 1935 and that of 1973 enshrined in their
Bill of Rights most of the human rights expressed in the International
Covenant, these rights became unavailable upon the proclamation of
Martial Law on 21 September 1972. Arbitrary action then became the
rule. Individuals by the thousands became subject to arrest upon
suspicion, and were detained and held for indefinite periods,
sometimes for years, without charges, until ordered released by the
Commander-in-Chief or this representative. The right to petition for the
redress of grievances became useless, since group actions were
forbidden. So were strikes. Press and other mass media were
subjected to censorship and short term licensing. Martial law brought
with it the suspension of the writ of habeas corpus, and judges lost
independence and security of tenure, except members of the Supreme
Court. They were required to submit letters of resignation and were
dismissed upon the acceptance thereof. Torture to extort confessions
were practiced as declared by international bodies like Amnesty
International and the International Commission of Jurists.

Converging our attention to the records of the Constitutional Commission, we can

see the following discussions during its 26 August 1986 deliberations:

MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in
view of the importance of human rights and also because civil and
political rights have been determined by many international covenants
and human rights legislations in the Philippines, as well as the
Constitution, specifically the Bill of Rights and subsequent legislation.
Otherwise, if we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity would
also be curtailed.

So, it is important to delienate the parameters of its tasks so that the

commission can be most effective.

MR. BENGZON. That is precisely my difficulty because civil and

political rights are very broad. The Article on the Bill of Rights covers
civil and political rights. Every single right of an individual involves his
civil right or his political right. So, where do we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made
clear in the language of human rights advocates, as well as in the
Universal Declaration of Human Rights which addresses a number of
articles on the right to life, the right against torture, the right to fair and
public hearing, and so on. These are very specific rights that are
considered enshrined in many international documents and legal
instruments as constituting civil and political rights, and these are
precisely what we want to defend here.

MR. BENGZON. So, would the commissioner say civil and political
rights as defined in the Universal Declaration of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International

Covenant of Civil and Political Rights distinguished this right against
torture.

MR. BENGZON. So as to distinguish this from the other rights that we

have?

MR. GARCIA. Yes, because the other rights will encompass social and
economic rights, and there are other violations of rights of citizens
which can be addressed to the proper courts and authorities.

xxx xxx xxx

MR. BENGZON. So, we will authorize the commission to define its

functions, and, therefore, in doing that the commission will be
authorized to take under its wings cases which perhaps heretofore or
at this moment are under the jurisdiction of the ordinary investigative
and prosecutorial agencies of the government. Am I correct?

MR. GARCIA. No. We have already mentioned earlier that we would

like to define the specific parameters which cover civil and political
rights as covered by the international standards governing the behavior
of governments regarding the particular political and civil rights of
citizens, especially of political detainees or prisoners. This particular
aspect we have experienced during martial law which we would now
like to safeguard.

MR. BENGZON. Then, I go back to that question that I had. Therefore,

what we are really trying to say is, perhaps, at the proper time we
could specify all those rights stated in the Universal Declaration of
Human Rights and defined as human rights. Those are the rights that
we envision here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights
of our Constitution. They are integral parts of that.

MR. BENGZON. Therefore, is the Gentleman saying that all the rights
under the Bill of Rights covered by human rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

xxx xxx xxx

MR. RAMA. In connection with the discussion on the scope of human

rights, I would like to state that in the past regime, everytime we invoke
the violation of human rights, the Marcos regime came out with the
defense that, as a matter of fact, they had defended the rights of
people to decent living, food, decent housing and a life consistent with
human dignity.

So, I think we should really limit the definition of human rights to

political rights. Is that the sense of the committee, so as not to confuse
the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated

points raised by the previous speaker.

There are actually six areas where this Commission on Human Rights
could act effectively: 1) protection of rights of political detainees; 2)
treatment of prisoners and the prevention of tortures; 3) fair and public
trials; 4) cases of disappearances; 5) salvagings and hamletting; and
6) other crimes committed against the religious.

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.

I would like to start by saying that I agree with Commissioner Garcia

that we should, in order to make the proposed Commission more
effective, delimit as much as possible, without prejudice to future
expansion. The coverage of the concept and jurisdictional area of the
term "human rights". I was actually disturbed this morning when the
reference was made without qualification to the rights embodied in the
universal Declaration of Human Rights, although later on, this was
qualified to refer to civil and political rights contained therein.

If I remember correctly, Madam President, Commissioner Garcia, after

mentioning the Universal Declaration of Human Rights of 1948,
mentioned or linked the concept of human right with other human
rights specified in other convention which I do not remember. Am I
correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration
of Torture of 1985?

MR. GUINGONA. I do not know, but the commissioner mentioned

another.

MR. GARCIA. Madam President, the other one is the International

Convention on Civil and Political Rights of which we are signatory.

MR. GUINGONA. I see. The only problem is that, although I have a

copy of the Universal Declaration of Human Rights here, I do not have
a copy of the other covenant mentioned. It is quite possible that there
are rights specified in that other convention which may not be specified
here. I was wondering whether it would be wise to link our concept of
human rights to general terms like "convention," rather than specify the
rights contained in the convention.

As far as the Universal Declaration of Human Rights is concerned, the

Committee, before the period of amendments, could specify to us
which of these articles in the Declaration will fall within the concept of
civil and political rights, not for the purpose of including these in the
proposed constitutional article, but to give the sense of the
Commission as to what human rights would be included, without
prejudice to expansion later on, if the need arises. For example, there
was no definite reply to the question of Commissioner Regalado as to
whether the right to marry would be considered a civil or a social right.
It is not a civil right?

MR. GARCIA. Madam President, I have to repeat the various specific

civil and political rights that we felt must be envisioned initially by this
provision — freedom from political detention and arrest prevention of
torture, right to fair and public trials, as well as crimes involving
disappearance, salvagings, hamlettings and collective violations. So, it
is limited to politically related crimes precisely to protect the civil and
political rights of a specific group of individuals, and therefore, we are
not opening it up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the

Gentlemen is no longer linking his concept or the concept of the
Committee on Human Rights with the so-called civil or political rights
as contained in the Universal Declaration of Human Rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of

Human Rights, I was referring to an international instrument.

MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every
specific article therein, but only to those that pertain to the civil and
politically related, as we understand it in this Commission on Human
Rights.

MR. GUINGONA. Madam President, I am not even clear as to the

distinction between civil and social rights.

MR. GARCIA. There are two international covenants: the International

Covenant and Civil and Political Rights and the International Covenant
 on Economic, Social and Cultural Rights. The second covenant
contains all the different rights-the rights of labor to organize, the right
to education, housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of

the committee to those that the Gentlemen has specified.

MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. Thank you.

xxx xxx xxx

SR. TAN. Madam President, from the standpoint of the victims of

human rights, I cannot stress more on how much we need a
Commission on Human Rights. . . .

. . . human rights victims are usually penniless. They cannot pay and
very few lawyers will accept clients who do not pay. And so, they are
the ones more abused and oppressed. Another reason is, the cases
involved are very delicate — torture, salvaging, picking up without any
warrant of arrest, massacre — and the persons who are allegedly
guilty are people in power like politicians, men in the military and big
shots. Therefore, this Human Rights Commission must be
independent.

I would like very much to emphasize how much we need this

commission, especially for the little Filipino, the little individual who
needs this kind of help and cannot get it. And I think we should
concentrate only on civil and political violations because if we open this
to land, housing and health, we will have no place to go again and we
will not receive any response. . . .30 (emphasis supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is
a provision empowering the Commission on Human Rights to "investigate, on its
own or on complaint by any party, all forms of human rights violations involving civil
and political rights" (Sec. 1).

The term "civil rights,"31 has been defined as referring —

(t)o those (rights) that belong to every citizen of the state or country, or,
in wider sense, to all its inhabitants, and are not connected with the
organization or administration of the government. They include the
rights of property, marriage, equal protection of the laws, freedom of
contract, etc. Or, as otherwise defined civil rights are rights
appertaining to a person by virtue of his citizenship in a state or
community. Such term may also refer, in its general sense, to rights
capable of being enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude,
religious persecution, unreasonable searches and seizures, and imprisonment for
debt.32

Political rights,33 on the other hand, are said to refer to the right to participate, directly
or indirectly, in the establishment or administration of government, the right of
suffrage, the right to hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of government.34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is
readily apparent that the delegates envisioned a Commission on Human Rights that
would focus its attention to the more severe cases of human rights violations.
Delegate Garcia, for instance, mentioned such areas as the "(1) protection of rights
of political detainees, (2) treatment of prisoners and the prevention of tortures, (3)
fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting,
and (6) other crimes committed against the religious." While the enumeration has not
likely been meant to have any preclusive effect, more than just expressing a
statement of priority, it is, nonetheless, significant for the tone it has set. In any
event, the delegates did not apparently take comfort in peremptorily making a
conclusive delineation of the CHR's scope of investigatorial jurisdiction. They have
thus seen it fit to resolve, instead, that "Congress may provide for other cases of
violations of human rights that should fall within the authority of the Commission,
taking into account its recommendation."35

In the particular case at hand, there is no cavil that what are sought to be
demolished are the stalls, sari-sari stores and carinderia, as well as temporary
shanties, erected by private respondents on a land which is planned to be developed
into a "People's Park". More than that, the land adjoins the North EDSA of Quezon
City which, this Court can take judicial notice of, is a busy national highway. The
consequent danger to life and limb is not thus to be likewise simply ignored. It is
indeed paradoxical that a right which is claimed to have been violated is one that
cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may,
looking at the standards hereinabove discoursed vis-a-vis the circumstances
obtaining in this instance, we are not prepared to conclude that the order for the
demolition of the stalls, sari-sari stores and carinderia of the private respondents can
fall within the compartment of "human rights violations involving civil and political
rights" intended by the Constitution.

On its contempt powers, the CHR is constitutionally authorized to "adopt its

operational guidelines and rules of procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its
authority in providing in its revised rules, its power "to cite or hold any person in
direct or indirect contempt, and to impose the appropriate penalties in accordance
with the procedure and sanctions provided for in the Rules of Court." That power to
cite for contempt, however, should be understood to apply only to violations of its
adopted operational guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt could be
exercised against persons who refuse to cooperate with the said body, or who
unduly withhold relevant information, or who decline to honor summons, and the like,
in pursuing its investigative work. The "order to desist" (a semantic interplay for a
restraining order) in the instance before us, however, is not investigatorial in
character but prescinds from an adjudicative power that it does not possess.
In Export Processing Zone Authority vs. Commission on Human Rights,36 the Court,
speaking through Madame Justice Carolina Griño-Aquino, explained:

The constitutional provision directing the CHR to "provide for

preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection" may not
be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, it that were the intention, the
Constitution would have expressly said so. "Jurisdiction is conferred
only by the Constitution or by law". It is never derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned

in the Constitution refer to extrajudicial and judicial remedies (including
a writ of preliminary injunction) which the CHR may seek from proper
 courts on behalf of the victims of human rights violations. Not being a
court of justice, the CHR itself has no jurisdiction to issue the writ, for a
writ of preliminary injunction may only be issued "by the judge of any
court in which the action is pending [within his district], or by a Justice
of the Court of Appeals, or of the Supreme Court. . . . A writ of
preliminary injunction is an ancillary remedy. It is available only in a
pending principal action, for the preservation or protection of the rights
and interests of a party thereto, and for no other purpose." (footnotes
omitted).

The Commission does have legal standing to indorse, for appropriate action, its
findings and recommendations to any appropriate agency of government. 37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of

financial aid to the vendors affected by the demolition is not an appropriate issue in
the instant petition. Not only is there lack of locus standi on the part of the petitioners
to question the disbursement but, more importantly, the matter lies with the
appropriate administrative agencies concerned to initially consider.

The public respondent explains that this petition for prohibition filed by the petitioners
has become moot and academic since the case before it (CHR Case No. 90-1580)
has already been fully heard, and that the matter is merely awaiting final resolution.
It is true that prohibition is a preventive remedy to restrain the doing of an act about
to be done, and not intended to provide a remedy for an act already
accomplished. 38 Here, however, said Commission admittedly has yet to promulgate
its resolution in CHR Case No. 90-1580. The instant petition has been intended,
among other things, to also prevent CHR from precisely doing that.39

WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on
Human Rights is hereby prohibited from further proceeding with CHR Case No. 90-
1580 and from implementing the P500.00 fine for contempt. The temporary
restraining order heretofore issued by this Court is made permanent. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo, Melo, Quiason and Puno, JJ., concur.

Separate Opinions

PADILLA, J., dissenting:

I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human

rights, et al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the
resolution of 29 January 1991 and my dissenting opinion in "Export Processing Zone
Authority vs. The Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered view
that the CHR can issue a cease and desist order to maintain a status quo pending
its investigation of a case involving an alleged human rights violation; that such
cease and desist order maybe necessary in situations involving a threatened
violation of human rights, which the CHR intents to investigate.

In the case at bench, I would consider the threatened demolition of the stalls, sari-
sari stores and carinderias as well as the temporary shanties owned by the private
respondents as posing prima facie a case of human rights violation because it
involves an impairment of the civil rights of said private respondents, under the
definition of civil rights cited by the majority opinion (pp. 20-21) and which the CHR
has unquestioned authority to investigate (Section 18, Art. XIII, 1987 Constitution).

Human rights demand more than lip service and extend beyond impressive displays
of placards at street corners. Positive action and results are what count. Certainly,
the cause of human rights is not enhanced when the very constitutional agency
tasked to protect and vindicate human rights is transformed by us, from the start,
into a tiger without dentures but with maimed legs to boot. I submit the CHR should
be given a wide latitude to look into and investigate situations which may (or may not
ultimately) involve human rights violations.

ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR
for further proceedings.

# Separate Opinions

PADILLA, J., dissenting:

I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human

rights, et al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the
resolution of 29 January 1991 and my dissenting opinion in "Export Processing Zone
Authority vs. The Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered view
that the CHR can issue a cease and desist order to maintain a status quo pending
its investigation of a case involving an alleged human rights violation; that such
cease and desist order maybe necessary in situations involving a threatened
violation of human rights, which the CHR intents to investigate.

In the case at bench, I would consider the threatened demolition of the stalls, sari-
sari stores and carinderias as well as the temporary shanties owned by the private
respondents as posing prima facie a case of human rights violation because it
involves an impairment of the civil rights of said private respondents, under the
definition of civil rights cited by the majority opinion (pp. 20-21) and which the CHR
has unquestioned authority to investigate (Section 18, Art. XIII, 1987 Constitution).

Human rights demand more than lip service and extend beyond impressive displays
of placards at street corners. Positive action and results are what count. Certainly,
the cause of human rights is not enhanced when the very constitutional agency
tasked to protect and vindicate human rights is transformed by us, from the start,
into a tiger without dentures but with maimed legs to boot. I submit the CHR should
be given a wide latitude to look into and investigate situations which may (or may not
ultimately) involve human rights violations.

ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR
for further proceedings.
#Footnotes

EN BANC

G.R. No. 96681 December 2, 1991

HON. ISIDRO CARIÑO, in his capacity as Secretary of the Department of

Education, Culture & Sports, DR. ERLINDA LOLARGA, in her capacity as
Superintendent of City Schools of Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA
BABARAN, ELSA IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL
CASTILLO, ELSA REYES and APOLINARIO ESBER, respondents.

NARVASA, J.:

The issue raised in the special civil action of certiorari and prohibition at bar,
instituted by the Solicitor General, may be formulated as follows: where the relief
sought from the Commission on Human Rights by a party in a case consists of the
review and reversal or modification of a decision or order issued by a court of justice
or government agency or official exercising quasi-judicial functions, may the
Commission take cognizance of the case and grant that relief? Stated otherwise,
where a particular subject-matter is placed by law within the jurisdiction of a court or
other government agency or official for purposes of trial and adjudgment, may the
Commission on Human Rights take cognizance of the same subject-matter for the
same purposes of hearing and adjudication?

The facts narrated in the petition are not denied by the respondents and are hence
taken as substantially correct for purposes of ruling on the legal questions posed in
the present action. These facts, 1 together with others involved in related cases
recently resolved by this Court 2 or otherwise undisputed on the record, are
hereunder set forth.

1. On September 17, 1990, a Monday and a class day, some 800 public school
teachers, among them members of the Manila Public School Teachers Association
(MPSTA) and Alliance of Concerned Teachers (ACT) undertook what they described
as "mass concerted actions" to "dramatize and highlight" their plight resulting from
the alleged failure of the public authorities to act upon grievances that had time and
again been brought to the latter's attention. According to them they had decided to
undertake said "mass concerted actions" after the protest rally staged at the DECS
premises on September 14, 1990 without disrupting classes as a last call for the
government to negotiate the granting of demands had elicited no response from the
Secretary of Education. The "mass actions" consisted in staying away from their
classes, converging at the Liwasang Bonifacio, gathering in peaceable assemblies,
etc. Through their representatives, the teachers participating in the mass actions
were served with an order of the Secretary of Education to return to work in 24 hours
or face dismissal, and a memorandum directing the DECS officials concerned to
initiate dismissal proceedings against those who did not comply and to hire their
replacements. Those directives notwithstanding, the mass actions continued into the
week, with more teachers joining in the days that followed. 3
Among those who took part in the "concerted mass actions" were the eight (8) private respondents herein, teachers at the Ramon Magsaysay High School, Manila, who had agreed to support the non-
political demands of the MPSTA. 4
2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were administratively charged on the basis of the principal's report and given five (5) days to answer the
charges. They were also preventively suspended for ninety (90) days "pursuant to Section 41 of P.D. 807" and temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H). An investigation
committee was consequently formed to hear the charges in accordance with P.D. 807. 5

3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named

the latter filed separate answers, opted for a formal investigation, and also
respondents, 6

moved "for suspension of the administrative proceedings pending resolution by . .

(the Supreme) Court of their application for issuance of an injunctive writ/temporary
restraining order." But when their motion for suspension was denied by Order dated
November 8, 1990 of the Investigating Committee, which later also denied their
motion for reconsideration orally made at the hearing of November 14, 1990, "the
respondents led by their counsel staged a walkout signifying their intent to boycott
the entire proceedings." 7 The case eventually resulted in a Decision of Secretary
Cariño dated December 17, 1990, rendered after evaluation of the evidence as well
as the answers, affidavits and documents submitted by the respondents, decreeing
dismissal from the service of Apolinario Esber and the suspension for nine (9)
months of Babaran, Budoy and del Castillo. 8
4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of Manila against petitioner (Cariño), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the MPSTA
went to the Supreme Court (on certiorari, in an attempt to nullify said dismissal, grounded on the) alleged violation of the striking teachers" right to due process and peaceable assembly docketed as G.R.

Both petitions in this Court were

No. 95445, supra. The ACT also filed a similar petition before the Supreme Court . . . docketed as G.R. No. 95590." 9

filed in behalf of the teacher associations, a few named individuals, and "other
teacher-members so numerous similarly situated" or "other similarly situated public
school teachers too numerous to be impleaded."

5. In the meantime, too, the respondent teachers submitted sworn statements dated
September 27, 1990 to the Commission on Human Rights to complain that while
they were participating in peaceful mass actions, they suddenly learned of their
replacements as teachers, allegedly without notice and consequently for reasons
completely unknown to them. 10
6. Their complaints — and those of other teachers also "ordered suspended by the . . . (DECS)," all numbering forty-two (42) — were docketed as "Striking Teachers CHR Case No. 90775." In connection
therewith the Commission scheduled a "dialogue" on October 11, 1990, and sent a subpoena to Secretary Cariño requiring his attendance therein. 11

On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cariño) received the subpoena which was served at his office, . . . (the) Commission, with the Chairman presiding,
and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the case;" it heard the complainants' counsel (a) explain that his clients had been "denied due process and suspended
without formal notice, and unjustly, since they did not join the mass leave," and (b) expatiate on the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they

The Commission thereafter issued an Order 13reciting these facts

(CHR complainants) sympathize." 12

and making the following disposition:

To be properly apprised of the real facts of the case and be accordingly

guided in its investigation and resolution of the matter, considering that these
forty two teachers are now suspended and deprived of their wages, which
they need very badly, Secretary Isidro Cariño, of the Department of
Education, Culture and Sports, Dr. Erlinda Lolarga, school superintendent of
Manila and the Principal of Ramon Magsaysay High School, Manila, are
hereby enjoined to appear and enlighten the Commission en banc on October
19, 1990 at 11:00 A.M. and to bring with them any and all documents relevant
to the allegations aforestated herein to assist the Commission in this matter.
Otherwise, the Commission will resolve the complaint on the basis of
complainants' evidence.

xxx xxx xxx

7. Through the Office of the Solicitor General, Secretary Cariño sought and was
granted leave to file a motion to dismiss the case. His motion to dismiss was
submitted on November 14, 1990 alleging as grounds therefor, "that the complaint
states no cause of action and that the CHR has no jurisdiction over the case." 14
8. Pending determination by the Commission of the motion to dismiss, judgments affecting the "striking teachers" were
promulgated in two (2) cases, as aforestated, viz.:

a) The Decision dated December l7, 1990 of Education Secretary Cariño in Case No. DECS 90-082, decreeing dismissal from the service of Apolinario Esber and the suspension for nine
(9) months of Babaran, Budoy and del Castillo; 15 and

b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and 95590 dismissing the petitions "without prejudice to any appeals, if still timely, that the individual
petitioners may take to the Civil Service Commission on the matters complained of," 16 and inter alia "ruling that it was prima facie lawful for petitioner Cariño to issue return-to-work
orders, file administrative charges against recalcitrants, preventively suspend them, and issue decision on those charges." 17

9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cariño's motion to dismiss and required him and Superintendent Lolarga "to submit their counter-affidavits within ten (10)

It held that the "striking

days . . . (after which) the Commission shall proceed to hear and resolve the case on the merits with or without respondents counter affidavit." 18

teachers" "were denied due process of law; . . . they should not have been replaced
without a chance to reply to the administrative charges;" there had been a violation
of their civil and political rights which the Commission was empowered to
investigate; and while expressing its "utmost respect to the Supreme Court . . . the
facts before . . . (it) are different from those in the case decided by the Supreme
Court" (the reference being unmistakably to this Court's joint Resolution of August 6,
1991 in G.R. Nos. 95445 and 95590, supra).

It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor
General, in behalf of petitioner Cariño, has commenced the present action
of certiorari and prohibition.

The Commission on Human Rights has made clear its position that it does not feel
bound by this Court's joint Resolution in G.R. Nos. 95445 and 95590, supra. It has
also made plain its intention "to hear and resolve the case (i.e., Striking Teachers
HRC Case No. 90-775) on the merits." It intends, in other words, to try and decide or
hear and determine, i.e., exercise jurisdiction over the following general issues:

1) whether or not the striking teachers were denied due process, and just cause
exists for the imposition of administrative disciplinary sanctions on them by their
superiors; and

2) whether or not the grievances which were "the cause of the mass leave of
MPSTA teachers, (and) with which causes they (CHR complainants) sympathize,"
justify their mass action or strike.

The Commission evidently intends to itself adjudicate, that is to say, determine with
character of finality and definiteness, the same issues which have been passed
upon and decided by the Secretary of Education, Culture & Sports, subject to appeal
to the Civil Service Commission, this Court having in fact, as aforementioned,
declared that the teachers affected may take appeals to the Civil Service
Commission on said matters, if still timely.

The threshold question is whether or not the Commission on Human Rights has the
power under the Constitution to do so; whether or not, like a court of justice, 19 or
even a quasi-judicial agency, 20 it has jurisdiction or adjudicatory powers over, or the
power to try and decide, or hear and determine, certain specific type of cases, like
alleged human rights violations involving civil or political rights.

The Court declares the Commission on Human Rights to have no such power; and
that it was not meant by the fundamental law to be another court or quasi-judicial
agency in this country, or duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power
is that it may investigate, i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political rights. But fact finding is
not adjudication, and cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the authority
of applying the law to those factual conclusions to the end that the controversy may
be decided or determined authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law. 21 This function, to repeat,
the Commission does not have. 22

The proposition is made clear by the constitutional provisions specifying the powers of the Commission on Human Rights.

Upon its constitution, it succeeded and

The Commission was created by the 1987 Constitution as an independent office. 23

superseded the Presidential Committee on Human Rights existing at the time of the
effectivity of the Constitution. 24 Its powers and functions are the following 25

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and
political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance
with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well
as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to enhance respect for the primacy of
human rights;

(6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to
victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other
evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

As should at once be observed, only the first of the enumerated powers and functions bears any resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the
Commission the power to investigate all forms of human rights violations involving civil and political rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise that
power pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation conducted by
it or under its authority, it may grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth. It
may also request the assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by its
findings. 26
But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial bodies do. To
investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood
and quite distinct meanings.

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into

The purpose of investigation, of

systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." 27

course, is to discover, to find out, to learn, obtain information. Nowhere included or

intimated is the notion of settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by
step by patient inquiry or observation. To trace or track; to search into; to examine
and inquire into with care and accuracy; to find out by careful inquisition;
examination; the taking of evidence; a legal inquiry;" 28 "to inquire; to make an
investigation," "investigation" being in turn describe as "(a)n administrative function,
the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec.
257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters." 29
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of

And "adjudge" means "to decide

the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as judge." 30

or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant

judicially in a case of controversy . . . ." 31
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." 32

Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should not "try and
resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775, as it has announced it
means to do; and it cannot do so even if there be a claim that in the administrative disciplinary proceedings against the
teachers in question, initiated and conducted by the DECS, their human rights, or civil or political rights had been transgressed.
More particularly, the Commission has no power to "resolve on the merits" the question of (a) whether or not the mass
concerted actions engaged in by the teachers constitute and are prohibited or otherwise restricted by law; (b) whether or not
the act of carrying on and taking part in those actions, and the failure of the teachers to discontinue those actions, and return to
their classes despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and
regulations warranting administrative disciplinary sanctions, or are justified by the grievances complained of by them; and (c)
what where the particular acts done by each individual teacher and what sanctions, if any, may properly be imposed for said
acts or omissions.

These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of Education, being within the scope
of the disciplinary powers granted to him under the Civil Service Law, and also, within the appellate jurisdiction of the Civil
Service Commission.

and it appears that appeals have

Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues and resolved them, 33

been seasonably taken by the aggrieved parties to the Civil Service Commission;
and even this Court itself has had occasion to pass upon said issues. 34

Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary cases are
correct and are adequately based on substantial evidence; whether or not the proceedings themselves are void or defective in
not having accorded the respondents due process; and whether or not the Secretary of Education had in truth committed
"human rights violations involving civil and political rights," are matters which may be passed upon and determined through a
motion for reconsideration addressed to the Secretary Education himself, and in the event of an adverse verdict, may be
reviewed by the Civil Service Commission and eventually the Supreme Court.

The Commission on Human Rights simply has no place in this scheme of things. It has no business intruding into the
jurisdiction and functions of the Education Secretary or the Civil Service Commission. It has no business going over the same
ground traversed by the latter and making its own judgment on the questions involved. This would accord success to what may
well have been the complaining teachers' strategy to abort, frustrate or negate the judgment of the Education Secretary in the
administrative cases against them which they anticipated would be adverse to them.

This cannot be done. It will not be permitted to be done.

In any event, the investigation by the Commission on Human Rights would serve no useful purpose. If its investigation should result in conclusions contrary to those reached by Secretary Cariño, it would
have no power anyway to reverse the Secretary's conclusions. Reversal thereof can only by done by the Civil Service Commission and lastly by this Court. The only thing the Commission can do, if it

It cannot
concludes that Secretary Cariño was in error, is to refer the matter to the appropriate Government agency or tribunal for assistance; that would be the Civil Service Commission. 35

arrogate unto itself the appellate jurisdiction of the Civil Service Commission.

WHEREFORE, the petition is granted; the Order of December 29, 1990 is

ANNULLED and SET ASIDE, and the respondent Commission on Human Rights
and the Chairman and Members thereof are prohibited "to hear and resolve the case
(i.e., Striking Teachers HRC Case No. 90-775) on the merits."

SO ORDERED.

Melencio-Herrera, Cruz, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado,

Davide, Jr. and Romero, JJ, concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to
overcome the Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R.
Narvasa

I wish to add however that the Commission on Human Rights should concern itself
in this case and in many other similar cases:

(1) not only with the human rights of striking teachers but also the human
rights of students and their parents;

(2) not only with the human rights of the accused but also the human rights of
the victims and the latter's families;
 (3) not only with the human rights of those who rise against the government
but also those who defend the same;

(4) not only the human rights of striking laborers but also those who as a
consequence of strikes may be laid off because of financial repercussions.

The defense of human rights is not a monopoly of a government agency (such as

the Commission on Human Rights) nor the monopoly of a group of lawyers
defending so-called "human rights' but the responsibility of ALL AGENCIES
(governmental or private) and of ALL LAWYERS, JUDGES, and JUSTICES.

Finally, the Commission should realize that while there are "human rights", there are
also corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate
opinion filed in this case.

# Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to
overcome the Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R.
Narvasa

I wish to add however that the Commission on Human Rights should concern itself
in this case and in many other similar cases:

(1) not only with the human rights of striking teachers but also the human
rights of students and their parents;

(2) not only with the human rights of the accused but also the human rights of
the victims and the latter's families;

(3) not only with the human rights of those who rise against the government
but also those who defend the same;

(4) not only the human rights of striking laborers but also those who as a
consequence of strikes may be laid off because of financial repercussions.
The defense of human rights is not a monopoly of a government agency (such as
the Commission on Human Rights) nor the monopoly of a group of lawyers
defending so-called "human rights' but the responsibility of ALL AGENCIES
(governmental or private) and of ALL LAWYERS, JUDGES, and JUSTICES.

Finally, the Commission should realize that while there are "human rights", there are
also corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate
opinion filed in this case.

for the Sandiganbayan to dismiss the forfeiture case against private

respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the
case before completion of the presentation of petitioners evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the

properties confiscated from Dimaanos house as illegally seized and
therefore inadmissible in evidence. This issue bears a significant effect on
petitioners case since these properties comprise most of petitioners
evidence against private respondents. Petitioner will not have much
evidence to support its case against private respondents if these properties
are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos
residence a search warrant captioned Illegal Possession of Firearms and
Ammunition. Dimaano was not present during the raid but Dimaanos
cousins witnessed the raid. The raiding team seized the items detailed in
the seizure receipt together with other items not included in the search
warrant. The raiding team seized these items: one baby armalite rifle with
two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of P2,870,000 and
US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure on March 3, 1986 or five days after the
successful EDSA revolution. Petitioner argues that a revolutionary
[39]

government was operative at that time by virtue of Proclamation No. 1

announcing that President Aquino and Vice President Laurel were taking
power in the name and by the will of the Filipino people. Petitioner asserts
[40]

that the revolutionary government effectively withheld the operation of the

1973 Constitution which guaranteed private respondents exclusionary
right.
Moreover, petitioner argues that the exclusionary right arising from an
illegal search applies only beginning 2 February 1987, the date of
ratification of the 1987 Constitution. Petitioner contends that all rights under
the Bill of Rights had already reverted to its embryonic stage at the time of
the search. Therefore, the government may confiscate the monies and
items taken from Dimaano and use the same in evidence against her since
at the time of their seizure, private respondents did not enjoy any
constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquinos Proclamation No. 3 dated 25 March
1986, the EDSA Revolution was done in defiance of the provisions of
the 1973 Constitution. The resulting government was indisputably a
[41]

revolutionary government bound by no constitution or legal limitations

except treaty obligations that the revolutionary government, as the de
jure government in the Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government was
bound by the Bill of Rights of the 1973 Constitution during
the interregnum, that is, after the actual and effective take-over of power
by the revolutionary government following the cessation of resistance by
loyalist forces up to 24 March 1986 (immediately before the adoption of the
Provisional Constitution); and (2) whether the protection accorded to
individuals under the International Covenant on Civil and Political Rights
(Covenant) and the Universal Declaration of Human Rights (Declaration)
remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum. However, we rule that the protection
accorded to individuals under the Covenant and the Declaration remained
in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the
extent and scope of such directives and orders.With the abrogation of the
1973 Constitution by the successful revolution, there was no municipal law
higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was neither a
constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno: [42]

A revolution has been defined as the complete overthrow of the established

government in any country or state by those who were previously subject to it or as
a sudden, radical and fundamental change in the government or political system,
usually effected with violence or at least some acts of violence. In Kelsen's book,
General Theory of Law and State, it is defined as that which occurs whenever the
legal order of a community is nullified and replaced by a new order . . . a way not
prescribed by the first order itself.

It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the people power revolution that the Filipino people tore
themselves away from an existing regime. This revolution also saw the
unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as an
inherent right of a people to cast out their rulers, change their policy or effect
radical reforms in their system of government or institutions by force or a general
uprising when the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable. It has been said that
the locus of positive law-making power lies with the people of the state and from
there is derived the right of the people to abolish, to reform and to alter any
existing form of government without regard to the existing constitution.

xxx

It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of
the 1973 Constitution as a Batasang Pambansa resolution had earlier declared
Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said
that the organization of Mrs. Aquinos Government which was met by little
resistance and her control of the state evidenced by the appointment of the Cabinet
and other key officers of the administration, the departure of the Marcos Cabinet
officials, revamp of the Judiciary and the Military signaled the point where the
legal system then in effect, had ceased to be obeyed by the Filipino. (Emphasis
supplied)

To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration orders
issued by the Philippine Commission on Good Government (PCGG) before
the adoption of the Freedom Constitution. The sequestration orders, which
direct the freezing and even the take-over of private property by mere
executive issuance without judicial action, would violate the due process
and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government, petitioner Baseco, while conceding
[43]

there was no Bill of Rights during the interregnum, questioned the

continued validity of the sequestration orders upon adoption of the
Freedom Constitution in view of the due process clause in its Bill of
Rights. The Court ruled that the Freedom Constitution, and later the 1987
Constitution, expressly recognized the validity of sequestration orders,
thus:

If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG
to issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution recognizes the power and duty
of the President to enact measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. And as also already adverted to,
Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies the
authority to issue sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986.

The framers of both the Freedom Constitution and the 1987

Constitution were fully aware that the sequestration orders would clash
with the Bill of Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the sequestration
orders.The following discourse by Commissioner Joaquin G. Bernas during
the deliberations of the Constitutional Commission is instructive:

FR. BERNAS: Madam President, there is something schizophrenic about the

arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in the
Gregorio Araneta University Foundation, of which all of us have been
given a copy. On the one hand, he argues that everything the Commission
is doing is traditionally legal. This is repeated by Commissioner Romulo
also. Minister Salonga spends a major portion of his lecture developing
that argument. On the other hand, almost as an afterthought, he says that in
the end what matters are the results and not the legal niceties, thus
suggesting that the PCGG should be allowed to make some legal shortcuts,
another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the
CONCOM for special protection? The answer is clear. What they are
doing will not stand the test of ordinary due process, hence they are
asking for protection, for exceptions. Grandes malos, grandes remedios,
fine, as the saying stands, but let us not say grandes malos, grande y malos
remedios. That is not an allowable extrapolation. Hence, we should not
give the exceptions asked for, and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the
CONCOM is to hasten constitutional normalization. Very much at the
heart of the constitutional normalization is the full effectivity of the Bill of
Rights. We cannot, in one breath, ask for constitutional normalization and
at the same time ask for a temporary halt to the full functioning of what is
at the heart of constitutionalism. That would be hypocritical; that would be
a repetition of Marcosian protestation of due process and rule of law. The
New Society word for that is backsliding. It is tragic when we begin to
backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to become
ingrained. The committee report asks for extraordinary exceptions from
the Bill of Rights for six months after the convening of Congress, and
Congress may even extend this longer.
 Good deeds repeated ripen into virtue; bad deeds repeated become vice.
What the committee report is asking for is that we should allow the new
government to acquire the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested right to its
practice, and they will fight tooth and nail to keep the franchise. That
would be an unhealthy way of consolidating the gains of a democratic
revolution.
Third, the argument that what matters are the results and not the legal
niceties is an argument that is very disturbing. When it comes from a
staunch Christian like Commissioner Salonga, a Minister, and repeated
verbatim by another staunch Christian like Commissioner Tingson, it
becomes doubly disturbing and even discombobulating. The argument
makes the PCGG an auctioneer, placing the Bill of Rights on the auction
block. If the price is right, the search and seizure clause will be sold. Open
your Swiss bank account to us and we will award you the search and
seizure clause. You can keep it in your private safe.
Alternatively, the argument looks on the present government as hostage to
the hoarders of hidden wealth. The hoarders will release the hidden health
if the ransom price is paid and the ransom price is the Bill of Rights,
specifically the due process in the search and seizure clauses. So, there is
something positively revolving about either argument. The Bill of Rights
is not for sale to the highest bidder nor can it be used to ransom captive
dollars. This nation will survive and grow strong, only if it would become
convinced of the values enshrined in the Constitution of a price that is
beyond monetary estimation.
For these reasons, the honorable course for the Constitutional Commission
is to delete all of Section 8 of the committee report and allow the new
Constitution to take effect in full vigor. If Section 8 is deleted, the PCGG
has two options. First, it can pursue the Salonga and the Romulo argument
that what the PCGG has been doing has been completely within the pale of
the law. If sustained, the PCGG can go on and should be able to go on,
even without the support of Section 8. If not sustained, however, the
PCGG has only one honorable option, it must bow to the majesty of the
Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let
me conclude with what another Christian replied when asked to toy around
with the law. From his prison cell, Thomas More said, "I'll give the devil
benefit of law for my nations safety sake. I ask the Commission to give the
devil benefit of law for our nations sake. And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the

amendment exceptingsequestration orders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section
26, Article XVIII of the 1987 Constitution. The framers of the Constitution
[44]

were fully aware that absent Section 26, sequestration orders would not
stand the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in
force during the interregnum, absent a constitutional provision excepting
sequestration orders from such Bill of Rights, would clearly render all
sequestration orders void during the interregnum. Nevertheless, even
during the interregnum the Filipino people continued to enjoy, under the
Covenant and the Declaration, almost the same rights found in the Bill of
Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de
jure government, assumed responsibility for the States good faith
compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory State to
respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant. Under Article
[45]

17(1) of the Covenant, the revolutionary government had the duty to insure
that [n]o one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence.
The Declaration, to which the Philippines is also a signatory, provides
in its Article 17(2) that [n]o one shall be arbitrarily deprived of his
property. Although the signatories to the Declaration did not intend it as a
legally binding document, being only a declaration, the Court has
interpreted the Declaration as part of the generally accepted principles of
international law and binding on the State. Thus, the revolutionary
[46]

government was also obligated under international law to observe the

rights of individuals under the Declaration.
[47]

The revolutionary government did not repudiate the Covenant or the

Declaration during the interregnum. Whether the revolutionary government
could have repudiated all its obligations under the Covenant or the
Declaration is another matter and is not the issue here. Suffice it to say that
the Court considers the Declaration as part of customary international law,
and that Filipinos as human beings are proper subjects of the rules of
international law laid down in the Covenant.The fact is the revolutionary
government did not repudiate the Covenant or the Declaration in the same
way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the States
good faith compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25
March 1986 that the directives and orders of the revolutionary government
became subject to a higher municipal law that, if contravened, rendered
such directives and orders void. The Provisional Constitution adopted
verbatim the Bill of Rights of the 1973 Constitution. The Provisional
[48]

Constitution served as a self-limitation by the revolutionary government to

avoid abuses of the absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers were valid so long as
these officers did not exceed the authority granted them by the
revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration. In this case, the revolutionary
government presumptively sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by a judge upon
proper application, specified the items to be searched and seized. The
warrant is thus valid with respect to the items specifically described in the
warrant.
However, the Constabulary raiding team seized items not included in
the warrant. As admitted by petitioners witnesses, the raiding team
confiscated items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES

Q. According to the search warrant, you are supposed to seize only for
weapons. What else, aside from the weapons, were seized from the
house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US
dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the
house of Elizabeth Dimaano. Do you know the reason why your team
also seized other properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed
that the reason why they also brought the other items not included in the
search warrant was because the money and other jewelries were
contained in attach cases and cartons with markings Sony Trinitron, and
I think three (3) vaults or steel safes. Believing that the attach cases and
the steel safes were containing firearms, they forced open these
containers only to find out that they contained money.

xxx

Q. You said you found money instead of weapons, do you know the reason
why your team seized this money instead of weapons?
A. I think the overall team leader and the other two officers assisting him
decided to bring along also the money because at that time it was
already dark and they felt most secured if they will bring that because
they might be suspected also of taking money out of those items, your
Honor.[49]

Cross-examination
Atty. Banaag

Q. Were you present when the search warrant in connection with this case
was applied before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure
of five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.

xxx

AJ AMORES

Q. Before you applied for a search warrant, did you conduct surveillance in the
house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU
elements, your Honor.
Q. And this party believed there were weapons deposited in the house of Miss
Elizabeth Dimaano?
A. Yes, your Honor.
 Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any
other properties or contraband which could be found in the residence of
Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not
include that in the application for search warrant considering that we
have not established concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe
that only weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]

xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle
M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with
the fiscals office who charged Elizabeth Dimaano for Illegal Possession
of Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not
correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search
warrant, like for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to
bring along also the jewelries and other items, sir. I do not really know
where it was taken but they brought along also these articles. I do not
really know their reason for bringing the same, but I just learned that
these were taken because they might get lost if they will just leave this
behind.

xxx

Q. How about the money seized by your raiding team, they were not also
included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were
suspected to be containing pistols or other high powered firearms, but in
the course of the search the contents turned out to be money. So the
team leader also decided to take this considering that they believed that
if they will just leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by
your raiding team, like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened.[51]

It is obvious from the testimony of Captain Sebastian that the warrant

did not include the monies, communications equipment, jewelry and land
titles that the raiding team confiscated. The search warrant did not
particularly describe these items and the raiding team confiscated them on
its own authority. The raiding team had no legal basis to seize these items
without showing that these items could be the subject of warrantless
search and seizure. Clearly, the raiding team exceeded its authority when
[52]

it seized these items.

The seizure of these items was therefore void, and unless these items
are contraband per se, and they are not, they must be returned to the
[53]

person from whom the raiding seized them.However, we do not declare

that such person is the lawful owner of these items, merely that the search
and seizure warrant could not be used as basis to seize and withhold these
items from the possessor. We thus hold that these items should be
returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The
questioned Resolutions of the Sandiganbayan dated 18 November 1991
and 25 March 1992 in Civil Case No. 0037, remanding the records of this
case to the Ombudsman for such appropriate action as the evidence may
warrant, and referring this case to the Commissioner of the Bureau of
Internal Revenue for a determination of any tax liability of respondent
Elizabeth Dimaano, are AFFIRMED.
SO ORDERED.
Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr. and Azcuna, JJ., concur.
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his
concurring opinion.
Puno and Vitug, JJ., see separate opinion
Panganiban, J., in the result.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
Ynares-Santiago, J., in the result. I concur in the separate opinion of J.
Reynato Puno.
Tinga, J., separate opinion reserved

EN BANC

G.R. No. 75885 May 27, 1987

BATAAN SHIPYARD & ENGINEERING CO., INC. (BASECO), petitioner,

vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, CHAIRMAN JOVITO
SALONGA, COMMISSIONER MARY CONCEPCION BAUTISTA,
COMMISSIONER RAMON DIAZ, COMMISSIONER RAUL R. DAZA,
COMMISSIONER QUINTIN S. DOROMAL, CAPT. JORGE B. SIACUNCO, et
al., respondents.

Apostol, Bernas, Gumaru, Ona and Associates for petitioner.

Vicente G. Sison for intervenor A.T. Abesamis.

NARVASA, J.:
Challenged in this special civil action of certiorari and prohibition by a private
corporation known as the Bataan Shipyard and Engineering Co., Inc. are: (1)
Executive Orders Numbered 1 and 2, promulgated by President Corazon C. Aquino
on February 28, 1986 and March 12, 1986, respectively, and (2) the sequestration,
takeover, and other orders issued, and acts done, in accordance with said executive
orders by the Presidential Commission on Good Government and/or its
Commissioners and agents, affecting said corporation.

1. The Sequestration, Takeover, and Other Orders Complained of

a. The Basic Sequestration Order

The sequestration order which, in the view of the petitioner corporation, initiated all
its misery was issued on April 14, 1986 by Commissioner Mary Concepcion
Bautista. It was addressed to three of the agents of the Commission, hereafter
simply referred to as PCGG. It reads as follows:

RE: SEQUESTRATION ORDER

By virtue of the powers vested in the Presidential Commission on

Good Government, by authority of the President of the Philippines, you
are hereby directed to sequester the following companies.

1. Bataan Shipyard and Engineering Co., Inc.

(Engineering Island Shipyard and Mariveles Shipyard)

2. Baseco Quarry

3. Philippine Jai-Alai Corporation

4. Fidelity Management Co., Inc.

5. Romson Realty, Inc.

6. Trident Management Co.

7. New Trident Management

8. Bay Transport

9. And all affiliate companies of Alfredo "Bejo"

Romualdez

You are hereby ordered:

1. To implement this sequestration order with a minimum disruption of

these companies' business activities.

2. To ensure the continuity of these companies as going concerns, the

care and maintenance of these assets until such time that the Office of
the President through the Commission on Good Government should
decide otherwise.

3. To report to the Commission on Good Government periodically.

 Further, you are authorized to request for Military/Security Support
from the Military/Police authorities, and such other acts essential to the
achievement of this sequestration order. 1
b. Order for Production of Documents

On the strength of the above sequestration order, Mr. Jose M. Balde, acting for the
PCGG, addressed a letter dated April 18, 1986 to the President and other officers of
petitioner firm, reiterating an earlier request for the production of certain documents,
to wit:

1. Stock Transfer Book

2. Legal documents, such as:

2.1. Articles of Incorporation

2.2. By-Laws

2.3. Minutes of the Annual Stockholders Meeting from

1973 to 1986

2.4. Minutes of the Regular and Special Meetings of the

Board of Directors from 1973 to 1986

2.5. Minutes of the Executive Committee Meetings from

1973 to 1986

2.6. Existing contracts with suppliers/contractors/others.

3. Yearly list of stockholders with their corresponding

share/stockholdings from 1973 to 1986 duly certified by the Corporate
Secretary.

4. Audited Financial Statements such as Balance Sheet, Profit & Loss

and others from 1973 to December 31, 1985.

5. Monthly Financial Statements for the current year up to March 31,

1986.

6. Consolidated Cash Position Reports from January to April 15, 1986.

7. Inventory listings of assets up dated up to March 31, 1986.

8. Updated schedule of Accounts Receivable and Accounts Payable.

9. Complete list of depository banks for all funds with the authorized
signatories for withdrawals thereof.

10. Schedule of company investments and placements. 2

The letter closed with the warning that if the documents were not submitted within
five days, the officers would be cited for "contempt in pursuance with Presidential
Executive Order Nos. 1 and 2."

c. Orders Re Engineer Island

 (1) Termination of Contract for Security Services

A third order assailed by petitioner corporation, hereafter referred to simply as

BASECO, is that issued on April 21, 1986 by a Capt. Flordelino B. Zabala, a
member of the task force assigned to carry out the basic sequestration order. He
sent a letter to BASECO's Vice-President for Finance, 3 terminating the contract for
security services within the Engineer Island compound between BASECO and
"Anchor and FAIRWAYS" and "other civilian security agencies," CAPCOM military
personnel having already been assigned to the area,

(2) Change of Mode of Payment of Entry Charges

On July 15, 1986, the same Capt. Zabala issued a Memorandum addressed to
"Truck Owners and Contractors," particularly a "Mr. Buddy Ondivilla National Marine
Corporation," advising of the amendment in part of their contracts with BASECO in
the sense that the stipulated charges for use of the BASECO road network were
made payable "upon entry and not anymore subject to monthly billing as was
originally agreed upon." 4

d. Aborted Contract for Improvement of Wharf at Engineer Island

On July 9, 1986, a PCGG fiscal agent, S. Berenguer, entered into a contract in

behalf of BASECO with Deltamarine Integrated Port Services, Inc., in virtue of which
the latter undertook to introduce improvements costing approximately P210,000.00
on the BASECO wharf at Engineer Island, allegedly then in poor condition, avowedly
to "optimize its utilization and in return maximize the revenue which would flow into
the government coffers," in consideration of Deltamarine's being granted "priority in
using the improved portion of the wharf ahead of anybody" and exemption "from the
payment of any charges for the use of wharf including the area where it may install
its bagging equipments" "until the improvement remains in a condition suitable for
port operations." 5 It seems however that this contract was never consummated.
Capt. Jorge B. Siacunco, "Head- (PCGG) BASECO Management Team," advised
Deltamarine by letter dated July 30, 1986 that "the new management is not in a
position to honor the said contract" and thus "whatever improvements * * (may be
introduced) shall be deemed unauthorized * * and shall be at * * (Deltamarine's) own
risk." 6

e. Order for Operation of Sesiman Rock Quarry, Mariveles, Bataan

By Order dated June 20, 1986, Commissioner Mary Bautista first directed a PCGG
agent, Mayor Melba O. Buenaventura, "to plan and implement progress towards
maximizing the continuous operation of the BASECO Sesiman Rock Quarry * * by
conventional methods;" but afterwards, Commissioner Bautista, in representation of
the PCGG, authorized another party, A.T. Abesamis, to operate the quarry, located
at Mariveles, Bataan, an agreement to this effect having been executed by them on
September 17, 1986. 7

f. Order to Dispose of Scrap, etc.

By another Order of Commissioner Bautista, this time dated June 26, 1986, Mayor
Buenaventura was also "authorized to clean and beautify the Company's
compound," and in this connection, to dispose of or sell "metal scraps" and other
materials, equipment and machineries no longer usable, subject to specified
guidelines and safeguards including audit and verification. 8

g. The TAKEOVER Order

By letter dated July 14, 1986, Commissioner Ramon A. Diaz decreed the provisional
takeover by the PCGG of BASECO, "the Philippine Dockyard Corporation and all
their affiliated companies." 9 Diaz invoked the provisions of Section 3 (c) of Executive
Order No. 1, empowering the Commission —

* * To provisionally takeover in the public interest or to prevent its

disposal or dissipation, business enterprises and properties taken over
by the government of the Marcos Administration or by entities or
persons close to former President Marcos, until the transactions
leading to such acquisition by the latter can be disposed of by the
appropriate authorities.

A management team was designated to implement the order, headed by Capt.

Siacunco, and was given the following powers:

1. Conducts all aspects of operation of the subject companies;

2. Installs key officers, hires and terminates personnel as necessary;

3. Enters into contracts related to management and operation of the

companies;

4. Ensures that the assets of the companies are not dissipated and
used effectively and efficiently; revenues are duly accounted for; and
disburses funds only as may be necessary;

5. Does actions including among others, seeking of military support as

may be necessary, that will ensure compliance to this order;

6. Holds itself fully accountable to the Presidential Commission on

Good Government on all aspects related to this take-over order.

h. Termination of Services of BASECO Officers

Thereafter, Capt. Siacunco, sent letters to Hilario M. Ruiz, Manuel S. Mendoza,

Moises M. Valdez, Gilberto Pasimanero, and Benito R. Cuesta I, advising of the
termination of their services by the PCGG. 10

2. Petitioner's Plea and Postulates

It is the foregoing specific orders and acts of the PCGG and its members and agents
which, to repeat, petitioner BASECO would have this Court nullify. More particularly,
BASECO prays that this Court-

1) declare unconstitutional and void Executive Orders Numbered 1 and 2;

2) annul the sequestration order dated April- 14, 1986, and all other orders
subsequently issued and acts done on the basis thereof, inclusive of the takeover
order of July 14, 1986 and the termination of the services of the BASECO
executives. 11

a. Re Executive Orders No. 1 and 2, and the Sequestration and

Takeover Orders

While BASECO concedes that "sequestration without resorting to judicial action,

might be made within the context of Executive Orders Nos. 1 and 2 before March 25,
1986 when the Freedom Constitution was promulgated, under the principle that the
law promulgated by the ruler under a revolutionary regime is the law of the land, it
ceased to be acceptable when the same ruler opted to promulgate the Freedom
Constitution on March 25, 1986 wherein under Section I of the same, Article IV (Bill
of Rights) of the 1973 Constitution was adopted providing, among others, that "No
person shall be deprived of life, liberty and property without due process of law."
(Const., Art. I V, Sec. 1)." 12
It declares that its objection to the constitutionality of the Executive Orders "as well as the Sequestration Order * * and Takeover Order *
* issued purportedly under the authority of said Executive Orders, rests on four fundamental considerations: First, no notice and hearing
was accorded * * (it) before its properties and business were taken over; Second, the PCGG is not a court, but a purely investigative
agency and therefore not competent to act as prosecutor and judge in the same cause; Third, there is nothing in the issuances which
envisions any proceeding, process or remedy by which petitioner may expeditiously challenge the validity of the takeover after the
same has been effected; and Fourthly, being directed against specified persons, and in disregard of the constitutional presumption of
innocence and general rules and procedures, they constitute a Bill of Attainder." 13

b. Re Order to Produce Documents

It argues that the order to produce corporate records from 1973 to 1986, which it has
apparently already complied with, was issued without court authority and infringed its
constitutional right against self-incrimination, and unreasonable search and
seizure. 14

c. Re PCGG's Exercise of Right of Ownership and Management

BASECO further contends that the PCGG had unduly interfered with its right of
dominion and management of its business affairs by —

1) terminating its contract for security services with Fairways & Anchor, without the
consent and against the will of the contracting parties; and amending the mode of
payment of entry fees stipulated in its Lease Contract with National Stevedoring &
Lighterage Corporation, these acts being in violation of the non-impairment clause of
the constitution; 15
2) allowing PCGG Agent Silverio Berenguer to enter into an "anomalous contract" with Deltamarine Integrated Port Services, Inc.,
giving the latter free use of BASECO premises; 16

3) authorizing PCGG Agent, Mayor Melba Buenaventura, to manage and operate its
rock quarry at Sesiman, Mariveles; 17
4) authorizing the same mayor to sell or dispose of its metal scrap, equipment, machinery and other materials; 18

5) authorizing the takeover of BASECO, Philippine Dockyard Corporation, and all their affiliated companies;

6) terminating the services of BASECO executives: President Hilario M. Ruiz; EVP

Manuel S. Mendoza; GM Moises M. Valdez; Finance Mgr. Gilberto Pasimanero;
Legal Dept. Mgr. Benito R. Cuesta I; 19
7) planning to elect its own Board of Directors; 20

8) allowing willingly or unwillingly its personnel to take, steal, carry away from
petitioner's premises at Mariveles * * rolls of cable wires, worth P600,000.00 on May
11, 1986; 21

9) allowing "indiscriminate diggings" at Engineer Island to retrieve gold bars

supposed to have been buried therein. 22

3. Doubts, Misconceptions regarding Sequestration, Freeze and Takeover Orders

Many misconceptions and much doubt about the matter of sequestration, takeover
and freeze orders have been engendered by misapprehension, or incomplete
comprehension if not indeed downright ignorance of the law governing these
remedies. It is needful that these misconceptions and doubts be dispelled so that
uninformed and useless debates about them may be avoided, and arguments
tainted b sophistry or intellectual dishonesty be quickly exposed and discarded.
Towards this end, this opinion will essay an exposition of the law on the matter. In
the process many of the objections raised by BASECO will be dealt with.

4. The Governing Law

a. Proclamation No. 3

The impugned executive orders are avowedly meant to carry out the explicit
command of the Provisional Constitution, ordained by Proclamation No. 3, 23 that the
President-in the exercise of legislative power which she was authorized to continue
to wield "(until a legislature is elected and convened under a new Constitution" —
"shall give priority to measures to achieve the mandate of the people," among others
to (r)ecover ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts." 24

b. Executive Order No. 1

Executive Order No. 1 stresses the "urgent need to recover all ill-gotten wealth," and
postulates that "vast resources of the government have been amassed by former
President Ferdinand E. Marcos, his immediate family, relatives, and close
associates both here and abroad." 25 Upon these premises, the Presidential
Commission on Good Government was created, 26 "charged with the task of assisting
the President in regard to (certain specified) matters," among which was precisely-

* * The recovery of all in-gotten wealth accumulated by former

President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines
or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority,
influence, connections or relationship. 27

In relation to the takeover or sequestration that it was authorized to undertake in the

fulfillment of its mission, the PCGG was granted "power and authority" to do the
following particular acts, to wit:

1. To sequester or place or cause to be placed under its control or

possession any building or office wherein any ill-gotten wealth or
properties may be found, and any records pertaining thereto, in order
to prevent their destruction, concealment or disappearance which
would frustrate or hamper the investigation or otherwise prevent the
Commission from accomplishing its task.

2. To provisionally take over in the public interest or to prevent the

disposal or dissipation, business enterprises and properties taken over
by the government of the Marcos Administration or by entities or
persons close to former President Marcos, until the transactions
leading to such acquisition by the latter can be disposed of by the
appropriate authorities.

3. To enjoin or restrain any actual or threatened commission of acts by

any person or entity that may render moot and academic, or frustrate
 or otherwise make ineffectual the efforts of the Commission to carry
out its task under this order. 28

So that it might ascertain the facts germane to its objectives, it was granted power to
conduct investigations; require submission of evidence by subpoenae ad
testificandum and duces tecum; administer oaths; punish for contempt. 29It was given
power also to promulgate such rules and regulations as may be necessary to carry
out the purposes of * * (its creation). 30

c. Executive Order No. 2

Executive Order No. 2 gives additional and more specific data and directions
respecting "the recovery of ill-gotten properties amassed by the leaders and
supporters of the previous regime." It declares that:

1) * * the Government of the Philippines is in possession of evidence

showing that there are assets and properties purportedly pertaining to
former Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez
Marcos, their close relatives, subordinates, business associates,
dummies, agents or nominees which had been or were acquired by
them directly or indirectly, through or as a result of the improper or
illegal use of funds or properties owned by the government of the
Philippines or any of its branches, instrumentalities, enterprises, banks
or financial institutions, or by taking undue advantage of their office,
authority, influence, connections or relationship, resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino
people and the Republic of the Philippines:" and

2) * * said assets and properties are in the form of bank accounts,

deposits, trust accounts, shares of stocks, buildings, shopping centers,
condominiums, mansions, residences, estates, and other kinds of real
and personal properties in the Philippines and in various countries of
the world." 31

Upon these premises, the President-

1) froze "all assets and properties in the Philippines in which former

President Marcos and/or his wife, Mrs. Imelda Romualdez Marcos,
their close relatives, subordinates, business associates, dummies,
agents, or nominees have any interest or participation;

2) prohibited former President Ferdinand Marcos and/or his wife * *,

their close relatives, subordinates, business associates, duties, agents,
or nominees from transferring, conveying, encumbering, concealing or
dissipating said assets or properties in the Philippines and abroad,
pending the outcome of appropriate proceedings in the Philippines to
determine whether any such assets or properties were acquired by
them through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government of the Philippines or
any of its branches, instrumentalities, enterprises, banks or financial
institutions, or by taking undue advantage of their official position,
authority, relationship, connection or influence to unjustly enrich
themselves at the expense and to the grave damage and prejudice of
the Filipino people and the Republic of the Philippines;

3) prohibited "any person from transferring, conveying, encumbering or

otherwise depleting or concealing such assets and properties or from
 assisting or taking part in their transfer, encumbrance, concealment or
dissipation under pain of such penalties as are prescribed by law;" and

4) required "all persons in the Philippines holding such assets or

properties, whether located in the Philippines or abroad, in their names
as nominees, agents or trustees, to make full disclosure of the same to
the Commission on Good Government within thirty (30) days from
publication of * (the) Executive Order, * *. 32

d. Executive Order No. 14

A third executive order is relevant: Executive Order No. 14, 33 by which the PCGG is
empowered, "with the assistance of the Office of the Solicitor General and other
government agencies, * * to file and prosecute all cases investigated by it * * as may
be warranted by its findings." 34 All such cases, whether civil or criminal, are to be
filed "with the Sandiganbayan which shall have exclusive and original jurisdiction
thereof." 35 Executive Order No. 14 also pertinently provides that civil suits for
restitution, reparation of damages, or indemnification for consequential damages,
forfeiture proceedings provided for under Republic Act No. 1379, or any other civil
actions under the Civil Code or other existing laws, in connection with * * (said
Executive Orders Numbered 1 and 2) may be filed separately from and proceed
independently of any criminal proceedings and may be proved by a preponderance
of evidence;" and that, moreover, the "technical rules of procedure and evidence
shall not be strictly applied to* * (said)civil cases." 36

5. Contemplated Situations

The situations envisaged and sought to be governed are self-evident, these being:

1) that "(i)ll-gotten properties (were) amassed by the leaders and

supporters of the previous regime"; 37

a) more particularly, that ill-gotten wealth (was) accumulated by former

President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, * * located in the Philippines or
abroad, * * (and) business enterprises and entities (came to be) owned
or controlled by them, during * * (the Marcos) administration, directly or
through nominees, by taking undue advantage of their public office
and/or using their powers, authority, influence, Connections or
relationship; 38

b) otherwise stated, that "there are assets and properties purportedly

pertaining to former President Ferdinand E. Marcos, and/or his wife
Mrs. Imelda Romualdez Marcos, their close relatives, subordinates,
business associates, dummies, agents or nominees which had been or
were acquired by them directly or indirectly, through or as a result of
the improper or illegal use of funds or properties owned by the
Government of the Philippines or any of its branches, instrumentalities,
enterprises, banks or financial institutions, or by taking undue
advantage of their office, authority, influence, connections or
relationship, resulting in their unjust enrichment and causing grave
damage and prejudice to the Filipino people and the Republic of the
Philippines"; 39

c) that "said assets and properties are in the form of bank accounts.
deposits, trust. accounts, shares of stocks, buildings, shopping
centers, condominiums, mansions, residences, estates, and other
 kinds of real and personal properties in the Philippines and in various
countries of the world;" 40 and

2) that certain "business enterprises and properties (were) taken over

by the government of the Marcos Administration or by entities or
persons close to former President Marcos. 41

6. Government's Right and Duty to Recover All Ill-gotten Wealth

There can be no debate about the validity and eminent propriety of the
Government's plan "to recover all ill-gotten wealth."

Neither can there be any debate about the proposition that assuming the above
described factual premises of the Executive Orders and Proclamation No. 3 to be
true, to be demonstrable by competent evidence, the recovery from Marcos, his
family and his dominions of the assets and properties involved, is not only a right but
a duty on the part of Government.

But however plain and valid that right and duty may be, still a balance must be
sought with the equally compelling necessity that a proper respect be accorded and
adequate protection assured, the fundamental rights of private property and free
enterprise which are deemed pillars of a free society such as ours, and to which all
members of that society may without exception lay claim.

* * Democracy, as a way of life enshrined in the Constitution, embraces

as its necessary components freedom of conscience, freedom of
expression, and freedom in the pursuit of happiness. Along with these
freedoms are included economic freedom and freedom of
enterprise within reasonable bounds and under proper control. * *
Evincing much concern for the protection of property, the Constitution
distinctly recognizes the preferred position which real estate has
occupied in law for ages. Property is bound up with every aspect of
social life in a democracy as democracy is conceived in the
Constitution.The Constitution realizes the indispensable role which
property, owned in reasonable quantities and used legitimately, plays
in the stimulation to economic effort and the formation and growth of a
solid social middle class that is said to be the bulwark of democracy
and the backbone of every progressive and happy country. 42

a. Need of Evidentiary Substantiation in Proper Suit

Consequently, the factual premises of the Executive Orders cannot simply be

assumed. They will have to be duly established by adequate proof in each case, in a
proper judicial proceeding, so that the recovery of the ill-gotten wealth may be validly
and properly adjudged and consummated; although there are some who maintain
that the fact-that an immense fortune, and "vast resources of the government have
been amassed by former President Ferdinand E. Marcos, his immediate family,
relatives, and close associates both here and abroad," and they have resorted to all
sorts of clever schemes and manipulations to disguise and hide their illicit
acquisitions-is within the realm of judicial notice, being of so extensive notoriety as to
dispense with proof thereof, Be this as it may, the requirement of evidentiary
substantiation has been expressly acknowledged, and the procedure to be followed
explicitly laid down, in Executive Order No. 14.

b. Need of Provisional Measures to Collect and Conserve Assets

Pending Suits
Nor may it be gainsaid that pending the institution of the suits for the recovery of
such "ill-gotten wealth" as the evidence at hand may reveal, there is an obvious and
imperative need for preliminary, provisional measures to prevent the concealment,
disappearance, destruction, dissipation, or loss of the assets and properties subject
of the suits, or to restrain or foil acts that may render moot and academic, or
effectively hamper, delay, or negate efforts to recover the same.

7. Provisional Remedies Prescribed by Law

To answer this need, the law has prescribed three (3) provisional remedies. These
are: (1) sequestration; (2) freeze orders; and (3) provisional takeover.

Sequestration and freezing are remedies applicable generally to unearthed

instances of "ill-gotten wealth." The remedy of "provisional takeover" is peculiar to
cases where "business enterprises and properties (were) taken over by the
government of the Marcos Administration or by entities or persons close to former
President Marcos." 43

a. Sequestration

By the clear terms of the law, the power of the PCGG to sequester property claimed
to be "ill-gotten" means to place or cause to be placed under its possession or
control said property, or any building or office wherein any such property and any
records pertaining thereto may be found, including "business enterprises and
entities,"-for the purpose of preventing the destruction, concealment or dissipation
of, and otherwise conserving and preserving, the same-until it can be determined,
through appropriate judicial proceedings, whether the property was in truth will-
gotten," i.e., acquired through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or by taking undue
advantage of official position, authority relationship, connection or influence,
resulting in unjust enrichment of the ostensible owner and grave damage and
prejudice to the State. 44 And this, too, is the sense in which the term is commonly
understood in other jurisdictions. 45

b. "Freeze Order"

A "freeze order" prohibits the person having possession or control of property

alleged to constitute "ill-gotten wealth" "from transferring, conveying, encumbering or
otherwise depleting or concealing such property, or from assisting or taking part in
its transfer, encumbrance, concealment, or dissipation." 46 In other words, it
commands the possessor to hold the property and conserve it subject to the orders
and disposition of the authority decreeing such freezing. In this sense, it is akin to a
garnishment by which the possessor or ostensible owner of property is enjoined not
to deliver, transfer, or otherwise dispose of any effects or credits in his possession or
control, and thus becomes in a sense an involuntary depositary thereof. 47

c. Provisional Takeover

In providing for the remedy of "provisional takeover," the law acknowledges the
apparent distinction between "ill gotten" "business enterprises and entities" (going
concerns, businesses in actual operation), generally, as to which the remedy of
sequestration applies, it being necessarily inferred that the remedy entails no
interference, or the least possible interference with the actual management and
operations thereof; and "business enterprises which were taken over by the
government government of the Marcos Administration or by entities or persons close
to him," in particular, as to which a "provisional takeover" is authorized, "in the public
interest or to prevent disposal or dissipation of the enterprises." 48 Such a "provisional
takeover" imports something more than sequestration or freezing, more than the
placing of the business under physical possession and control, albeit without or with
the least possible interference with the management and carrying on of the business
itself. In a "provisional takeover," what is taken into custody is not only the physical
assets of the business enterprise or entity, but the business operation as well. It is in
fine the assumption of control not only over things, but over operations or on- going
activities. But, to repeat, such a "provisional takeover" is allowed only as regards
"business enterprises * * taken over by the government of the Marcos Administration
or by entities or persons close to former President Marcos."

d. No Divestment of Title Over Property Seized

It may perhaps be well at this point to stress once again the provisional, contingent
character of the remedies just described. Indeed the law plainly qualifies the remedy
of take-over by the adjective, "provisional." These remedies may be resorted to only
for a particular exigency: to prevent in the public interest the disappearance or
dissipation of property or business, and conserve it pending adjudgment in
appropriate proceedings of the primary issue of whether or not the acquisition of title
or other right thereto by the apparent owner was attended by some vitiating
anomaly. None of the remedies is meant to deprive the owner or possessor of his
title or any right to the property sequestered, frozen or taken over and vest it in the
sequestering agency, the Government or other person. This can be done only for the
causes and by the processes laid down by law.

That this is the sense in which the power to sequester, freeze or provisionally take
over is to be understood and exercised, the language of the executive orders in
question leaves no doubt. Executive Order No. 1 declares that the sequestration of
property the acquisition of which is suspect shall last "until the transactions leading
to such acquisition * * can be disposed of by the appropriate authorities." 49 Executive
Order No. 2 declares that the assets or properties therein mentioned shall remain
frozen "pending the outcome of appropriate proceedings in the Philippines to
determine whether any such assets or properties were acquired" by illegal
means. Executive Order No. 14 makes clear that judicial proceedings are essential
for the resolution of the basic issue of whether or not particular assets are "ill-
gotten," and resultant recovery thereof by the Government is warranted.

e. State of Seizure Not To Be Indefinitely Maintained; The

Constitutional Command

There is thus no cause for the apprehension voiced by BASECO 50 that

sequestration, freezing or provisional takeover is designed to be an end in itself, that
it is the device through which persons may be deprived of their property branded as
"ill-gotten," that it is intended to bring about a permanent, rather than a passing,
transitional state of affairs. That this is not so is quite explicitly declared by the
governing rules.

Be this as it may, the 1987 Constitution should allay any lingering fears about the
duration of these provisional remedies. Section 26 of its Transitory Provisions, 51 lays
down the relevant rule in plain terms, apart from extending ratification or
confirmation (although not really necessary) to the institution by presidential fiat of
the remedy of sequestration and freeze orders:

SEC. 26. The authority to issue sequestration or freeze orders under

Proclamation No. 3 dated March 25, 1986 in relation to the recovery of
ill-gotten wealth shag remain operative for not more than eighteen
months after the ratification of this Constitution. However, in the
 national interest, as certified by the President, the Congress may
extend said period.

A sequestration or freeze order shall be issued only upon showing of

a prima facie case. The order and the list of the sequestered or frozen
properties shall forthwith be registered with the proper court. For
orders issued before the ratification of this Constitution, the
corresponding judicial action or proceeding shall be filed within six
months from its ratification. For those issued after such ratification, the
judicial action or proceeding shall be commenced within six
months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no

judicial action or proceeding is commenced as herein provided. 52

f. Kinship to Attachment Receivership

As thus described, sequestration, freezing and provisional takeover are akin to the
provisional remedy of preliminary attachment, or receivership. 53 By attachment, a
sheriff seizes property of a defendant in a civil suit so that it may stand as security
for the satisfaction of any judgment that may be obtained, and not disposed of, or
dissipated, or lost intentionally or otherwise, pending the action. 54 By receivership,
property, real or personal, which is subject of litigation, is placed in the possession
and control of a receiver appointed by the Court, who shall conserve it pending final
determination of the title or right of possession over it. 55 All these remedies —
sequestration, freezing, provisional, takeover, attachment and receivership — are
provisional, temporary, designed for-particular exigencies, attended by no character
of permanency or finality, and always subject to the control of the issuing court or
agency.

g. Remedies, Non-Judicial

Parenthetically, that writs of sequestration or freeze or takeover orders are not

issued by a court is of no moment. The Solicitor General draws attention to the writ
of distraint and levy which since 1936 the Commissioner of Internal Revenue has
been by law authorized to issue against property of a delinquent
taxpayer. 56 BASECO itself declares that it has not manifested "a rigid insistence on
sequestration as a purely judicial remedy * * (as it feels) that the law should not be
ossified to a point that makes it insensitive to change." What it insists on, what it
pronounces to be its "unyielding position, is that any change in procedure, or the
institution of a new one, should conform to due process and the other prescriptions
of the Bill of Rights of the Constitution." 57 It is, to be sure, a proposition on which
there can be no disagreement.

h. Orders May Issue Ex Parte

Like the remedy of preliminary attachment and receivership, as well as delivery of

personal property in replevin suits, sequestration and provisional takeover writs may
issue ex parte. 58 And as in preliminary attachment, receivership, and delivery of
personality, no objection of any significance may be raised to the ex parte issuance
of an order of sequestration, freezing or takeover, given its fundamental character of
temporariness or conditionality; and taking account specially of the constitutionally
expressed "mandate of the people to recover ill-gotten properties amassed by the
leaders and supporters of the previous regime and protect the interest of the
people;" 59 as well as the obvious need to avoid alerting suspected possessors of "ill-
gotten wealth" and thereby cause that disappearance or loss of property precisely
sought to be prevented, and the fact, just as self-evident, that "any transfer,
disposition, concealment or disappearance of said assets and properties would
frustrate, obstruct or hamper the efforts of the Government" at the just recovery
thereof. 60

8. Requisites for Validity

What is indispensable is that, again as in the case of attachment and receivership,

there exist a prima facie factual foundation, at least, for the sequestration, freeze or
takeover order, and adequate and fair opportunity to contest it and endeavor to
cause its negation or nullification. 61

Both are assured under the executive orders in question and the rules and
regulations promulgated by the PCGG.

a. Prima Facie Evidence as Basis for Orders

Executive Order No. 14 enjoins that there be "due regard to the requirements of
fairness and due process." 62Executive Order No. 2 declares that with respect to
claims on allegedly "ill-gotten" assets and properties, "it is the position of the new
democratic government that President Marcos * * (and other parties affected) be
afforded fair opportunity to contest these claims before appropriate Philippine
authorities." 63 Section 7 of the Commission's Rules and Regulations provides that
sequestration or freeze (and takeover) orders issue upon the authority of at least two
commissioners, based on the affirmation or complaint of an interested party, or motu
proprio when the Commission has reasonable grounds to believe that the issuance
thereof is warranted. 64 A similar requirement is now found in Section 26, Art. XVIII of
the 1987 Constitution, which requires that a "sequestration or freeze order shall be
issued only upon showing of a prima facie case." 65

b. Opportunity to Contest

And Sections 5 and 6 of the same Rules and Regulations lay down the procedure by
which a party may seek to set aside a writ of sequestration or freeze order, viz:

SECTION 5. Who may contend.-The person against whom a writ of

sequestration or freeze or hold order is directed may request the lifting
thereof in writing, either personally or through counsel within five (5)
days from receipt of the writ or order, or in the case of a hold order,
from date of knowledge thereof.

SECTION 6. Procedure for review of writ or order.-After due hearing or

motu proprio for good cause shown, the Commission may lift the writ
or order unconditionally or subject to such conditions as it may deem
necessary, taking into consideration the evidence and the
circumstance of the case. The resolution of the commission may be
appealed by the party concerned to the Office of the President of the
Philippines within fifteen (15) days from receipt thereof.

Parenthetically, even if the requirement for a prima facie showing of "ill- gotten
wealth" were not expressly imposed by some rule or regulation as a condition to
warrant the sequestration or freezing of property contemplated in the executive
orders in question, it would nevertheless be exigible in this jurisdiction in which the
Rule of Law prevails and official acts which are devoid of rational basis in fact or law,
or are whimsical and capricious, are condemned and struck down. 66

9. Constitutional Sanction of Remedies

If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG to
issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or "Freedom" Constitution recognizes the power and duty
of the President to enact "measures to achieve the mandate of the people to * * *
(recover ill- gotten properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of sequestration or
freezing of assets or accounts." And as also already adverted to, Section 26, Article
XVIII of the 1987 Constitution 67 treats of, and ratifies the "authority to issue
sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986."

The institution of these provisional remedies is also premised upon the State's
inherent police power, regarded, as t lie power of promoting the public welfare by
restraining and regulating the use of liberty and property," 68 and as "the most
essential, insistent and illimitable of powers * * in the promotion of general welfare
and the public interest," 69and said to be co-extensive with self-protection and * * not
inaptly termed (also) the'law of overruling necessity." "70

10. PCGG not a "Judge"; General Functions

It should also by now be reasonably evident from what has thus far been said that
the PCGG is not, and was never intended to act as, a judge. Its general function is to
conduct investigations in order to collect evidence establishing instances of "ill-
gotten wealth;" issue sequestration, and such orders as may be warranted by the
evidence thus collected and as may be necessary to preserve and conserve the
assets of which it takes custody and control and prevent their disappearance, loss or
dissipation; and eventually file and prosecute in the proper court of competent
jurisdiction all cases investigated by it as may be warranted by its findings. It does
not try and decide, or hear and determine, or adjudicate with any character of finality
or compulsion, cases involving the essential issue of whether or not property should
be forfeited and transferred to the State because "ill-gotten" within the meaning of
the Constitution and the executive orders. This function is reserved to the
designated court, in this case, the Sandiganbayan. 71 There can therefore be no
serious regard accorded to the accusation, leveled by BASECO, 72that the PCGG
plays the perfidious role of prosecutor and judge at the same time.

11. Facts Preclude Grant of Relief to Petitioner

Upon these premises and reasoned conclusions, and upon the facts disclosed by
the record, hereafter to be discussed, the petition cannot succeed. The writs of
certiorari and prohibition prayed for will not be issued.

The facts show that the corporation known as BASECO was owned or controlled by
President Marcos "during his administration, through nominees, by taking undue
advantage of his public office and/or using his powers, authority, or influence, " and
that it was by and through the same means, that BASECO had taken over the
business and/or assets of the National Shipyard and Engineering Co., Inc., and
other government-owned or controlled entities.

12. Organization and Stock Distribution of BASECO

BASECO describes itself in its petition as "a shiprepair and shipbuilding company * *
incorporated as a domestic private corporation * * (on Aug. 30, 1972) by a
consortium of Filipino shipowners and shipping executives. Its main office is at
Engineer Island, Port Area, Manila, where its Engineer Island Shipyard is housed,
and its main shipyard is located at Mariveles Bataan." 73 Its Articles of Incorporation
disclose that its authorized capital stock is P60,000,000.00 divided into 60,000
shares, of which 12,000 shares with a value of P12,000,000.00 have been
subscribed, and on said subscription, the aggregate sum of P3,035,000.00 has been
paid by the incorporators. 74The same articles Identify the incorporators, numbering
fifteen (15), as follows: (1) Jose A. Rojas, (2) Anthony P. Lee, (3) Eduardo T.
Marcelo, (4) Jose P. Fernandez, (5) Generoso Tanseco, (6) Emilio T. Yap, (7)
Antonio M. Ezpeleta, (8) Zacarias Amante, (9) Severino de la Cruz, (10) Jose
Francisco, (11) Dioscoro Papa, (12) Octavio Posadas, (13) Manuel S. Mendoza,
(14) Magiliw Torres, and (15) Rodolfo Torres.

By 1986, however, of these fifteen (15) incorporators, six (6) had ceased to be
stockholders, namely: (1) Generoso Tanseco, (2) Antonio Ezpeleta, (3) Zacarias
Amante, (4) Octavio Posadas, (5) Magiliw Torres, and (6) Rodolfo Torres. As of this
year, 1986, there were twenty (20) stockholders listed in BASECO's Stock and
Transfer Book. 75Their names and the number of shares respectively held by them
are as follows:

1. Jose A. Rojas
1,248
shares

2. Severino G. 1,248
de la Cruz shares

3. Emilio T. Yap 2,508

shares

4. Jose 1,248
Fernandez shares

5. Jose 128 shares

Francisco

6. Manuel S. 96 shares
Mendoza

7. Anthony P. 1,248
Lee shares

8. Hilario M. 32 shares
Ruiz

9. Constante L. 8 shares
Fariñas

10. Fidelity 65,882

Management, shares
Inc.

11. Trident 7,412

Management shares

12. United Phil. 1,240

Lines shares

13. Renato M. 8 shares

Tanseco

14. Fidel 8 shares

Ventura
 15. Metro Bay 136,370
Drydock shares

16. Manuel 1 share

Jacela

17. Jonathan G. 1 share

Lu

18. Jose J. 1 share

Tanchanco

19. Dioscoro 128 shares

Papa

20. Edward T. 4 shares

Marcelo

TOTAL 218,819
shares.

13 Acquisition of NASSCO by BASECO

Barely six months after its incorporation, BASECO acquired from National Shipyard
& Steel Corporation, or NASSCO, a government-owned or controlled corporation,
the latter's shipyard at Mariveles, Bataan, known as the Bataan National Shipyard
(BNS), and — except for NASSCO's Engineer Island Shops and certain equipment
of the BNS, consigned for future negotiation — all its structures, buildings, shops,
quarters, houses, plants, equipment and facilities, in stock or in transit. This it did in
virtue of a "Contract of Purchase and Sale with Chattel Mortgage" executed on
February 13, 1973. The price was P52,000,000.00. As partial payment thereof,
BASECO delivered to NASSCO a cash bond of P11,400,000.00, convertible into
cash within twenty-four (24) hours from completion of the inventory undertaken
pursuant to the contract. The balance of P41,600,000.00, with interest at seven
percent (7%) per annum, compounded semi-annually, was stipulated to be paid in
equal semi-annual installments over a term of nine (9) years, payment to commence
after a grace period of two (2) years from date of turnover of the shipyard to
BASECO. 76

14. Subsequent Reduction of Price; Intervention of Marcos

Unaccountably, the price of P52,000,000.00 was reduced by more than one-half, to

P24,311,550.00, about eight (8) months later. A document to this effect was
executed on October 9, 1973, entitled "Memorandum Agreement," and was signed
for NASSCO by Arturo Pacificador, as Presiding Officer of the Board of Directors,
and David R. Ines, as General Manager. 77 This agreement bore, at the top right
corner of the first page, the word "APPROVED" in the handwriting of President
Marcos, followed by his usual full signature. The document recited that a down
payment of P5,862,310.00 had been made by BASECO, and the balance of
P19,449,240.00 was payable in equal semi-annual installments over nine (9) years
after a grace period of two (2) years, with interest at 7% per annum.

15. Acquisition of 300 Hectares from Export Processing Zone Authority

On October 1, 1974, BASECO acquired three hundred (300) hectares of land in

Mariveles from the Export Processing Zone Authority for the price of P10,047,940.00
of which, as set out in the document of sale, P2,000.000.00 was paid upon its
execution, and the balance stipulated to be payable in installments. 78

16. Acquisition of Other Assets of NASSCO; Intervention of Marcos

Some nine months afterwards, or on July 15, 1975, to be precise, BASECO, again
with the intervention of President Marcos, acquired ownership of the rest of the
assets of NASSCO which had not been included in the first two (2) purchase
documents. This was accomplished by a deed entitled "Contract of Purchase and
Sale," 79 which, like the Memorandum of Agreement dated October 9,
1973 supra also bore at the upper right-hand corner of its first page, the handwritten
notation of President Marcos reading, "APPROVED, July 29, 1973," and underneath
it, his usual full signature. Transferred to BASECO were NASSCO's "ownership and
all its titles, rights and interests over all equipment and facilities including structures,
buildings, shops, quarters, houses, plants and expendable or semi-expendable
assets, located at the Engineer Island, known as the Engineer Island Shops,
including all the equipment of the Bataan National Shipyards (BNS) which were
excluded from the sale of NBS to BASECO but retained by BASECO and all other
selected equipment and machineries of NASSCO at J. Panganiban Smelting Plant."
In the same deed, NASSCO committed itself to cooperate with BASECO for the
acquisition from the National Government or other appropriate Government entity of
Engineer Island. Consideration for the sale was set at P5,000,000.00; a down
payment of P1,000,000.00 appears to have been made, and the balance was
stipulated to be paid at 7% interest per annum in equal semi annual installments
over a term of nine (9) years, to commence after a grace period of two (2) years. Mr.
Arturo Pacificador again signed for NASSCO, together with the general manager,
Mr. David R. Ines.

17. Loans Obtained

It further appears that on May 27, 1975 BASECO obtained a loan from the NDC,
taken from "the last available Japanese war damage fund of $19,000,000.00," to pay
for "Japanese made heavy equipment (brand new)." 80 On September 3, 1975, it got
another loan also from the NDC in the amount of P30,000,000.00 (id.). And on
January 28, 1976, it got still another loan, this time from the GSIS, in the sum of
P12,400,000.00. 81 The claim has been made that not a single centavo has been
paid on these loans. 82

18. Reports to President Marcos

In September, 1977, two (2) reports were submitted to President Marcos regarding
BASECO. The first was contained in a letter dated September 5, 1977 of Hilario M.
Ruiz, BASECO president. 83 The second was embodied in a confidential
memorandum dated September 16, 1977 of Capt. A.T. Romualdez. 84 They further
disclose the fine hand of Marcos in the affairs of BASECO, and that of a Romualdez,
a relative by affinity.

a. BASECO President's Report

In his letter of September 5, 1977, BASECO President Ruiz reported to Marcos that
there had been "no orders or demands for ship construction" for some time and
expressed the fear that if that state of affairs persisted, BASECO would not be able
to pay its debts to the Government, which at the time stood at the not inconsiderable
amount of P165,854,000.00. 85 He suggested that, to "save the situation," there be
a "spin-off (of their) shipbuilding activities which shall be handled exclusively by an
entirely new corporation to be created;" and towards this end, he informed Marcos
that BASECO was —
 * * inviting NDC and LUSTEVECO to participate by converting the
NDC shipbuilding loan to BASECO amounting to P341.165M and
assuming and converting a portion of BASECO's shipbuilding loans
from REPACOM amounting to P52.2M or a total of P83.365M as
NDC's equity contribution in the new corporation. LUSTEVECO will
participate by absorbing and converting a portion of the REPACOM
loan of Bay Shipyard and Drydock, Inc., amounting to P32.538M. 86

b. Romualdez' Report

Capt. A.T. Romualdez' report to the President was submitted eleven (11) days later.
It opened with the following caption:

MEMORANDUM:

FOR : The President

SUBJECT: An Evaluation and Re-assessment of a Performance of a

Mission

FROM: Capt. A.T. Romualdez.

Like Ruiz, Romualdez wrote that BASECO faced great difficulties in meeting its loan
obligations due chiefly to the fact that "orders to build ships as expected * * did not
materialize."

He advised that five stockholders had "waived and/or assigned their holdings
inblank," these being: (1) Jose A. Rojas, (2) Severino de la Cruz, (3) Rodolfo Torres,
(4) Magiliw Torres, and (5) Anthony P. Lee. Pointing out that "Mr. Magiliw Torres * *
is already dead and Mr. Jose A. Rojas had a major heart attack," he made the
following quite revealing, and it may be added, quite cynical and indurate
recommendation, to wit:

* * (that) their replacements (be effected) so we can register their

names in the stock book prior to the implementation of your
instructions to pass a board resolution to legalize the transfers under
SEC regulations;

2. By getting their replacements, the families cannot question us later

on; and

3. We will owe no further favors from them. 87

He also transmitted to Marcos, together with the report, the following documents: 88

1. Stock certificates indorsed and assigned in blank with assignments

and waivers; 89

2. The articles of incorporation, the amended articles, and the by-laws

of BASECO;

3. Deed of Sales, wherein NASSCO sold to BASECO four (4) parcels

of land in "Engineer Island", Port Area, Manila;

4. Transfer Certificate of Title No. 124822 in the name of BASECO,

covering "Engineer Island";
 5. Contract dated October 9, 1973, between NASSCO and BASECO
re-structure and equipment at Mariveles, Bataan;

6. Contract dated July 16, 1975, between NASSCO and BASECO re-
structure and equipment at Engineer Island, Port Area Manila;

7. Contract dated October 1, 1974, between EPZA and BASECO re

300 hectares of land at Mariveles, Bataan;

8. List of BASECO's fixed assets;

9. Loan Agreement dated September 3, 1975, BASECO's loan from

NDC of P30,000,000.00;

10. BASECO-REPACOM Agreement dated May 27, 1975;

11. GSIS loan to BASECO dated January 28, 1976 of P12,400,000.00

for the housing facilities for BASECO's rank-and-file employees. 90

Capt. Romualdez also recommended that BASECO's loans be restructured "until

such period when BASECO will have enough orders for ships in order for the
company to meet loan obligations," and that —

An LOI may be issued to government agencies using floating

equipment, that a linkage scheme be applied to a certain percent of
BASECO's net profit as part of BASECO's amortization payments
to make it justifiable for you, Sir. 91

It is noteworthy that Capt. A.T. Romualdez does not appear to be a stockholder or

officer of BASECO, yet he has presented a report on BASECO to President Marcos,
and his report demonstrates intimate familiarity with the firm's affairs and problems.

19. Marcos' Response to Reports

President Marcos lost no time in acting on his subordinates' recommendations,

particularly as regards the "spin-off" and the "linkage scheme" relative to "BASECO's
amortization payments."

a. Instructions re "Spin-Off"

Under date of September 28, 1977, he addressed a Memorandum to Secretary

Geronimo Velasco of the Philippine National Oil Company and Chairman Constante
Fariñas of the National Development Company, directing them "to participate in the
formation of a new corporation resulting from the spin-off of the shipbuilding
component of BASECO along the following guidelines:

a. Equity participation of government shall be through LUSTEVECO

and NDC in the amount of P115,903,000 consisting of the
following obligations of BASECO which are hereby authorized to be
converted to equity of the said new corporation, to wit:

1. NDC P83,865,000 (P31.165M loan & P52.2M

Reparation)

2. LUSTEVECO P32,538,000 (Reparation)

 b. Equity participation of government shall be in the form of non- voting
shares.

For immediate compliance. 92

Mr. Marcos' guidelines were promptly complied with by his subordinates. Twenty-two
(22) days after receiving their president's memorandum, Messrs. Hilario M. Ruiz,
Constante L. Fariñas and Geronimo Z. Velasco, in representation of their respective
corporations, executed a PRE-INCORPORATION AGREEMENT dated October 20,
1977. 93 In it, they undertook to form a shipbuilding corporation to be known as
"PHIL-ASIA SHIPBUILDING CORPORATION," to bring to realization their
president's instructions. It would seem that the new corporation ultimately formed
was actually named "Philippine Dockyard Corporation (PDC)." 94

b. Letter of Instructions No. 670

Mr. Marcos did not forget Capt. Romualdez' recommendation for a letter of
instructions. On February 14, 1978, he issued Letter of Instructions No. 670
addressed to the Reparations Commission REPACOM the Philippine National Oil
Company (PNOC), the Luzon Stevedoring Company (LUSTEVECO), and the
National Development Company (NDC). What is commanded therein is summarized
by the Solicitor General, with pithy and not inaccurate observations as to the effects
thereof (in italics), as follows:

* * 1) the shipbuilding equipment procured by BASECO through

reparations be transferred to NDC subject to reimbursement by NDC to
BASECO (of) the amount of s allegedly representing the handling and
incidental expenses incurred by BASECO in the installation of said
equipment (so instead of NDC getting paid on its loan to BASECO, it
was made to pay BASECO instead the amount of P18.285M); 2) the
shipbuilding equipment procured from reparations through EPZA, now
in the possession of BASECO and BSDI (Bay Shipyard & Drydocking,
Inc.) be transferred to LUSTEVECO through PNOC; and 3) the
shipbuilding equipment (thus) transferred be invested by
LUSTEVECO, acting through PNOC and NDC, as the government's
equity participation in a shipbuilding corporation to be established in
partnership with the private sector.

xxx xxx xxx

And so, through a simple letter of instruction and memorandum,

BASECO's loan obligation to NDC and REPACOM * * in the total
amount of P83.365M and BSD's REPACOM loan of P32.438M were
wiped out and converted into non-voting preferred shares. 95

20. Evidence of Marcos'

Ownership of BASECO

It cannot therefore be gainsaid that, in the context of the proceedings at bar, the
actuality of the control by President Marcos of BASECO has been sufficiently shown.

Other evidence submitted to the Court by the Solicitor General proves that President
Marcos not only exercised control over BASECO, but also that he actually owns well
nigh one hundred percent of its outstanding stock.
It will be recalled that according to petitioner- itself, as of April 23, 1986, there were
218,819 shares of stock outstanding, ostensibly owned by twenty (20)
stockholders. 96 Four of these twenty are juridical persons: (1) Metro Bay
Drydock, recorded as holding 136,370 shares; (2) Fidelity Management, Inc., 65,882
shares; (3) Trident Management, 7,412 shares; and (4) United Phil. Lines, 1,240
shares. The first three corporations, among themselves, own an aggregate of
209,664 shares of BASECO stock, or 95.82% of the outstanding stock.

Now, the Solicitor General has drawn the Court's attention to the intriguing
circumstance that found in Malacanang shortly after the sudden flight of President
Marcos, were certificates corresponding to more than ninety-five percent (95%) of all
the outstanding shares of stock of BASECO, endorsed in blank, together with deeds
of assignment of practically all the outstanding shares of stock of the three (3)
corporations above mentioned (which hold 95.82% of all BASECO stock), signed by
the owners thereof although not notarized. 97

More specifically, found in Malacanang (and now in the custody of the PCGG) were:

1) the deeds of assignment of all 600 outstanding shares of Fidelity

Management Inc. — which supposedly owns as aforesaid 65,882
shares of BASECO stock;

2) the deeds of assignment of 2,499,995 of the 2,500,000 outstanding

shares of Metro Bay Drydock Corporation — which allegedly owns
136,370 shares of BASECO stock;

3) the deeds of assignment of 800 outstanding shares of Trident

Management Co., Inc. — which allegedly owns 7,412 shares of
BASECO stock, assigned in blank; 98 and

4) stock certificates corresponding to 207,725 out of the 218,819

outstanding shares of BASECO stock; that is, all but 5 % — all
endorsed in blank. 99

While the petitioner's counsel was quick to dispute this asserted fact, assuring this
Court that the BASECO stockholders were still in possession of their respective
stock certificates and had "never endorsed * * them in blank or to anyone
else," 100 that denial is exposed by his own prior and subsequent recorded statements as a mere gesture of defiance rather than a
verifiable factual declaration.

By resolution dated September 25, 1986, this Court granted BASECO's counsel a
period of 10 days "to SUBMIT, as undertaken by him, * * the certificates of stock
issued to the stockholders of * * BASECO as of April 23, 1986, as listed in Annex 'P'
of the petition.' 101 Counsel thereafter moved for extension; and in his motion dated October 2, 1986, he declared inter
alia that "said certificates of stock are in the possession of third parties, among whom being the respondents themselves * *
and petitioner is still endeavoring to secure copies thereof from them." 102 On the same day he filed another motion praying that he be
allowed "to secure copies of the Certificates of Stock in the name of Metro Bay Drydock, Inc., and of all other Certificates, of Stock of
petitioner's stockholders in possession of respondents." 103

In a Manifestation dated October 10, 1986,, 104 the Solicitor General not unreasonably argued that counsel's aforestated motion to
secure copies of the stock certificates "confirms the fact that stockholders of petitioner corporation are not in possession of * * (their)
certificates of stock," and the reason, according to him, was "that 95% of said shares * * have been endorsed in blank and found in
Malacañang after the former President and his family fled the country." To this manifestation BASECO's counsel replied on November
5, 1986, as already mentioned, Stubbornly insisting that the firm's stockholders had not really assigned their stock. 105

In view of the parties' conflicting declarations, this Court resolved on November 27, 1986 among other things "to require * * the
petitioner * * to deposit upon proper receipt with Clerk of Court Juanito Ranjo the originals of the stock certificates alleged to be in its
possession or accessible to it, mentioned and described in Annex 'P' of its petition, (and other pleadings) * * within ten (10) days from
notice." 106 In a motion filed on December 5, 1986, 107 BASECO's counsel made the statement, quite surprising in the premises, that
"it will negotiate with the owners (of the BASECO stock in question) to allow petitioner to borrow from them, if available, the certificates
referred to" but that "it needs a more sufficient time therefor" (sic). BASECO's counsel however eventually had to confess inability to
produce the originals of the stock certificates, putting up the feeble excuse that while he had "requested the stockholders to allow * *
(him) to borrow said certificates, * * some of * * (them) claimed that they had delivered the certificates to third parties by way of pledge
and/or to secure performance of obligations, while others allegedly have entrusted them to third parties in view of last national
emergency." 108 He has conveniently omitted, nor has he offered to give the details of the transactions adverted to by him, or to
explain why he had not impressed on the supposed stockholders the primordial importance of convincing this Court of their present
custody of the originals of the stock, or if he had done so, why the stockholders are unwilling to agree to some sort of arrangement so
that the originals of their certificates might at the very least be exhibited to the Court. Under the circumstances, the Court can only
conclude that he could not get the originals from the stockholders for the simple reason that, as the Solicitor General maintains, said
stockholders in truth no longer have them in their possession, these having already been assigned in blank to then President Marcos.

21. Facts Justify Issuance of Sequestration and Takeover Orders

In the light of the affirmative showing by the Government that, prima facie at least,
the stockholders and directors of BASECO as of April, 1986 109 were mere "dummies," nominees
or alter egos of President Marcos; at any rate, that they are no longer owners of any shares of stock in the corporation, the conclusion
cannot be avoided that said stockholders and directors have no basis and no standing whatever to cause the filing and prosecution of
the instant proceeding; and to grant relief to BASECO, as prayed for in the petition, would in effect be to restore the assets, properties
and business sequestered and taken over by the PCGG to persons who are "dummies," nominees or alter egos of the former president.

From the standpoint of the PCGG, the facts herein stated at some length do indeed
show that the private corporation known as BASECO was "owned or controlled by
former President Ferdinand E. Marcos * * during his administration, * * through
nominees, by taking advantage of * * (his) public office and/or using * * (his) powers,
authority, influence * *," and that NASSCO and other property of the government had
been taken over by BASECO; and the situation justified the sequestration as well as
the provisional takeover of the corporation in the public interest, in accordance with
the terms of Executive Orders No. 1 and 2, pending the filing of the requisite actions
with the Sandiganbayan to cause divestment of title thereto from Marcos, and its
adjudication in favor of the Republic pursuant to Executive Order No. 14.

As already earlier stated, this Court agrees that this assessment of the facts is
correct; accordingly, it sustains the acts of sequestration and takeover by the PCGG
as being in accord with the law, and, in view of what has thus far been set out in this
opinion, pronounces to be without merit the theory that said acts, and the executive
orders pursuant to which they were done, are fatally defective in not according to the
parties affected prior notice and hearing, or an adequate remedy to impugn, set
aside or otherwise obtain relief therefrom, or that the PCGG had acted as prosecutor
and judge at the same time.

22. Executive Orders Not a Bill of Attainder

Neither will this Court sustain the theory that the executive orders in question are a
bill of attainder. 110 "A bill of attainder is a legislative act which inflicts punishment without judicial trial." 111 "Its essence is
the substitution of a legislative for a judicial determination of guilt." 112

In the first place, nothing in the executive orders can be reasonably construed as a determination or declaration of guilt. On the
contrary, the executive orders, inclusive of Executive Order No. 14, make it perfectly clear that any judgment of guilt in the amassing or
acquisition of "ill-gotten wealth" is to be handed down by a judicial tribunal, in this case, the Sandiganbayan, upon complaint filed and
prosecuted by the PCGG. In the second place, no punishment is inflicted by the executive orders, as the merest glance at their
provisions will immediately make apparent. In no sense, therefore, may the executive orders be regarded as a bill of attainder.

23. No Violation of Right against Self-Incrimination and Unreasonable Searches and

Seizures

BASECO also contends that its right against self incrimination and unreasonable
searches and seizures had been transgressed by the Order of April 18, 1986 which
required it "to produce corporate records from 1973 to 1986 under pain of contempt
of the Commission if it fails to do so." The order was issued upon the authority of
Section 3 (e) of Executive Order No. 1, treating of the PCGG's power to "issue
subpoenas requiring * * the production of such books, papers, contracts, records,
statements of accounts and other documents as may be material to the investigation
conducted by the Commission, " and paragraph (3), Executive Order No. 2 dealing
with its power to "require all persons in the Philippines holding * * (alleged "ill-
gotten") assets or properties, whether located in the Philippines or abroad, in their
names as nominees, agents or trustees, to make full disclosure of the same * *." The
contention lacks merit.
It is elementary that the right against self-incrimination has no application to juridical
persons.

While an individual may lawfully refuse to answer incriminating

questions unless protected by an immunity statute, it does not follow
that a corporation, vested with special privileges and franchises, may
refuse to show its hand when charged with an abuse ofsuchprivileges *
* 113
Relevant jurisprudence is also cited by the Solicitor General. 114

* * corporations are not entitled to all of the constitutional protections

which private individuals have. * * They are not at all within the
privilege against self-incrimination, although this court more than once
has said that the privilege runs very closely with the 4th Amendment's
Search and Seizure provisions. It is also settled that an officer of the
company cannot refuse to produce its records in its possession upon
the plea that they will either incriminate him or may incriminate
it." (Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186;
emphasis, the Solicitor General's).

* * The corporation is a creature of the state. It is presumed to be

incorporated for the benefit of the public. It received certain special
privileges and franchises, and holds them subject to the laws of the
state and the limitations of its charter. Its powers are limited by law. It
can make no contract not authorized by its charter. Its rights to act as a
corporation are only preserved to it so long as it obeys the laws of its
creation. There is a reserve right in the legislature to investigate its
contracts and find out whether it has exceeded its powers. It would be
a strange anomaly to hold that a state, having chartered a corporation
to make use of certain franchises, could not, in the exercise of
sovereignty, inquire how these franchises had been employed, and
whether they had been abused, and demand the production of the
corporate books and papers for that purpose. The defense amounts to
this, that an officer of the corporation which is charged with a criminal
violation of the statute may plead the criminality of such corporation as
a refusal to produce its books. To state this proposition is to answer
it. While an individual may lawfully refuse to answer incriminating
questions unless protected by an immunity statute, it does not follow
that a corporation, vested with special privileges and franchises may
refuse to show its hand when charged with an abuse of such
privileges. (Wilson v. United States, 55 Law Ed., 771, 780 [emphasis,
the Solicitor General's])

At any rate, Executive Order No. 14-A, amending Section 4 of Executive Order No.
14 assures protection to individuals required to produce evidence before the PCGG
against any possible violation of his right against self-incrimination. It gives them
immunity from prosecution on the basis of testimony or information he is compelled
to present. As amended, said Section 4 now provides that —

xxx xxx xxx

The witness may not refuse to comply with the order on the basis of his
privilege against self-incrimination; but no testimony or other
information compelled under the order (or any information directly or
indirectly derived from such testimony, or other information) may be
used against the witness in any criminal case, except a prosecution for
 perjury, giving a false statement, or otherwise failing to comply with the
order.

The constitutional safeguard against unreasonable searches and seizures finds no

application to the case at bar either. There has been no search undertaken by any
agent or representative of the PCGG, and of course no seizure on the occasion
thereof.

24. Scope and Extent of Powers of the PCGG

One other question remains to be disposed of, that respecting the scope and extent
of the powers that may be wielded by the PCGG with regard to the properties or
businesses placed under sequestration or provisionally taken over. Obviously, it is
not a question to which an answer can be easily given, much less one which will
suffice for every conceivable situation.

a. PCGG May Not Exercise Acts of Ownership

One thing is certain, and should be stated at the outset: the PCGG cannot exercise
acts of dominion over property sequestered, frozen or provisionally taken over. AS
already earlier stressed with no little insistence, the act of sequestration; freezing or
provisional takeover of property does not import or bring about a divestment of title
over said property; does not make the PCGG the owner thereof. In relation to the
property sequestered, frozen or provisionally taken over, the PCGG is a conservator,
not an owner. Therefore, it can not perform acts of strict ownership; and this is
specially true in the situations contemplated by the sequestration rules where, unlike
cases of receivership, for example, no court exercises effective supervision or can
upon due application and hearing, grant authority for the performance of acts of
dominion.

Equally evident is that the resort to the provisional remedies in question should entail
the least possible interference with business operations or activities so that, in the
event that the accusation of the business enterprise being "ill gotten" be not proven,
it may be returned to its rightful owner as far as possible in the same condition as it
was at the time of sequestration.

b. PCGG Has Only Powers of Administration

The PCGG may thus exercise only powers of administration over the property or
business sequestered or provisionally taken over, much like a court-appointed
receiver, 115 such as to bring and defend actions in its own name; receive rents; collect debts due; pay outstanding debts; and
generally do such other acts and things as may be necessary to fulfill its mission as conservator and administrator. In this context, it
may in addition enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and
academic, or frustrate or otherwise make ineffectual its efforts to carry out its task; punish for direct or indirect contempt in accordance
with the Rules of Court; and seek and secure the assistance of any office, agency or instrumentality of the government. 116 In the case
of sequestered businesses generally (i.e., going concerns, businesses in current operation), as in the case of sequestered objects, its
essential role, as already discussed, is that of conservator, caretaker, "watchdog" or overseer. It is not that of manager, or innovator,
much less an owner.

c. Powers over Business Enterprises Taken Over by Marcos or Entities

or Persons Close to him; Limitations Thereon

Now, in the special instance of a business enterprise shown by evidence to have

been "taken over by the government of the Marcos Administration or by entities or
persons close to former President Marcos," 117 the PCGG is given power and authority, as already adverted
to, to "provisionally take (it) over in the public interest or to prevent * * (its) disposal or dissipation;" and since the term is obviously
employed in reference to going concerns, or business enterprises in operation, something more than mere physical custody is
connoted; the PCGG may in this case exercise some measure of control in the operation, running, or management of the business
itself. But even in this special situation, the intrusion into management should be restricted to the minimum degree necessary to
accomplish the legislative will, which is "to prevent the disposal or dissipation" of the business enterprise. There should be no hasty,
indiscriminate, unreasoned replacement or substitution of management officials or change of policies, particularly in respect of viable
establishments. In fact, such a replacement or substitution should be avoided if at all possible, and undertaken only when justified by
demonstrably tenable grounds and in line with the stated objectives of the PCGG. And it goes without saying that where replacement of
management officers may be called for, the greatest prudence, circumspection, care and attention - should accompany that undertaking
to the end that truly competent, experienced and honest managers may be recruited. There should be no role to be played in this area
by rank amateurs, no matter how wen meaning. The road to hell, it has been said, is paved with good intentions. The business is not to
be experimented or played around with, not run into the ground, not driven to bankruptcy, not fleeced, not ruined. Sight should never be
lost sight of the ultimate objective of the whole exercise, which is to turn over the business to the Republic, once judicially established to
be "ill-gotten." Reason dictates that it is only under these conditions and circumstances that the supervision, administration and control
of business enterprises provisionally taken over may legitimately be exercised.

d. Voting of Sequestered Stock; Conditions Therefor

So, too, it is within the parameters of these conditions and circumstances that the
PCGG may properly exercise the prerogative to vote sequestered stock of
corporations, granted to it by the President of the Philippines through a
Memorandum dated June 26, 1986. That Memorandum authorizes the PCGG,
"pending the outcome of proceedings to determine the ownership of * *
(sequestered) shares of stock," "to vote such shares of stock as it may have
sequestered in corporations at all stockholders' meetings called for the election of
directors, declaration of dividends, amendment of the Articles of Incorporation, etc."
The Memorandum should be construed in such a manner as to be consistent with,
and not contradictory of the Executive Orders earlier promulgated on the same
matter. There should be no exercise of the right to vote simply because the right
exists, or because the stocks sequestered constitute the controlling or a substantial
part of the corporate voting power. The stock is not to be voted to replace directors,
or revise the articles or by-laws, or otherwise bring about substantial changes in
policy, program or practice of the corporation except for demonstrably weighty and
defensible grounds, and always in the context of the stated purposes of
sequestration or provisional takeover, i.e., to prevent the dispersion or undue
disposal of the corporate assets. Directors are not to be voted out simply because
the power to do so exists. Substitution of directors is not to be done without reason
or rhyme, should indeed be shunned if at an possible, and undertaken only when
essential to prevent disappearance or wastage of corporate property, and always
under such circumstances as assure that the replacements are truly possessed of
competence, experience and probity.

In the case at bar, there was adequate justification to vote the incumbent directors
out of office and elect others in their stead because the evidence showed prima
facie that the former were just tools of President Marcos and were no longer owners
of any stock in the firm, if they ever were at all. This is why, in its Resolution of
October 28, 1986; 118 this Court declared that —

Petitioner has failed to make out a case of grave abuse or excess of

jurisdiction in respondents' calling and holding of a stockholders'
meeting for the election of directors as authorized by the Memorandum
of the President * * (to the PCGG) dated June 26, 1986, particularly,
where as in this case, the government can, through its designated
directors, properly exercise control and management over what appear
to be properties and assets owned and belonging to the government
itself and over which the persons who appear in this case on behalf of
BASECO have failed to show any right or even any shareholding in
said corporation.

It must however be emphasized that the conduct of the PCGG nominees in the
BASECO Board in the management of the company's affairs should henceforth be
guided and governed by the norms herein laid down. They should never for a
moment allow themselves to forget that they are conservators, not owners of the
business; they are fiduciaries, trustees, of whom the highest degree of diligence and
rectitude is, in the premises, required.

25. No Sufficient Showing of Other Irregularities

As to the other irregularities complained of by BASECO, i.e., the cancellation or
revision, and the execution of certain contracts, inclusive of the termination of the
employment of some of its executives, 119 this Court cannot, in the present state of the evidence on record,
pass upon them. It is not necessary to do so. The issues arising therefrom may and will be left for initial determination in the appropriate
action. But the Court will state that absent any showing of any important cause therefor, it will not normally substitute its judgment for
that of the PCGG in these individual transactions. It is clear however, that as things now stand, the petitioner cannot be said to have
established the correctness of its submission that the acts of the PCGG in question were done without or in excess of its powers, or
with grave abuse of discretion.

WHEREFORE, the petition is dismissed. The temporary restraining order issued on

October 14, 1986 is lifted.

Yap, Fernan, Paras, Gancayco and Sarmiento, JJ., concur.

EN BANC

G.R. No. 101476 April 14, 1992

EXPORT PROCESSING ZONE AUTHORITY, petitioner,

vs.
THE COMMISSION ON HUMAN RIGHTS, TERESITA VALLES, LORETO ALEDIA
and PEDRO ORDONEZ, respondents.

GRIÑO-AQUINO, J.:

On May 30, 1980, P.D. 1980 was issued reserving and designating certain parcels
of land in Rosario and General Trias, Cavite, as the "Cavite Export Processing
Zone" (CEPZ). For purposes of development, the area was divided into Phases I to
IV. A parcel of Phase IV was bought by Filoil Refinery Corporation, formerly Filoil
Industrial Estate, Inc. The same parcel was later sold by Filoil to the Export
Processing Zone Authority (EPZA).

Before EPZA could take possession of the area, several individuals had entered the
premises and planted agricultural products therein without permission from EPZA or
its predecessor, Filoil. To convince the intruders to depart peacefully, EPZA, in 1981,
paid a P10,000-financial-assistance to those who accepted the same and signed
quitclaims. Among them were Teresita Valles and Alfredo Aledia, father of
respondent Loreto Aledia.

Ten years later, on May 10, 1991, respondent Teresita Valles, Loreto Aledia and
Pedro Ordoñez filed in the respondent Commission on Human Rights (CHR) a joint
complaint (Pinagsamahang Salaysay) praying for "justice and other reliefs and
remedies" ("Katarungan at iba pang tulong"). The CHR conducted an investigation of
the complaint.

According to the CHR, the private respondents, who are farmers, filed in the
Commission on May 10, 1991 a verified complaint for violation of their human rights.
They alleged that on March 20, 1991, at 10:00 o'clock in the morning. Engineer
Neron Damondamon, EPZA Project Engineer, accompanied by his subordinates and
members of the 215th PNP Company, brought a bulldozer and a crane to level the
area occupied by the private respondents who tried to stop them by showing a copy
of a letter from the Office of the President of the Philippines ordering postponement
of the bulldozing. However, the letter was crumpled and thrown to the ground by a
member of Damondamon's group who proclaimed that: "The President in Cavite is
Governor Remulla!"
On April 3, 1991, mediamen who had been invited by the private respondents to
cover the happenings in the area were beaten up and their cameras were snatched
from them by members of the Philippine National Police and some government
officials and their civilian followers.

On May 17, 1991, the CHR issued an Order of injunction commanding EPZA, the
125th PNP Company and Governor Remulla and their subordinates to desist from
committing further acts of demolition, terrorism, and harassment until further orders
from the Commission and to appeal before the Commission on May 27, 1991 at 9:00
a.m. for a dialogue (Annex A).

On May 25, 1991, two weeks later, the same group accompanied by men of
Governor Remulla, again bulldozed the area. They allegedly handcuffed private
respondent Teresita Valles, pointed their firearms at the other respondents, and fired
a shot in the air.

On May 28, 1991, CHR Chairman Mary Concepcion Bautista issued another
injunction Order reiterating her order of May 17, 1991 and expanded it to include the
Secretary of Public Works and Highways, the contractors, and their subordinates.
The order reads as follows:

Considering the sworn statements of the farmers whose farmlands are

being bulldozed and the wanton destruction of their irrigation canals
which prevent cultivation at the farmlands as well as the claim of
ownership of the lands by some farmers-complainants, and their
possession and cultivation thereof spanning decades, including the
failure of the officials concerned to comply with the Constitutional
provision on the eviction of rural "squatters", the Commission reiterates
its Order of May 17, 1991, andfurther orders the Secretary of Public
Works and Highways, their Contractors and representatives to refrain
and desist from bulldozing the farmlands of the complainants-
farmers who have come to the Commission for relief, during the
pendency of this investigation and to refrain from further destruction of
the irrigation canals in the area until further orders of the Commission.

This dialogue is reset to June 10, 1991 at 9 00 a.m. and the Secretary
of the Department of Public Works and Highways or his representative
is requested to appear. (p. 20, Rollo; emphasis supplied)

On July 1, 1991, EPZA filed in the CHR a motion to lift the Order of Injunction for
lack of authority to issue injunctive writs and temporary restraining orders.

On August 16, 1991, the Commission denied the motion.

On September 11, 1991, the petitioner, through the Government Corporate Counsel,
filed in this Court a special civil action of certiorari and prohibition with a prayer for
the issuance of a restraining order and/or preliminary injunction, alleging that the
CHR acted in excess of its jurisdiction and with grave abuse of discretion in issuing
the restraining order and injunctive writ; that the private respondents have no clear,
positive right to be protected by an injunction; that the CHR abused its discretion in
entertaining the private respondent's complaint because the issue raised therein had
been decided by this Court, hence, it is barred by prior judgment.

On September 19, 1991, this Court issued a temporary restraining order, ordering
the CHR to cease and desist from enforcing and/or implementing the questioned
injunction orders.
In its comment on the petition, the CHR asked for the immediate lifting of this Court's
restraining order, and for an order restraining petitioner EPZA from doing further acts
of destruction and harassment. The CHR contends that its principal function under
Section 18, Art. 13 of the 1987 Constitution, "is not limited to mere investigation"
because it is mandated, among others, to:

a. Investigate, on its own or on complaint by any party, all forms of

human rights violations involving civil and political rights;

b. Adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court;

c. Provide appropriate legal measures for the protection of human

rights of all persons within the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures and legal aid services to
the under privileged whose human rights have been violated or need
protection;

d. Monitor the Philippine Government's compliance with international

treaty obligations on human rights. (Emphasis supplied.) (p. 45, Rollo)

On November 14, 1991, the Solicitor General filed a Manifestation and Motion
praying that he be excused from filing a Comment for the CHR on the ground that
the Comment filed by the latter "fully traversed and squarely met all the issues raised
and discussed in the main Petition for Certiorari and Prohibition" (p. 83, Rollo).

Does the CHR have jurisdiction to issue a writ of injunction or restraining order
against supposed violators of human rights, to compel them to cease and desist
from continuing the acts complained of?

In Hon. Isidro Cariño, et al. vs. Commission on Human Rights, et al., G.R No. 96681,
December 2, 1991, we held that the CHR is not a court of justice nor even a quasi-
judicial body.

The most that may be conceded to the Commission in the way of

adjudicative power is that it may investigate, i.e., receive evidence and
make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact-finding is not adjudication,
and cannot be likened to thejudicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving
evidence and ascertaining therefrom the facts of a controversy is not a
judicial function, properly speaking. To be considered such, the faculty
of receiving evidence and making factual conclusions in a controversy
must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitely, subject to such
appeals or modes of review as may be provided by law. This function,
to repeat, the Commission does not have.

xxx xxx xxx

Hence it is that the Commission on Human Rights, having merely the

power "to investigate," cannot and should not "try and resolve on the
merits" (adjudicate) the matters involved in Striking Teachers HRC
Case No. 90-775, as it has announced it means to do; and it cannot do
so even if there be a claim that in the administrative disciplinary
proceedings against the teachers in question, initiated and conducted
 by the DECS, their human rights, or civil or political rights had been
transgressed. More particularly, the Commission has no power
to "resolve on the merits" the question of (a) whether or not the mass
concerted actions engaged in by the teachers constitute a strike and
are prohibited or otherwise restricted by law; (b) whether or not the act
of carrying on and taking part in those actions, and the failure of the
teachers to discontinue those actions and return to their classes
despite the order to this effect by the Secretary of Education, constitute
infractions of relevant rules and regulations warranting administrative
disciplinary sanctions, or are justified by the grievances complained of
by them; and (c) what were the particular acts done by each individual
teacher and what sanctions, if any, may properly be imposed for said
acts or omissions. (pp. 5 & 8.)

The constitutional provision directing the CHR to "provide for preventive measures
and legal aid services to the underprivileged whose human rights have been violated
or need protection" may not be construed to confer jurisdiction on the Commission to
issue a restraining order or writ of injunction for, if that were the intention, the
Constitution would have expressly said so. "Jurisdiction is conferred only by the
Constitution or by law" (Oroso, Jr. vs. Court of Appeals, G.R. Nos. 76828-32, 28
January 1991; Bacalso vs. Ramolete, G.R. No. L-22488, 26 October 1967, 21 SCRA
519). It is never derived by implication (Garcia, et al. vs. De Jesus, et al., G.R. No.
88158; Tobon Uy vs. Commission on Election, et al.. G.R. Nos. 97108-09, March 4,
1992).

Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a preliminary writ of
injunction) which the CHR may seek from the proper courts on behalf of the victims
of human rights violations. Not being a court of justice, the CHR itself has no
jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued
"by the judge of any court in which the action is pending [within his district], or by a
Justice of the Court of Appeals, or of the Supreme Court. It may also be granted by
the judge of a Court of First Instance [now Regional Trial Court] in any action
pending in an inferior court within his district." (Sec. 2, Rule 58, Rules of Court). A
writ of preliminary injunction is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the rights and interest of a party
thereto, and for no other purpose

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The orders of
injunction dated May 17 and 28, 1991 issued by the respondent Commission on
Human Right are here by ANNULLED and SET ASIDE and the temporary
restraining order which this Court issued on September 19, 1991, is hereby made
PERMANENT.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Bidin,

Medialdea, Regalado, Devide, Jr., Romero and Nocon, JJ., concur.

Feliciano and Bellosillo, JJ., are on leave.

EN BANC
 G.R. No. 182498
GEN. AVELINO I. RAZON,
JR., Chief, Philippine Present:
National Police (PNP); Police
Chief Superintendent RAUL PUNO, C.J.,
CASTAEDA, Chief, Criminal CARPIO,
Investigation and Detection CORONA,
Group (CIDG); Police Senior CARPIO MORALES,
Superintendent LEONARDO CHICO-NAZARIO,
A. ESPINA, Chief, Police VELASCO, JR.,
Anti-Crime and Emergency NACHURA,
Response (PACER); and LEONARDO-DE CASTRO,
GEN. JOEL R. GOLTIAO, BRION,
Regional Director of ARMM, PERALTA,
PNP, BERSAMIN,
Petitioners, DEL CASTILLO,
- versus - ABAD, and
VILLARAMA, JR., JJ.

MARY JEAN B. TAGITIS,

herein represented by ATTY.
FELIPE P. ARCILLA, JR., Promulgated:
Attorney-in-Fact,
Respondent. December 3, 2009

x-----------------------------------------------------------------------------------------x
DECISION
BRION, J.:

We review in this petition for review on certiorari[1] the decision dated

March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No.
00009.[2] This CA decision confirmed the enforced disappearance of Engineer
Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of
his wife, Mary Jean B. Tagitis (respondent). The dispositive portion of the CA
decision reads:

WHEREFORE, premises considered, petition is

hereby GRANTED. The Court hereby FINDS that this is
an enforced disappearance within the meaning of the United
Nations instruments, as used in the Amparo Rules. The privileges of
the writ of amparo are hereby extended to Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M.

DOROMAL, Chief, Criminal Investigation and Detention Group
(CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-
9 Chief, Zamboanga City, to aid him; (2) respondent GEN.
 AVELINO I. RAZON, Chief, PNP, who should order his men,
namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director
of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK
FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency
Response, to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the
life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his
family, and to submit a monthly report of their actions to this Court,
as a way of PERIODIC REVIEW to enable this Court to monitor
the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT.

GEN. ALEXANDER YANO, Commanding General, Philippine
Army, and as to respondent GEN. RUBEN RAFAEL, Chief Anti-
Terror Task Force Comet, Zamboanga City, both being with the
military, which is a separate and distinct organization from the police
and the CIDG, in terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a protective remedy
against violations or threats of violation against the rights to life, liberty and
security.[3] It embodies, as a remedy, the courts directive to police agencies to
undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the enforced
disappearance for purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors have been
established by substantial evidence to have participated in whatever way, by
action or omission, in an enforced disappearance, as a measure of the remedies
this Court shall craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper
courts.Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who
carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of
the Writ of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his liberty and
security are restored.

We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these situations, may not at
all be the same as the standard measures and procedures in ordinary court
actions and proceedings. In this sense, the Rule on the Writ
of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule
should be read, too, as a work in progress, as its directions and finer points
remain to evolve through time and jurisprudence and through the substantive
laws that Congress may promulgate.

THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB)
Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin
Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early
morning of October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy
him a boat ticket for his return trip the following day to Zamboanga. When
Kunnong returned from this errand, Tagitis was no longer around. [5] The
receptionist related that Tagitis went out to buy food at around 12:30 in the
afternoon and even left his room key with the desk.[6] Kunnong looked for
Tagitis and even sent a text message to the latters Manila-based secretary who
did not know of Tagitis whereabouts and activities either; she advised Kunnong
to simply wait.[7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP

professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station.[8] On November 7,
2007, Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a
Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-
Fact, Atty. Felipe P. Arcilla.[10]The petition was directed against Lt. Gen.
Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I.
Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal,
Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo
A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel
Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-
Terror Task Force Comet [collectively referred to as petitioners]. After reciting
Tagitis personal circumstances and the facts outlined above, the petition went
on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly took him and
boarded the latter on a motor vehicle then sped awaywithout the
knowledge of his student, Arsimin Kunnong;

8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis cannot
 [sic] be contacted by phone and was not also around and his room was closed
and locked;

9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that the
personal belongings of Engr. Tagitis, including cell phones, documents and
other personal belongings were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the
matter to the police authorities in Jolo, he was immediately given a ready
answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group
and other groups known to be fighting against the government;

12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by
phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of
ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi
Arabia;

13. [Respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought
help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;

14. All of these efforts of the [respondent] did not produce any positive results except
the information from persons in the military who do not want to be identified
that Engr. Tagitis is in the hands of the uniformed men;

15. According to reliable information received by the [respondent], subject Engr.

Tagitis is in the custody of police intelligence operatives, specifically with
the CIDG, PNP Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with the
different terrorist groups;

xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find
her husband, but [respondents] request and pleadings failed to produce any
positive results;

18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of
the [petitioners] refusal to help and provide police assistance in locating her
missing husband;

19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to
[the respondent] of the subjects whereabouts, and/or allow [the respondent] to
visit her husband Engr. Morced Tagitis, caused so much sleepless nights and
serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in
Jolo, and in Camp Crame, Quezon City, and all these places have been visited
by the [respondent] in search for her husband, which entailed expenses for her
trips to these places thereby resorting her to borrowings and beggings [sic] for
financial help from friends and relatives only to try complying [sic] to the
different suggestions of these police officers, despite of which, her efforts
produced no positive results up to the present time;

21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper
persons that she should approach, but assured her not to worry because her
husband is [sic] in good hands;

22. The unexplained uncooperative behavior of the [petitioners] to the [respondents]

request for help and failure and refusal of the [petitioners] to extend the
needed help, support and assistance in locating the whereabouts of Engr.
Tagitis who had been declared missing since October 30, 2007 which is
almost two (2) months now, clearly indicates that the [petitioners] are actually
in physical possession and custody of [respondents] husband, Engr. Tagitis;

xxxx

25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [the respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of the [petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO. [Emphasis
supplied]

On the same day the petition was filed, the CA immediately issued the Writ
of Amparo, set the case for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-two (72) hours from
service of the writ.[11]

In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged
abduction. They argued that the allegations of the petition were incomplete and
did not constitute a cause of action against them; were baseless, or at best
speculative; and were merely based on hearsay evidence. [12]

The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the

Return, stated that: he did not have any personal knowledge of, or any
participation in, the alleged disappearance; that he had been designated by
President Gloria Macapagal Arroyo as the head of a special body called TASK
FORCE USIG, to address concerns about extralegal killings and enforced
disappearances; the Task Force, inter alia, coordinated with the investigators
and local police, held case conferences, rendered legal advice in connection to
these cases; and gave the following summary:[13]

xxxx
4.
 a) On November 5, 2007, the Regional Director, Police Regional
Office ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis.According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then
roamed around Jolo, Sulu with an unidentified companion. It was only after a
few days when the said victim did not return that the matter was reported to
Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said missing person,
but to no avail.The said PPO is still conducting investigation that will lead to
the immediate findings of the whereabouts of the person.

b) Likewise, the Regional Chief, 9RCIDU submitted a Progress

Report to the Director, CIDG. The said report stated among others that:
subject person attended an Education Development Seminar set on October
28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with
a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning,
Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in
the morning of the same date, he instructed his student to purchase a fast craft
ticket bound for Zamboanga City and will depart from Jolo, Sulu on October
31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left the
premises of ASY Pension House as stated by the cashier of the said pension
house. Later in the afternoon, the student instructed to purchase the ticket
arrived at the pension house and waited for Engr. Tagitis, but the latter did not
return. On its part, the elements of 9RCIDU is now conducting a continuous
case build up and information gathering to locate the whereabouts of Engr.
Tagitis.

c) That the Director, CIDG directed the conduct of the search in

all divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since October
30, 2007, but after diligent and thorough search, records show that no such
person is being detained in CIDG or any of its department or divisions.

5. On this particular case, the Philippine National Police exhausted all

possible efforts, steps and actions available under the circumstances and
continuously search and investigate [sic] the instant case. This immense
mandate, however, necessitates the indispensable role of the citizenry, as the
PNP cannot stand alone without the cooperation of the victims and witnesses
to identify the perpetrators to bring them before the bar of justice and secure
their conviction in court.

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well

his affidavit, also attached to the Return of the Writ, attesting that upon receipt
of the Writ of Amparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately
directed the Investigation Division of this Group [CIDG] to conduct urgent
investigation on the alleged enforced disappearance of Engineer Morced
Tagitis.

That based on record, Engr. Morced N. Tagitis attended an Education

Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007,
 at around six oclock in the morning he arrived at Jolo, Sulu. He was assisted
by his student identified as Arsimin Kunnong of the Islamic Development
Bank who was also one of the participants of the said seminar. He checked in
at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30,
2007 with [sic] unidentified companion. At around six oclock in the morning
of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket
for Zamboanga City. In the afternoon of the same date, Kunnong arrived at
the pension house carrying the ticket he purchased for Engr. Tagitis, but the
latter was nowhere to be found anymore. Kunnong immediately informed
Prof. Abdulnasser Matli who reported the incident to the police. The CIDG is
not involved in the disappearance of Engr. Morced Tagitis to make out a case
of an enforced disappearance which presupposes a direct or indirect
involvement of the government.

That herein [petitioner] searched all divisions and departments for a person
named Engr. Morced N. Tagitis, who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007
and after a diligent and thorough research records show that no such person is
being detained in CIDG or any of its department or divisions.

That nevertheless, in order to determine the circumstances surrounding Engr.

Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its
full completion in order to aid in the prosecution of the person or persons
responsible therefore.

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:[16]

xxxx

That, I and our men and women in PACER vehemently deny any participation
in the alleged abduction or illegally [sic] detention of ENGR. MORCED N.
TAGITS on October 30, 2007.As a matter of fact, nowhere in the writ was
mentioned that the alleged abduction was perpetrated by elements of PACER
nor was there any indication that the alleged abduction or illegal detention of
ENGR. TAGITIS was undertaken jointly by our men and by the allegedcovert
CIDG-PNP intelligence operatives alleged to have abducted or illegally
detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until now continue to be one of
the menace of our society is a respondent in kidnapping or illegal detention
case.Simply put, our task is to go after kidnappers and charge them in court
and to abduct or illegally detain or kidnap anyone is anathema to our mission.

That right after I learned of the receipt of the WRIT OF AMPARO, I directed
the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-
active measures to investigate, locate/search the subject, identify and
apprehend the persons responsible, to recover and preserve evidence related to
the disappearance of ENGR. MORCED TAGITIS, which may aid in the
prosecution of the person or persons responsible, to identify witnesses and
obtain statements from them concerning the disappearance and to determine
 the cause, manner, location and time of disappearance as well as any pattern
or practice that may have brought about the disappearance.

That I further directed the chief of PACER-MOR, Police Superintendent

JOSE ARNALDO BRIONES JR., to submit a written report regarding the
disappearance of ENGR. MORCED.

That in compliance with my directive, the chief of PACER-MOR sent through

fax his written report.

That the investigation and measures being undertaken to locate/search the

subject in coordination with Police Regional Office, Autonomous Region of
Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO)
and other AFP and PNP units/agencies in the area are ongoing with the
instruction not to leave any stone unturned so to speak in the investigation
until the perpetrators in the instant case are brought to the bar of justice.

That I have exercised EXTRAORDINARY DILIGENCE in dealing with the

WRIT OF AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao
(Gen. Goltiao), also submitted his affidavit detailing the actions that he had
taken upon receipt of the report on Tagitis disappearance, viz:[17]
xxxx

3) For the record:

1. I am the Regional Director of Police Regional Office ARMM

now and duringthe time of the incident;

xxxx

4. It is my duty to look into and take appropriate measures on any

cases of reported enforced disappearances and when they are being alluded to
my office;

5. On November 5, 2007, the Provincial Director of Sulu Police Provincial

Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007
that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli,
an employee of Islamic Development Bank, appeared before the Office of the
Chief of Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development Bank,
Manila;

6. There was no report that Engr. Tagibis was last seen in the company of or
taken by any member of the Philippine National Police but rather he just
disappeared from ASY Pension House situated at Kakuyagan Village, Village,
Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or
arrest;

7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket
at the Office of Weezam Express, however, when the student returned back to
ASY Pension House, he no longer found Engr. Tagitis there and when he
immediately inquired at the information counter regarding his whereabouts
[sic], the person in charge in the counter informed him that Engr. Tagitis had
left the premises on October 30, 2007 around 1 oclock p.m. and never
returned back to his room;

8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call
and text messages to conduct investigation [sic] to determine the whereabouts
of the aggrieved party and the person or persons responsible for the threat, act
or omission, to recover and preserve evidence related to the disappearance of
Engr. Tagitis, to identify witnesses and obtain statements from them
concerning his disappearance, to determine the cause and manner of his
disappearance, to identify and apprehend the person or persons involved in the
disappearance so that they shall be brought before a competent court;

9. Thereafter, through my Chief of the Regional Investigation and Detection

Management Division, I have caused the following directives:

a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22,

2007 directing PD Sulu PPO to conduct joint investigation with CIDG
and CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28,

2007 directing PD Sulu PPO to expedite compliance to my previous
directive;

c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO

reiterating our series of directives for investigation and directing him
to undertake exhaustive coordination efforts with the owner of ASY
Pension House and student scholars of IDB in order to secure
corroborative statements regarding the disappearance and whereabouts
of said personality;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO

directing him to maximize efforts to establish clues on the whereabouts
of Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli
and Arsimin Kunnong and/or whenever necessary, for them to
voluntarily submit for polygraph examination with the NBI so as to
expunge all clouds of doubt that they may somehow have knowledge
or idea to his disappearance;

e) Memorandum dated December 27, 2007 addressed to the Regional

Chief, Criminal Investigation and Detection Group, Police Regional
Office 9, Zamboanga City, requesting assistance to investigate the
cause and unknown disappearance of Engr. Tagitis considering that it
is within their area of operational jurisdiction;

f) Memorandum from Chief, Intelligence Division, PRO ARMM dated

December 30, 2007 addressed to PD Sulu PPO requiring them to
submit complete investigation report regarding the case of Engr.
Tagitis;

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts
to conduct investigation [sic] on the matter to determine the whereabouts of
Engr. Tagitis and the circumstances related to his disappearance and
submitted the following:
 a) Progress Report dated November 6, 2007 through Radio Message Cite
No. SPNP3-1106-10-2007;

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that

they are still monitoring the whereabouts of Engr. Tagitis;

c) Investigation Report dated December 31, 2007 from the Chief of Police,
Jolo Police Station, Sulu PPO;

11. This incident was properly reported to the PNP Higher Headquarters as
shown in the following:

a) Memorandum dated November 6, 2007 addressed to the Chief, PNP

informing him of the facts of the disappearance and the action being taken
by our office;

b) Memorandum dated November 6, 2007 addressed to the Director,

Directorate for Investigation and Detection Management, NHQ PNP;

c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot

be determined but our office is continuously intensifying the conduct of
information gathering, monitoring and coordination for the immediate
solution of the case.

Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen.
Goltiao as the officer in command of the area of disappearance to form TASK
FORCE TAGITIS.[18]

Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS
Supt. Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set
three hearings to monitor whether TASK FORCE TAGITIS was exerting
extraordinary efforts in handling the disappearance of Tagitis.[20] As planned,
(1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the
second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM;
and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu
and the Chief of Police of Zamboanga City and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the
CA an intelligence report from PSL Usman S. Pingay, the Chief of Police of the
Jolo Police Station, stating a possible motive for Tagitis disappearance. [22] The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary Student Counselor
of the IDB Scholarship Program in the Philippines, who told the Provincial
Governor of Sulu that:[23]
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by
 the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was]
intended for the IDB Scholarship Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged
to be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention
cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any
knowledge or complicity in any abduction.[25] He further testified that prior to
the hearing, he had already mobilized and given specific instructions to their
supporting units to perform their respective tasks; that they even talked to, but
failed to get any lead from the respondent in Jolo.[26] In his submitted
investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]
9. Gleaned from the undersigned inspection and observation at the Headquarters 9
RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis
last October 30, 2007. Since doubt has been raised regarding the emolument
on the Islamic Development Bank Scholar program of IDB that was
reportedly deposited in the personal account of Engr. Tagitis by the IDB
central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might
[sic] be done by resentment or sour grape among students who are applying
for the scholar [sic] and were denied which was allegedly conducted/screened
by the subject being the coordinator of said program.

20. It is also premature to conclude but it does or it may and [sic] presumed that the
motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities
from the institution where he belong as well as to the Islamic student scholars
should the statement of Prof. Matli be true or there might be a professional
jealousy among them.

xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in
the area particularly the CIDG are exerting their efforts and religiously doing
their tasked [sic] in the conduct of its intelligence monitoring and
investigation for the early resolution of this instant case. But rest assured, our
office, in coordination with other law-enforcement agencies in the area, are
continuously and religiously conducting our investigation for the resolution of
this case.

On February 4, 2008, the CA issued an ALARM WARNING that TASK

FORCE TAGITISdid not appear to be exerting extraordinary efforts in
resolving Tagitis disappearance on the following grounds:[28]

(1) This Court FOUND that it was only as late as January 28,
2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON
AJIRIM had requested for clear photographs when it should have been
standard operating procedure in kidnappings or disappearances that the first
agenda was for the police to secure clear pictures of the missing person, Engr.
Morced Tagitis, for dissemination to all parts of the country and to
neighboring countries. It had been three (3) months since GEN. JOEL
 GOLTIAO admitted having been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by alleged bad elements of the
CIDG. It had been more than one (1) month since the Writ of Amparohad been
issued on December 28, 2007. It had been three (3) weeks when battle
formation was ordered through Task Force Tagitis, on January 17, 2008. It
was only on January 28, 2008 when the Task Force Tagitis requested for clear
and recent photographs of the missing person, Engr. Morced Tagitis, despite
the Task Force Tagitis claim that they already had an all points bulletin, since
November 5, 2007, on the missing person, Engr. Morced Tagitis.How could
the police look for someone who disappeared if no clear photograph had been
disseminated?

(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM

informed this Court that P/Supt KASIM was designated as Col. Ahirom
Ajirims replacement in the latters official designated post. Yet, P/Supt
KASIMs subpoena was returned to this Court unserved.Since this Court was
made to understand that it was P/Supt KASIM who was the petitioners
unofficial source of the military intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition),
the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK
FORCE TAGITIS should have ensured the appearance of Col. KASIM in
response to this courts subpoena and COL. KASIM could have confirmed the
military intelligence information that bad elements of the CIDG had abducted
Engr. Morced Tagitis.

Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her
to specify her allegations, particularly paragraph 15 of the petition.[29] This
friend also told her that her husband [was] in good hands.[30] The respondent
also testified that she sought the assistance of her former boss in Davao City,
Land Bank Bajada Branch Manager Rudy Salvador, who told her that PNP
CIDG is holding [her husband], Engineer Morced Tagitis.[31] The respondent
recounted that she went to Camp Katitipan in Davao City where she met Col.
Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her
friends (who were then with her) a highly confidential report that contained the
alleged activities of Engineer Tagitis and informed her that her husband was
abducted because he is under custodial investigation for being a liaison for J.I.
or Jemaah Islamiah.[32]

On January 17, 2008, the respondent on cross-examination testified that she is

Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.[33] She last communicated with her husband on
October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then
on his way to Jolo, Sulu, from Zamboanga City.[34]

The respondent narrated that she learned of her husbands disappearance on

October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed
her that she had not heard from her father since the time they arranged to meet
in Manila on October 31, 2007.[35] The respondent explained that it took her a
few days (or on November 5, 2007) to personally ask Kunnong to report her
husbands disappearance to the Jolo Police Station, since she had the impression
that her husband could not communicate with her because his cellular phones
battery did not have enough power, and that he would call her when he had
fully-charged his cellular phones battery.[36]

The respondent also identified the high-ranking military friend, who gave her
the information found in paragraph 15 of her petition, as Lt. Col. Pedro L.
Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga
through her boss.[37] She also testified that she was with three other people,
namely, Mrs. Marydel Martin Talbin and her two friends from Mati City,
Davao Oriental, when Col. Kasim read to them the contents of the highly
confidential report at Camp Katitipan, Davao City. The respondent further
narrated that the report indicated that her husband met with people belonging to
a terrorist group and that he was under custodial investigation. She then told
Col. Kasim that her husband was a diabetic taking maintenance medication, and
asked that the Colonel relay to the persons holding him the need to give him his
medication.[38]

On February 11, 2008, TASK FORCE TAGITIS submitted two narrative

reports,[39]signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs.
Marydel Talbin.Our flight from Davao City is 9:00 oclock in the morning; we
arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched by
the two staffs of Col. Ancanan. We immediately proceed [sic] to West
Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He
interviewed me and got information about the personal background of Engr.
Morced N. Tagitis. After he gathered all information, he revealed to us the
contents of text messages they got from the cellular phone of the subject Engr.
Tagitis. One of the very important text messages of Engr. Tagitis sent to his
daughter Zaynah Tagitis was that she was not allowed to answer any
telephone calls in his condominium unit.

While we were there he did not tell us any information of the whereabouts of
Engr. Tagitis.After the said meeting with Col. Ancanan, he treated us as
guests to the city. His two staffs accompanied us to the mall to purchase our
plane ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the
morning, Col. Ancanan and I were discussing some points through phone
calls. He assured me that my husband is alive and hes last looked [sic] in
Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the
whereabouts of my husband, because I contacted some of my friends who
have access to the groups of MILF, MNLF and ASG. I called up Col.
Ancanan several times begging to tell me the exact location of my husband
and who held him but he refused.
 While I was in Jolo, Sulu on November 30, 2007, I called him up again
because the PNP, Jolo did not give me any information of the whereabouts of
my husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan
ang kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit
for the reason that the Chief of Police of Jolo told me not to contact any AFP
officials and he promised me that he can solve the case of my husband (Engr.
Tagitis) within nine days.

I appreciate the effort of Col. Ancanan on trying to solve the case of my

husband Engr. Morced Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada
Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband,
Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on
October 30, 2007. I asked him a favor to contact his connections in the
military in Jolo, Sulu where the abduction of Engr. Tagitis took place.Mr.
Salvador immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather reliable information
behind the abduction of subject Engineer Tagitis.

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr.
Salvador introduced me to Col. Kasim and we had a short conversation. And
he assured me that hell do the best he can to help me find my husband.

After a few weeks, Mr. Salvador called me up informing me up informing me

that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent,
confidential information to reveal.

On November 24, 2007, we went back to Camp Katitipan with my three

friends. That was the time that Col. Kasim read to us the confidential report
that Engr. Tagitis was allegedly connected [with] different terrorist [groups],
one of which he mentioned in the report was OMAR PATIK and a certain
SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still
remember. It was written in a long bond paper with PNP Letterhead. It was
not shown to us, yet Col. Kasim was the one who read it for us.

He asked a favor to me that Please dont quote my Name! Because this is a raw
report. He assured me that my husband is alive and he is in the custody of the
military for custodial investigation. I told him to please take care of my
husband because he has aliments and he recently took insulin for he is a
diabetic patient.

In my petition for writ of amparo, I emphasized the information that I got

from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin
(Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her
husband, in relation particularly with the information she received from Col.
Kasim. Mrs. Talbin testified that she was with the respondent when she went to
Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet
Col. Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who
told them that there was a report and that he showed them a series of text
messages from Tagitis cellular phone, which showed that Tagitis and his
daughter would meet in Manila on October 30, 2007.[43]

She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked
Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them
that Tagitis was in good hands, although he was not certain whether he was
with the PNP or with the Armed Forces of the Philippines (AFP). She further
recounted that based on the report Col. Kasim read in their presence, Tagitis
was under custodial investigation because he was being charged with terrorism;
Tagitis in fact had been under surveillance since January 2007 up to the time he
was abducted when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told them that
he could not give a copy of the report because it was a raw report.[45] She also
related that the Col. Kasim did not tell them exactly where Tagitis was being
kept, although he mentioned Talipapao, Sulu.Prof., lalabas din yan.[50] Prof. Matli also
emphasized that despite what his January 4, 2008 affidavit indicated,[51] he
never told PS Supt. Pingay, or made any accusation, that Tagitis took away
money entrusted to him.[52] Prof. Matli confirmed, however, that that he had
received an e-mail report[53] from Nuraya Lackian of the Office of Muslim
Affairs in Manila that the IDB was seeking assistance of the office in locating
the funds of IDB scholars deposited in Tagitis personal account.[54]

On cross-examination by the respondents counsel, Prof. Matli testified that his

January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked
him to sign it.[55] Prof Matli clarified that although he read the affidavit before
signing it, he was not so much aware of [its] contents.[56]

On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the military or the PNP.[57] Col.
Kasim categorically denied the statements made by the respondent in her
narrative report, specifically: (1) that Tagitis was seen carrying boxes of
medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that your
husband is in good hands and is probably taken cared of by his armed
abductors; and (3) that Tagitis was under custodial investigation by the
military, the PNP or the CIDG Zamboanga City.[58] Col. Kasim emphasized that
the informal letter he received from his informant in Sulu did not indicate that
Tagitis was in the custody of the CIDG.[59] He also stressed that the information
he provided to the respondent was merely a raw report sourced from barangay
intelligence that still needed confirmation and follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a civilian asset, through
a letter which he considered as unofficial.[61] Col. Kasim stressed that the letter
was only meant for his consumption and not for reading by others. [62] He
testified further that he destroyed the letter right after he read it to the
respondent and her companions because it was not important to him and also
because the information it contained had no importance in relation with the
abduction of Tagitis.[63] He explained that he did not keep the letter because it
did not contain any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction.[64]

In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9,
to disprove the respondents allegation that Tagitis was in the custody of CIDG-
Zamboanga City.[65] Col. Pante clarified that the CIDG was the investigative
arm of the PNP, and that the CIDG investigates and prosecutes all cases
involving violations in the Revised Penal Code particularly those considered as
heinous crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU
personnel were involved in the disappearance of Tagitis was baseless, since
they did not conduct any operation in Jolo, Sulu before or after Tagitis reported
disappearance.[67] Col. Pante added that the four (4) personnel assigned to the
Sulu CIDT had no capability to conduct any operation, since they were only
assigned to investigate matters and to monitor the terrorism situation.[68] He
denied that his office conducted any surveillance on Tagitis prior to the latters
disappearance.[69] Col. Pante further testified that his investigation of Tagitis
disappearance was unsuccessful; the investigation was still facing a blank wall
on the whereabouts of Tagitis.[70]

THE CA RULING
On March 7, 2008, the CA issued its decision[71] confirming that the
disappearance of Tagitis was an enforced disappearance under the United
Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances.[72] The CA ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in the abduction, the
missing-person case qualified as an enforced disappearance. The conclusion
that the CIDG was involved was based on the respondents testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the
information that the CIDG, as the police intelligence arm, was involved in
Tagitis abduction came from no less than the military an independent agency of
government. The CA thus greatly relied on the raw report from Col. Kasims
asset, pointing to the CIDGs involvement in Tagitis abduction.The CA held that
raw reports from an asset carried great weight in the intelligence world. It also
labeled as suspect Col. Kasims subsequent and belated retraction of his
statement that the military, the police, or the CIDG was involved in the
abduction of Tagitis.

The CA characterized as too farfetched and unbelievable and a bedlam of

speculation police theories painting the disappearance as intentional on the part
of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no
student of the IDB scholarship program ever came forward to complain that he
or she did not get his or her stipend. The CA also found no basis for the police
theory that Tagitis was trying to escape from the clutches of his second wife, on
the basis of the respondents testimony that Tagitis was a Muslim who could
have many wives under the Muslim faith, and that there was no issue at all
when the latter divorced his first wife in order to marry the second. Finally, the
CA also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM
paramilitary as the cause for Tagitis disappearance, since the respondent, the
police and the military noted that there was no acknowledgement of Tagitis
abduction or demand for payment of ransom the usual modus operandi of these
terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante,
PNP Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao
and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to
exert extraordinary diligence and efforts to protect the life, liberty and security
of Tagitis, with the obligation to provide monthly reports of their actions to the
CA. At the same time, the CA dismissed the petition against the then
respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael,
based on the finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but
the CA denied the motion in its Resolution of April 9, 2008.[73]

THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the
petitioners mainly dispute the sufficiency in form and substance of
the Amparo petition filed before the CA; the sufficiency of the legal remedies
the respondent took before petitioning for the writ; the finding that the rights to
life, liberty and security of Tagitis had been violated; the sufficiency of
evidence supporting the conclusion that Tagitis was abducted; the conclusion
that the CIDG Zamboanga was responsible for the abduction; and, generally,
the ruling that the respondent discharged the burden of proving the allegations
of the petition by substantial evidence.[74]

THE COURTS RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance

In questioning the sufficiency in form and substance of the

respondents Amparopetition, the petitioners contend that the petition violated
Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege
that the respondent failed to:
 1) allege any act or omission the petitioners committed in violation of
Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source
of information;
3) allege that the abduction was committed at the petitioners instructions
or with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged
to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis
disappearance; and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.

A petition for the Writ of Amparo shall be signed and verified and shall
allege, among others (in terms of the portions the petitioners cite):[75]

(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in
supporting affidavits;

(d) The investigation conducted, if any, specifying the names,

personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of
the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to

determine the fate or whereabouts of the aggrieved party and the
identity of the person responsible for the threat, act or omission;
and

The framers of the Amparo Rule never intended Section 5(c) to be

complete in every detail in stating the threatened or actual violation of a victims
rights. As in any other initiatory pleading, the pleader must of course state the
ultimate facts constituting the cause of action, omitting the evidentiary
details.[76] In an Amparo petition, however, this requirement must be read in
light of the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the
victim exactly disappeared, or who actually acted to kidnap, abduct or arrest
him or her, or where the victim is detained, because these information may
purposely be hidden or covered up by those who caused the disappearance. In
this type of situation, to require the level of specificity, detail and precision that
the petitioners apparently want to read into the Amparo Rule is to make this
Rule a token gesture of judicial concern for violations of the constitutional
rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while addressing

the unique Amparo situation, the test in reading the petition should be to
determine whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the
victims rights to life, liberty and security through State or private party
action. The petition should likewise be read in its totality, rather than in terms
of its isolated component parts, to determine if the required elements namely, of
the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security are present.

In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging
in normal activities, and thereafter was nowhere to be found despite efforts to
locate him. The petition alleged, too, under its paragraph 7, in relation to
paragraphs 15 and 16, that according to reliable information, police operatives
were the perpetrators of the abduction. It also clearly alleged how Tagitis rights
to life, liberty and security were violated when he was forcibly taken and
boarded on a motor vehicle by a couple of burly men believed to be police
intelligence operatives, and then taken into custody by the respondents police
intelligence operatives since October 30, 2007, specifically by the CIDG, PNP
Zamboanga City, x x x held against his will in an earnest attempt of the police
to involve and connect [him] with different terrorist groups.[77]
 These allegations, in our view, properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents of
the State in this disappearance, the failure of the State to release Tagitis or to
provide sufficient information about his whereabouts, as well as the actual
violation of his right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to
the summary nature of the proceedings for the writ and to facilitate the
resolution of the petition, the Amparo Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be used as the affiants
direct testimony.[78] This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition if not strictly
followed.Where, as in this case, the petitioner has substantially complied with
the requirement by submitting a verified petition sufficiently detailing the facts
relied upon, the strict need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required affidavits
was fully cured when the respondent and her witness (Mrs. Talbin) personally
testified in the CA hearings held on January 7 and 17 and February 18, 2008 to
swear to and flesh out the allegations of the petition. Thus, even on this point,
the petition cannot be faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of an

alleged disappearance must have been made, specifying the manner and results
of the investigation.Effectively, this requirement seeks to establish at the
earliest opportunity the level of diligence the public authorities undertook in
relation with the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not
comply with the Section 5(d) requirements of the Amparo Rule, as the petition
specifies in its paragraph 11 that Kunnong and his companions immediately
reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as
they were relatively certain that he indeed had disappeared. The police,
however, gave them the ready answer that Tagitis could have been abducted by
the Abu Sayyaf group or other anti-government groups. The respondent also
alleged in paragraphs 17 and 18 of her petition that she filed a complaint with
the PNP Police Station in Cotobato and in Jolo, but she was told of an
intriguing tale by the police that her husband was having a good time with
another woman. The disappearance was alleged to have been reported, too, to
no less than the Governor of the ARMM, followed by the respondents personal
inquiries that yielded the factual bases for her petition.[80]

These allegations, to our mind, sufficiently specify that reports have been
made to the police authorities, and that investigations should have
followed. That the petition did not state the manner and results of the
investigation that the Amparo Rule requires, but rather generally stated the
inaction of the police, their failure to perform their duty to investigate, or at the
very least, their reported failed efforts, should not be a reflection on the
completeness of the petition. To require the respondent to elaborately specify
the names, personal circumstances, and addresses of the investigating authority,
as well the manner and conduct of the investigation is an overly strict
interpretation of Section 5(d), given the respondents frustrations in securing an
investigation with meaningful results. Under these circumstances, we are more
than satisfied that the allegations of the petition on the investigations
undertaken are sufficiently complete for purposes of bringing the petition
forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition that
otherwise is not supported by sufficient allegations to constitute a proper cause
of action as a means to fish for evidence.[81] The petitioners contend that the
respondents petition did not specify what legally available efforts were taken by
the respondent, and that there was an undue haste in the filing of the petition
when, instead of cooperating with authorities, the respondent immediately
invoked the Courts intervention.

We do not see the respondents petition as the petitioners view it.

 Section 5(e) merely requires that the Amparo petitioner (the respondent in
the present case) allege the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission. The following allegations of the respondents
petition duly outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men believed
to be police intelligence operatives, forcibly took him and boarded the latter
on a motor vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;

xxxx

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported the
matter to the police authorities in Jolo, he was immediately given a ready
answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf
group and other groups known to be fighting against the government;

12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by
phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the Governor of
ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi
Arabia;

13. [The respondent], on the other hand, approached some of her co-
employees with the Land Bank in Digos branch, Digos City, Davao del Sur,
who likewise sought help from some of their friends in the military who could
help them find/locate the whereabouts of her husband;

xxxx
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt
of the police to involve and connect Engr. Tagitis with the different terrorist
groups;

xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM
in Cotobato and in Jolo, as suggested by her friends, seeking their help to find
her husband, but [the respondents] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including the police headquarters in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these
places have been visited by the [respondent] in search for her husband, which
entailed expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and relatives
only to try complying to the different suggestions of these police officers,
despite of which, her efforts produced no positive results up to the present
time;

xxxx
25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.

Based on these considerations, we rule that the respondents petition for

the Writ of Amparo is sufficient in form and substance and that the Court of
Appeals had every reason to proceed with its consideration of the case.

The Desaparecidos

The present case is one of first impression in the use and application of
the Rule on the Writ of Amparo in an enforced disappearance situation. For a
deeper appreciation of the application of this Rule to an enforced disappearance
situation, a brief look at the historical context of the writ and enforced
disappearances would be very helpful.

The phenomenon of enforced disappearance arising from State action

first attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog
Decree of December 7, 1941.[82] The Third Reichs Night and Fog Program, a
State policy, was directed at persons in occupied territories endangering
German security; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating
effect, the policy prohibited government officials from providing information
about the fate of these targeted persons.[83]
 In the mid-1970s, the phenomenon of enforced disappearances
resurfaced, shocking and outraging the world when individuals, numbering
anywhere from 6,000 to 24,000, were reported to have disappeared during the
military regime in Argentina. Enforced disappearances spread in Latin America,
and the issue became an international concern when the world noted its
widespread and systematic use by State security forces in that continent under
Operation Condor[84] and during the Dirty War[85] in the 1970s and 1980s. The
escalation of the practice saw political activists secretly arrested, tortured, and
killed as part of governments counter-insurgency campaigns. As this form of
political brutality became routine elsewhere in the continent, the Latin
American media standardized the term disappearance to describe the
phenomenon. The victims of enforced disappearances were called
the desaparecidos,[86] which literally means the disappeared ones.[87] In general,
there are three different kinds of disappearance cases:

1) those of people arrested without witnesses or without positive

identification of the arresting agents and are never found again;

2) those of prisoners who are usually arrested without an appropriate warrant

and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny
having them in custody until they eventually reappear in one detention
center or another; and

3) those of victims of salvaging who have disappeared until their lifeless

bodies are later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first

two categories,[89] and 855 cases were recorded during the period of martial law
from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced
alive and 127 were found dead. During former President Corazon C. Aquinos
term, 820 people were reported to have disappeared and of these, 612 cases
were documented. Of this number, 407 remain missing, 108 surfaced alive and
97 were found dead. The number of enforced disappearances dropped during
former President Fidel V. Ramos term when only 87 cases were reported, while
the three-year term of former President Joseph E. Estrada yielded 58 reported
cases.KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of
enforced disappearance under incumbent President Gloria M. Arroyos
administration. The Commission on Human Rights records show a total of 636
verified cases of enforced disappearances from 1985 to 1993. Of this number,
406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have
undetermined status.[90] Currently, the United Nations Working Group on
Enforced or Involuntary Disappearance[91] reports 619 outstanding cases of
enforced or involuntary disappearances covering the period December 1, 2007
to November 30, 2008.[92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal
killings and enforced disappearances or threats thereof.[93] We note that
although the writ specifically covers enforced disappearances, this concept is
neither defined nor penalized in this jurisdiction. The records of the Supreme
Court Committee on the Revision of Rules (Committee) reveal that the drafters
of the Amparo Rule initially considered providing an elemental definition of the
concept of enforced disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the
rules, definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law penalizing

extrajudicial killings and enforced disappearances so initially also we
have to [come up with] the nature of these extrajudicial killings and
enforced disappearances [to be covered by the Rule] because our concept
of killings and disappearances will define the jurisdiction of the courts. So
well have to agree among ourselves about the nature of killings and
disappearances for instance, in other jurisdictions, the rules only cover state
actors. That is an element incorporated in their concept of extrajudicial
killings and enforced disappearances.In other jurisdictions, the concept
includes acts and omissions not only of state actors but also of non state
actors. Well, more specifically in the case of the Philippines for instance,
should these rules include the killings, the disappearances which may be
authored by let us say, the NPAs or the leftist organizations and others. So,
again we need to define the nature of the extrajudicial killings and enforced
disappearances that will be covered by these rules. [Emphasis supplied] [95]
 In the end, the Committee took cognizance of several bills filed in the
House of Representatives[96] and in the Senate[97] on extrajudicial killings and
enforced disappearances, and resolved to do away with a clear textual definition
of these terms in the Rule. The Committee instead focused on the nature and
scope of the concerns within its power to address and provided the appropriate
remedy therefor, mindful that an elemental definition may intrude into the
ongoing legislative efforts.[98]

As the law now stands, extra-judicial killings and enforced

disappearances in this jurisdiction are not crimes penalized separately from the
component criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and
special laws.[99] The simple reason is that the Legislature has not spoken on the
matter; the determination of what acts are criminal and what the corresponding
penalty these criminal acts should carry are matters of substantive law that only
the Legislature has the power to enact under the countrys constitutional scheme
and power structure.

Even without the benefit of directly applicable substantive laws on extra-

judicial killings and enforced disappearances, however, the Supreme Court is
not powerless to act under its own constitutional mandate to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,[100]since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and
security. Although the Courts power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the
Court can provide can be very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced disappearances. The Court,
through its procedural rules, can set the procedural standards and thereby
directly compel the public authorities to act on actual or threatened violations of
constitutional rights. To state the obvious, judicial intervention can make a
difference even if only procedurally in a situation when the very same
investigating public authorities may have had a hand in the threatened or actual
violations of constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again that

we do not rule on any issue of criminal culpability for the extrajudicial killing
or enforced disappearance. This is an issue that requires criminal action before
our criminal courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of Amparo, is
twofold.The first is to ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when governmental
efforts are less than what the individual situations require. The second is to
address the disappearance, so that the life of the victim is preserved and his or
her liberty and security restored. In these senses, our orders and directives
relative to the writ are continuing efforts that are not truly terminated until the
extrajudicial killing or enforced disappearance is fully addressed by the
complete determination of the fate and the whereabouts of the victim, by the
production of the disappeared person and the restoration of his or her liberty
and security, and, in the proper case, by the commencement of criminal action
against the guilty parties.

Enforced Disappearance
Under International Law

From the International Law perspective, involuntary or enforced

disappearance is considered a flagrant violation of human rights. [101] It does not
only violate the right to life, liberty and security of the desaparecido; it affects
their families as well through the denial of their right to information regarding
the circumstances of the disappeared family member.Thus, enforced
disappearances have been said to be a double form of torture, with doubly
paralyzing impact for the victims, as they are kept ignorant of their own fates,
while family members are deprived of knowing the whereabouts of their
detained loved ones and suffer as well the serious economic hardship and
poverty that in most cases follow the disappearance of the household
breadwinner.[102]

The UN General Assembly first considered the issue of Disappeared

Persons in December 1978 under Resolution 33/173. The Resolution expressed
the General Assemblys deep concern arising from reports from various parts of
the world relating to enforced or involuntary disappearances, and requested the
UN Commission on Human Rights to consider the issue of enforced
disappearances with a view to making appropriate recommendations.[103]

In 1992, in response to the reality that the insidious practice of enforced

disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first time, provided
in its third preambular clause a working description of enforced disappearance,
as follows:

Deeply concerned that in many countries, often in a persistent

manner, enforced disappearances occur, in the sense that persons are
arrested, detained or abducted against their will or otherwise deprived of
their liberty by officials of different branches or levels of Government, or
by organized groups or private individuals acting on behalf of, or with
the support, direct or indirect, consent or acquiescence of the
Government, followed by a refusal to disclose the fate or whereabouts of
the persons concerned or a refusal to acknowledge the deprivation of
their liberty, which places such persons outside the protection of the law.
[Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General

Assembly adopted the International Convention for the Protection of All
Persons from Enforced Disappearance (Convention).[105] The Convention was
opened for signature in Paris, France on February 6, 2007.[106] Article 2 of the
Convention defined enforced disappearance as follows:

For the purposes of this Convention, enforced disappearance is

considered to be the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons
 acting with the authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which place such a person
outside the protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that
there is a right not to be subject to enforced disappearance[107] and that this right
is non-derogable.[108] It provides that no one shall be subjected to enforced
disappearance under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties to codify
enforced disappearance as an offense punishable with appropriate penalties
under their criminal law.[109] It also recognizes the right of relatives of the
disappeared persons and of the society as a whole to know the truth on the fate
and whereabouts of the disappeared and on the progress and results of the
investigation.[110]Lastly, it classifies enforced disappearance as a continuing
offense, such that statutes of limitations shall not apply until the fate and
whereabouts of the victim are established.[111]

Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that
the country is not yet committed to enact any law penalizing enforced
disappearance as a crime. The absence of a specific penal law, however, is not a
stumbling block for action from this Court, as heretofore mentioned; underlying
every enforced disappearance is a violation of the constitutional rights to life,
liberty and security that the Supreme Court is mandated by the Constitution to
protect through its rule-making powers.

Separately from the Constitution (but still pursuant to its terms), the
Court is guided, in acting on Amparo cases, by the reality that the Philippines is
a member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans
rights. Under the UN Charter, the Philippines pledged to promote universal
respect for, and observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or religion.[112] Although no
universal agreement has been reached on the precise extent of the human rights
and fundamental freedoms guaranteed to all by the Charter,[113] it was the UN
itself that issued the Declaration on enforced disappearance, and this
Declaration states:[114]

Any act of enforced disappearance is an offence to dignity. It is condemned

as a denial of the purposes of the Charter of the United Nations and as a
grave and flagrant violation of human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights and reaffirmed
and developed in international instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter

made in a UN Declaration, the ban on enforced disappearance cannot but have
its effects on the country, given our own adherence to generally accepted
principles of international law as part of the law of the land.[115]

In the recent case of Pharmaceutical and Health Care Association of the

Philippines v. Duque III,[116] we held that:

Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force
of domestic law. [Emphasis supplied]

We characterized generally accepted principles of international law as norms of

general or customary international law that are binding on all states. We held
further:[117]

[G]enerally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the land even
if they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result
from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring
it. [Emphasis in the original]

The most widely accepted statement of sources of international law today

is Article 38(1) of the Statute of the International Court of Justice, which
provides that the Court shall apply international custom, as evidence of a
general practice accepted as law.[118] The material sources of custom include
State practice, State legislation, international and national judicial decisions,
recitals in treaties and other international instruments, a pattern of treaties in the
same form, the practice of international organs, and resolutions relating to legal
questions in the UN General Assembly.[119] Sometimes referred to as evidence
of international law,[120] these sources identify the substance and content of the
obligations of States and are indicative of the State practice and opinio
juris requirements of international law.[121] We note the following in these
respects:

First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted the Inter-
American Convention on Enforced Disappearance of Persons in June
1994.[122] State parties undertook under this Convention not to practice, permit,
or tolerate the forced disappearance of persons, even in states of emergency or
suspension of individual guarantees.[123] One of the key provisions includes the
States obligation to enact the crime of forced disappearance in their respective
national criminal laws and to establish jurisdiction over such cases when the
crime was committed within their jurisdiction, when the victim is a national of
that State, and when the alleged criminal is within its territory and it does not
proceed to extradite him, which can be interpreted as establishing universal
jurisdiction among the parties to the Inter-American Convention.[124] At present,
Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate
laws in accordance with the Inter-American Convention and have defined
activities involving enforced disappearance to be criminal.[125]

Second, in Europe, the European Convention on Human Rights has no

explicit provision dealing with the protection against enforced
disappearance. The European Court of Human Rights (ECHR), however, has
applied the Convention in a way that provides ample protection for the
underlying rights affected by enforced disappearance through the Conventions
Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on
the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial;
and Article 13 on the right to an effective remedy. A leading example
demonstrating the protection afforded by the European Convention is Kurt v.
Turkey,[126] where the ECHR found a violation of the right to liberty and
security of the disappeared person when the applicants son disappeared after
being taken into custody by Turkish forces in the Kurdish village of Agilli in
November 1993. It further found the applicant (the disappeared persons mother)
to be a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations undertaken. The
ECHR also saw the lack of any meaningful investigation by the State as a
violation of Article 13.[127]

Third, in the United States, the status of the prohibition on enforced

disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third,[128] which provides that [a]
State violates international law if, as a matter of State policy, it practices,
encourages, or condones (3) the murder or causing the disappearance of
individuals.[129] We significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the United
States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala[130] that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:

These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what
human rights they promised in the Charter to promote. Moreover, a U.N.
Declaration is, according to one authoritative definition, "a formal and solemn
instrument, suitable for rare occasions when principles of great and lasting
importance are being enunciated. Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the dichotomy of
binding treaty against non-binding pronouncement,' but is rather an
authoritative statement of the international community." Thus, a Declaration
creates an expectation of adherence, and "insofar as the expectation is
gradually justified by State practice, a declaration may by custom become
recognized as laying down rules binding upon the States." Indeed, several
commentators have concluded that the Universal Declaration has become,
in toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy)
of the International Convention on Civil and Political Rights (ICCPR), to which
the Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment)
and 9 (right to liberty and security of the person) of the ICCPR, and the act may
also amount to a crime against humanity.[131]

Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the

International Criminal Court (ICC) also covers enforced disappearances insofar
as they are defined as crimes against humanity,[132] i.e., crimes committed as
part of a widespread or systematic attack against any civilian population, with
knowledge of the attack. While more than 100 countries have ratified the Rome
Statute,[133] the Philippines is still merely a signatory and has not yet ratified it.
We note that Article 7(1) of the Rome Statute has been incorporated in the
statutes of other international and hybrid tribunals, including Sierra Leone
Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the
Extraordinary Chambers in the Courts of Cambodia.[134] In addition, the
implementing legislation of State Parties to the Rome Statute of the ICC has
given rise to a number of national criminal provisions also covering enforced
disappearance.[135]

While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific
crime, the above recital shows that enforced disappearance as a State
practice has been repudiated by the international community, so that the
ban on it is now a generally accepted principle of international law, which
we should consider a part of the law of the land, and which we should act
upon to the extent already allowed under our laws and the international
conventions that bind us.
The following civil or political rights under the Universal Declaration of
Human Rights, the ICCPR and the International Convention on Economic,
Social and Cultural Rights (ICESR) may be infringed in the course of a
disappearance:[136]

1) the right to recognition as a person before the law;

2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
 4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party,

provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have
his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop
the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such
remedies when granted. [Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the
obligation of the State to investigate ICCPR violations promptly, thoroughly,
and effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective

protection of Covenant rights, States Parties must ensure that
individuals also have accessible and effective remedies to
vindicate those rights The Committee attaches importance to States
Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under
domestic law Administrative mechanisms are particularly
required to give effect to the general obligation to investigate
allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies. A failure by
a State Party to investigate allegations of violations could in and of
itself give rise to a separate breach of the Covenant. Cessation of an
ongoing violation is an essential element of the right to an effective
remedy. [Emphasis supplied]
 The UN Human Rights Committee further stated in the same General
Comment No. 31 that failure to investigate as well as failure to bring to justice
the perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:[138]

18. Where the investigations referred to in paragraph 15 reveal

violations of certain Covenant rights, States Parties must ensure
that those responsible are brought to justice.As with failure to
investigate, failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate breach of
the Covenant. These obligations arise notably in respect of those
violations recognized as criminal under either domestic or
international law, such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and arbitrary killing (article
6) and enforced disappearance (articles 7 and 9 and, frequently,
6). Indeed, the problem of impunity for these violations, a matter of
sustained concern by the Committee, may well be an important
contributing element in the recurrence of the violations. When
committed as part of a widespread or systematic attack on a civilian
population, these violations of the Covenant are crimes against
humanity (see Rome Statute of the International Criminal Court,
article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that

the right to security of persons is a guarantee of the protection of ones right by
the government, held that:

The right to security of person in this third sense is a corollary of the

policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution. As the government is
the chief guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security of person is
rendered ineffective if government does not afford protection to these
rights especially when they are under threat. Protection includes
conducting effective investigations, organization of the
government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats thereof)
and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in

a serious mannerand not as a mere formality
preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its
own legal duty, not as a step taken by private
interests that depends upon the initiative of the
victim or his family or upon their offer of proof,
 without an effective search for the truth by the
government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the
right to security not only as a prohibition on the State against arbitrary
deprivation of liberty, but also as the imposition of a positive duty to afford
protection to the right to liberty. The Court notably quoted the following ECHR
ruling:

[A]ny deprivation of liberty must not only have been effected in

conformity with the substantive and procedural rules of national law
but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness... Having assumed
control over that individual, it is incumbent on the authorities to
account for his or her whereabouts. For this reason, Article 5 must
be seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a
person has been taken into custody and has not been seen
since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ
of Amparo, which the Court made effective on October 24, 2007. Although
the Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of enforced
disappearance, the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule,
the Court can provide remedies and protect the constitutional rights to life,
liberty and security that underlie every enforced disappearance.

Evidentiary Difficulties Posed

by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the
burden of proving the allegations of the petition for the Writ of Amparo by the
degree of proof required by the Amparo Rule, we shall discuss briefly the
unique evidentiary difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of the Amparo Rule
shall encounter.

These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences
in other jurisdictions show that the evidentiary difficulties are generally
threefold.

First, there may be a deliberate concealment of the identities of the

direct perpetrators.[141] Experts note that abductors are well organized, armed
and usually members of the military or police forces, thus:

The victim is generally arrested by the security forces or by persons

acting under some form of governmental authority. In many countries
the units that plan, implement and execute the program are generally
specialized, highly-secret bodies within the armed or security forces.
They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent
any interference by the "legal" police forces. These authorities take
their victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls.[142]

In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the
disappearance out of fear for their own lives.[143] We have had occasion to note
this difficulty in Secretary of Defense v. Manalo[144] when we acknowledged
that where powerful military officers are implicated, the hesitation of witnesses
to surface and testify against them comes as no surprise.

Second, deliberate concealment of pertinent evidence of the

disappearance is a distinct possibility; the central piece of evidence in an
enforced disappearance i.e., the corpus delicti or the victims body is usually
concealed to effectively thwart the start of any investigation or the progress of
one that may have begun.[145] The problem for the victims family is the States
virtual monopoly of access to pertinent evidence. The Inter-American Court of
Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced disappearance is the
deliberate use of the States power to destroy the pertinent evidence. The
IACHR described the concealment as a clear attempt by the State to commit the
perfect crime.[147]

Third is the element of denial; in many cases, the State authorities

deliberately deny that the enforced disappearance ever occurred.[148] Deniability
is central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victims human rights.[149] Experience shows that government
officials typically respond to requests for information about desaparecidos by
saying that they are not aware of any disappearance, that the missing people
may have fled the country, or that their names have merely been invented.[150]

These considerations are alive in our minds, as these are the difficulties
we confront, in one form or another, in our consideration of this case.

Evidence and Burden of Proof in

Enforced Disappearances Cases

Sections 13, 17 and 18 of the Amparo Rule define the nature of

an Amparoproceeding and the degree and burden of proof the parties to the case
carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required.
The parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that
ordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent who is a public official or employee must
prove that extraordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or evade
responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven
by substantial evidence, the court shall grant the privilege of the
writ and such reliefs as may be proper and appropriate; otherwise,
the privilege shall be denied. [Emphasis supplied]
 These characteristics namely, of being summary and the use of
substantial evidence as the required level of proof (in contrast to the usual
preponderance of evidence or proof beyond reasonable doubt in court
proceedings) reveal the clear intent of the framers of the Amparo Rule to have
the equivalent of an administrative proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required the duty of
public officials and employees to observe extraordinary diligence point, too, to
the extraordinary measures expected in the protection of constitutional rights
and in the consequent handling and investigation of extra-judicial killings and
enforced disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to properly

comply with the substance and form requirements of a Writ of Amparo petition,
as discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove
their defenses based on the standard of diligence required. The rebuttable case,
of course, must show that an enforced disappearance took place under
circumstances showing a violation of the victims constitutional rights to life,
liberty or security, and the failure on the part of the investigating authorities to
appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial

Relations[151] provided the Court its first opportunity to define the substantial
evidence required to arrive at a valid decision in administrative proceedings. To
directly quote Ang Tibay:

Substantial evidence is more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. [citations omitted] The statute provides that the rules
of evidence prevailing in courts of law and equity shall not be controlling. The
obvious purpose of this and similar provisions is to free administrative boards
from the compulsion of technical rules so that the mere admission of matter
which would be deemed incompetent in judicial proceedings would not
invalidate the administrative order. [citations omitted] But this assurance of a
desirable flexibility in administrative procedure does not go so far as to justify
orders without a basis in evidence having rational probative force. [Emphasis
supplied]
 In Secretary of Defense v. Manalo,[152] which was the Courts first petition
for a Writ of Amparo, we recognized that the full and exhaustive proceedings
that the substantial evidence standard regularly requires do not need to apply
due to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability
for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and
exhaustive proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects
of Amparo petitions are the unique difficulties presented by the nature of
enforced disappearances, heretofore discussed, which difficulties this Court
must frontally meet if the Amparo Rule is to be given a chance to achieve its
objectives. These evidentiary difficulties compel the Court to adopt standards
appropriate and responsive to the circumstances, without transgressing the due
process requirements that underlie every proceeding.

In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a

lack of direct evidence that the government of Honduras was involved in
Velasquez Rodriguez disappearance adopted a relaxed and informal evidentiary
standard, and established the rule that presumes governmental responsibility for
a disappearance if it can be proven that the government carries out a general
practice of enforced disappearances and the specific case can be linked to that
practice.[154] The IACHR took note of the realistic fact that enforced
disappearances could be proven only through circumstantial or indirect
evidence or by logical inference; otherwise, it was impossible to prove that an
individual had been made to disappear. It held:

130. The practice of international and domestic courts shows that

direct evidence, whether testimonial or documentary, is not the only
type of evidence that may be legitimately considered in reaching a
decision. Circumstantial evidence, indicia, and presumptions may
be considered, so long as they lead to conclusions consistent with
the facts.
 131. Circumstantial or presumptive evidence is especially
important in allegations of disappearances, because this type of
repression is characterized by an attempt to suppress all
information about the kidnapping or the whereabouts and fate of
the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo)
was carried out by agents who acted under cover of public authority, the
IACHR relied on circumstantial evidence including the hearsay testimony
of Zenaida Velsquez, the victims sister, who described Manfredos kidnapping
on the basis of conversations she had with witnesses who saw Manfredo
kidnapped by men in civilian clothes in broad daylight.She also told the Court
that a former Honduran military official had announced that Manfredo was
kidnapped by a special military squadron acting under orders of the Chief of the
Armed Forces.[155] The IACHR likewise considered the hearsay testimony of a
second witness who asserted that he had been told by a Honduran military
officer about the disappearance, and a third witness who testified that he had
spoken in prison to a man who identified himself as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the
evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the
admission and appreciation of evidence, as arbitrariness entails violation of
rights and cannot be used as an effective counter-measure; we only compound
the problem if a wrong is addressed by the commission of another wrong. On
the other hand, we cannot be very strict in our evidentiary rules and cannot
consider evidence the way we do in the usual criminal and civil cases;
precisely, the proceedings before us are administrative in nature where, as a
rule, technical rules of evidence are not strictly observed. Thus, while we must
follow the substantial evidence rule, we must observe flexibility in considering
the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test
of reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence
is not at all novel in the Philippine legal system. In child abuse cases, Section
28 of the Rule on Examination of a Child Witness[157] is expressly recognized as
an exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the
right of cross-examination by the adverse party. The admission of the statement
is determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child
witness.[158] These requisites for admission find their counterpart in the present
case under the above-described conditions for the exercise of flexibility in the
consideration of evidence, including hearsay evidence, in extrajudicial killings
and enforced disappearance cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we
have cited?

The Convention defines enforced disappearance as the arrest, detention,

abduction or any other form of deprivation of liberty by agents of the State or
by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law.[159] Under
this definition, the elements that constitute enforced disappearance are
essentially fourfold:[160]

(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons

acting with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of
the fate of the disappeared person; and
 (d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]

We find no direct evidence indicating how the victim actually

disappeared. The direct evidence at hand only shows that Tagitis went out of
the ASY Pension House after depositing his room key with the hotel desk and
was never seen nor heard of again. The undisputed conclusion, however, from
all concerned the petitioner, Tagitis colleagues and even the police authorities is
that Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and testimony,
as we shall discuss below.

We likewise find no direct evidence showing that operatives of PNP

CIDG Zamboanga abducted or arrested Tagitis. If at all, only the respondents
allegation that Tagistis was under CIDG Zamboanga custody stands on record,
but it is not supported by any other evidence, direct or circumstantial.

In her direct testimony, the respondent pointed to two sources of

information as her bases for her allegation that Tagistis had been placed under
government custody (in contrast with CIDG Zamboanga custody). The first was
an unnamed friend in Zamboanga (later identified as Col. Ancanan), who
occupied a high position in the military and who allegedly mentioned that
Tagitis was in good hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed to establish that Col.
Ancanan gave them any information that Tagitis was in government
custody. Col. Ancanan, for his part, admitted the meeting with the respondent
but denied giving her any information about the disappearance.

The more specific and productive source of information was Col.

Kasim, whom the respondent, together with her witness Mrs. Talbin, met in
Camp Katitipan in Davao City.To quote the relevant portions of the respondents
testimony:
 Q: Were you able to speak to other military officials regarding the
whereabouts of your husband particularly those in charge of
any records or investigation?

A: I went to Camp Katitipan in Davao City. Then one military

officer, Col. Casim, told me that my husband is being
abducted [sic] because he is under custodial investigation
because he is allegedly parang liason ng J.I., sir.

Q: What is J.I.?

A: Jemaah Islamiah, sir.

Q: Was there any information that was read to you during one of
those visits of yours in that Camp?

A: Col. Casim did not furnish me a copy of his report because he

said those reports are highly confidential, sir.

Q: Was it read to you then even though you were not furnished a
copy?

A: Yes, sir. In front of us, my friends.

Q: And what was the content of that highly confidential report?

A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao

City?

A: Yes, maam.

Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?

A: Yes, maam.

Q: And you mentioned that he showed you a report?

A: Yes, maam.

Q: Were you able to read the contents of that report?

A: He did not furnish me a copy of those [sic] report because

those [sic] were highly confidential. That is a military
report, maam.
 Q: But you were able to read the contents?

A: No. But he read it in front of us, my friends, maam.

Q: How many were you when you went to see Col. Kasim?

A: There were three of us, maam.

Q: Who were your companions?

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City,
Davao Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what was
your reaction and what did you do?

A: May binasa kasi sya that my husband has a parang meeting

with other people na parang mga terorista na mga
tao. Tapos at the end of the report is [sic] under custodial
investigation. So I told him Colonel, my husband is sick. He is
diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa
naghohold sa asawa ko na bigyan siya ng gamot, maam.[163]

xxxx
Q: You mentioned that you received information that Engineer
Tagitis is being held by the CIDG in Zamboanga, did you go to
CIDG Zamboanga to verify that information?

A: I did not go to CIDG Zamboanga. I went to Camp Karingal

instead. Enough na yun naeffort ko because I know that they
would deny it, maam.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to

corroborate her testimony that her husband was abducted and held under
custodial investigation by the PNP-CIDG Zamboanga City, viz:

Q: You said that you went to Camp Katitipan in Davao City

sometime November 24, 2007, who was with you when you
went there?

A: Mary Jean Tagitis, sir.

Q: Only the two of you?

A: No. We have some other companions. We were four at that time, sir.

Q: Who were they?

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

Q: Were you able to talk, see some other officials at Camp Katitipan
during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q: Were you able to talk to him?

A: Yes, sir.

Q: The four of you?

A: Yes, sir.

Q: What information did you get from Col. Kasim during that time?

A: The first time we met with [him] I asked him if he knew of the
exact location, if he can furnish us the location of Engr.
Tagitis. And he was reading this report. He told us that Engr.
Tagitis is in good hands. He is with the military, but he is
not certain whether he is with the AFP or PNP. He has this
serious case. He was charged of terrorism because he was
under surveillance from January 2007 up to the time that
he was abducted. He told us that he was under custodial
investigation. As Ive said earlier, he was seen under
surveillance from January. He was seen talking to Omar
Patik, a certain Santos of Bulacan who is also a Balik Islam
and charged with terrorism. He was seen carrying boxes of
medicines. Then we asked him how long will he be in
custodial investigation. He said until we can get some
information. But he also told us that he cannot give us that
report because it was a raw report. It was not official, sir.

Q: You said that he was reading a report, was that report in document
form, in a piece of paper or was it in the computer or what?

A: As far as I can see it, sir, it is written in white bond paper. I dont
know if it was computerized but Im certain that it was
typewritten. Im not sure if it used computer, fax or what, sir.

Q: When he was reading it to you, was he reading it line by line or he

was reading in a summary form?

A: Sometimes he was glancing to the report and talking to us, sir.[165]

xxxx
Q: Were you informed as to the place where he was being kept during
that time?
 A: He did not tell us where he [Tagitis] was being kept. But he
mentioned this Talipapao, Sulu, sir.

Q: After that incident, what did you do if any?

A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial
investigation, Engineer Tagitis will be released. [Emphasis
supplied][166]

Col. Kasim never denied that he met with the respondent and her friends,
and that he provided them information based on the input of an unnamed asset.
He simply claimed in his testimony that the informal letter he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG. He also stressed that the information he provided the respondent was
merely a raw report from barangay intelligence that still needed confirmation
and follow up as to its veracity.[167]

To be sure, the respondents and Mrs. Talbins testimonies were far from
perfect, as the petitioners pointed out. The respondent mistakenly characterized
Col. Kasim as a military officer who told her that her husband is being abducted
because he is under custodial investigation because he is allegedly parang
liason ng J.I. The petitioners also noted that Mrs. Talbins testimony imputing
certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but
he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr.
Supt. Kasim is a high ranking police officer who would certainly know that the
PNP is not part of the military.

Upon deeper consideration of these inconsistencies, however, what

appears clear to us is that the petitioners never really steadfastly disputed or
presented evidence to refute the credibility of the respondent and her witness,
Mrs. Talbin. The inconsistencies the petitioners point out relate, more than
anything else, to details that should not affect the credibility of the respondent
and Mrs. Talbin; the inconsistencies are not on material points.[168] We note, for
example, that these witnesses are lay people in so far as military and police
matters are concerned, and confusion between the police and the military is not
unusual. As a rule, minor inconsistencies such as these indicate truthfulness
rather than prevarication[169]and only tend to strengthen their probative value, in
contrast to testimonies from various witnesses dovetailing on every detail; the
latter cannot but generate suspicion that the material circumstances they
testified to were integral parts of a well thought of and prefabricated story.[170]

Based on these considerations and the unique evidentiary situation in

enforced disappearance cases, we hold it duly established that Col. Kasim
informed the respondent and her friends, based on the informants letter,
that Tagitis, reputedly a liaison for the JI and who had been under
surveillance since January 2007, was in good hands and under custodial
investigation for complicity with the JI after he was seen talking to one
Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with
terrorism. The respondents and Mrs. Talbins testimonies cannot simply be
defeated by Col. Kasims plain denial and his claim that he had destroyed his
informants letter, the critical piece of evidence that supports or negates the
parties conflicting claims. Col. Kasims admitted destruction of this letter
effectively, a suppression of this evidence raises the presumption that the letter,
if produced, would be proof of what the respondent claimed.[171] For brevity, we
shall call the evidence of what Col. Kasim reported to the respondent to be the
Kasim evidence.

Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis
was due to action with government participation, knowledge or consent and
that he was held for custodial investigation. We note in this regard that Col.
Kasim was never quoted to have said that the custodial investigation was by the
CIDG Zamboanga. The Kasim evidence only implies government intervention
through the use of the term custodial investigation, and does not at all point to
CIDG Zamboanga as Tagitis custodian.

Strictly speaking, we are faced here with a classic case of hearsay

evidence i.e., evidence whose probative value is not based on the personal
knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim
himself) but on the knowledge of some other person not on the witness stand
(the informant).[172]

To say that this piece of evidence is incompetent and inadmissible

evidence of what it substantively states is to acknowledge as the petitioners
effectively suggest that in the absence of any direct evidence, we should simply
dismiss the petition. To our mind, an immediate dismissal for this reason is no
different from a statement that the Amparo Rule despite its terms is ineffective,
as it cannot allow for the special evidentiary difficulties that are unavoidably
present in Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with
the intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice
but to meet the evidentiary difficulties inherent in enforced disappearances with
the flexibility that these difficulties demand.

To give full meaning to our Constitution and the rights it protects, we

hold that, as in Velasquez, we should at least take a close look at the available
evidence to determine the correct import of every piece of evidence even of
those usually considered inadmissible under the general rules of evidence
taking into account the surrounding circumstances and the test of reason that we
can use as basic minimum admissibility requirement. In the present case, we
should at least determine whether the Kasim evidence before us is relevant and
meaningful to the disappearance of Tagistis and reasonably consistent with
other evidence in the case.

The evidence about Tagitis personal circumstances surrounded him with

an air of mystery. He was reputedly a consultant of the World Bank and a
Senior Honorary Counselor for the IDB who attended a seminar in Zamboanga
and thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he
arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo
police that Tagitis may have taken funds given to him in trust for IDB
scholars. Prof Matli later on stated that he never accused Tagitis of taking away
money held in trust, although he confirmed that the IDB was seeking assistance
in locating funds of IDB scholars deposited in Tagitis personal account. Other
than these pieces of evidence, no other information exists in the records relating
to the personal circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal

circumstances. While the Amparo petition recited that he was taken away by
burly men believed to be police intelligence operatives, no evidence whatsoever
was introduced to support this allegation.Thus, the available direct evidence is
that Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived
in Jolo and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of

direct evidence on the above aspects of the case, as it supplies the gaps that
were never looked into and clarified by police investigation. It is the evidence,
too, that colors a simple missing person report into an enforced disappearance
case, as it injects the element of participation by agents of the State and thus
brings into question how the State reacted to the disappearance.

Denials on the part of the police authorities, and frustration on the part of
the respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the
police informed Kunnong that Tagitis could have been taken by the Abu Sayyaf
or other groups fighting the government. No evidence was ever offered on
whether there was active Jolo police investigation and how and why the Jolo
police arrived at this conclusion. The respondents own inquiry in Jolo yielded
the answer that he was not missing but was with another woman
somewhere. Again, no evidence exists that this explanation was arrived at
based on an investigation. As already related above, the inquiry with Col.
Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary
purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive
results. Col. Kasims story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without identifying his
abductor/s or the party holding him in custody. The more significant part of
Col. Kasims story is that the abduction came after Tagitis was seen talking with
Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with
terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao,
Sulu. None of the police agencies participating in the investigation ever
pursued these leads. Notably, TASK FORCE TAGITIS to which this
information was relayed did not appear to have lifted a finger to pursue these
aspects of the case.

More denials were manifested in the Returns on the writ to the CA made
by the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the
directives he sent to the ARMM Regional Director and the Regional Chief of
the CIDG on Tagitis, and these reports merely reiterated the open-ended initial
report of the disappearance. The CIDG directed a search in all of its divisions
with negative results. These, to the PNP Chief, constituted the exhaustion of all
possible efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part,
also reported negative results after searching all divisions and departments [of
the CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent
and thorough research, records show that no such person is being detained in
the CIDG or any of its department or divisions. PNP-PACER Chief PS Supt.
Leonardo A. Espina and PNP PRO ARMM Regional Director PC
Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they
essentially reported the results of their directives to their units to search for
Tagitis.

The extent to which the police authorities acted was fully tested when the
CA constituted TASK FORCE TAGITIS, with specific directives on what to
do. The negative results reflected in the Returns on the writ were again
replicated during the three hearings the CA scheduled. Aside from the
previously mentioned retraction that Prof. Matli made to correct his accusation
that Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in
his testimony that the CIDG consistently denied any knowledge or complicity
in any abduction and said that there was no basis to conclude that the CIDG or
any police unit had anything to do with the disappearance of Tagitis; he
likewise considered it premature to conclude that Tagitis simply ran away with
the money in his custody. As already noted above, the TASK FORCE notably
did not pursue any investigation about the personal circumstances of Tagitis, his
background in relation to the IDB and the background and activities of this
Bank itself, and the reported sighting of Tagistis with terrorists and his alleged
custody in Talipapao, Sulu. No attempt appears to have ever been made to look
into the alleged IDB funds that Tagitis held in trust, or to tap any of the assets
who are indispensable in investigations of this nature. These omissions and
negative results were aggravated by the CA findings that it was only as late as
January 28, 2008 or three months after the disappearance that the police
authorities requested for clear pictures of Tagitis. Col. Kasim could not attend
the trial because his subpoena was not served, despite the fact that he was
designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was
not then questioned. No investigation even an internal one appeared to have
been made to inquire into the identity of Col. Kasims asset and what he indeed
wrote.

We glean from all these pieces of evidence and developments a

consistency in the governments denial of any complicity in the
disappearance of Tagitis, disrupted only by the report made by Col. Kasim
to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually
denied that he ever made the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another distinctive trait that runs
through these developments is the governments dismissive approach to the
disappearance, starting from the initial response by the Jolo police to
Kunnongs initial reports of the disappearance, to the responses made to the
respondent when she herself reported and inquired about her husbands
disappearance, and even at TASK FORCE TAGITIS itself.
 As the CA found through TASK FORCE TAGITIS, the investigation was
at best haphazard since the authorities were looking for a man whose picture
they initially did not even secure. The returns and reports made to the CA fared
no better, as the CIDG efforts themselves were confined to searching for
custodial records of Tagitis in their various departments and divisions. To point
out the obvious, if the abduction of Tagitis was a black operation because it was
unrecorded or officially unauthorized, no record of custody would ever appear
in the CIDG records; Tagitis, too, would not be detained in the usual police or
CIDG detention places. In sum, none of the reports on record contains any
meaningful results or details on the depth and extent of the investigation
made. To be sure, reports of top police officials indicating the personnel and
units they directed to investigate can never constitute exhaustive and
meaningful investigation, or equal detailed investigative reports of the activities
undertaken to search for Tagitis. Indisputably, the police authorities from the
very beginning failed to come up to the extraordinary diligence that
the AmparoRule requires.

CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasims disclosure,

made in an unguarded moment, unequivocally point to some government
complicity in the disappearance. The consistent but unfounded denials and the
haphazard investigations cannot but point to this conclusion. For why would the
government and its officials engage in their chorus of concealment if the intent
had not been to deny what they already knew of the disappearance? Would not
an in-depth and thorough investigation that at least credibly determined the fate
of Tagitis be a feather in the governments cap under the circumstances of the
disappearance? From this perspective, the evidence and developments,
particularly the Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the UN
Declaration, heretofore cited and quoted,[173] the evidence at hand and the
developments in this case confirm the fact of the enforced disappearance and
government complicity, under a background of consistent and unfounded
government denials and haphazard handling. The disappearance as well
effectively placed Tagitis outside the protection of the law a situation that will
subsist unless this Court acts.

This kind of fact situation and the conclusion reached are not without
precedent in international enforced disappearance rulings. While the facts are
not exactly the same, the facts of this case run very close to those of Timurtas v.
Turkey,[174] a case decided by ECHR. The European tribunal in that case acted
on the basis of the photocopy of a post-operation report in finding that
Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by agents
(gendarmes) of the government of Turkey. The victim's father in this case
brought a claim against Turkey for numerous violations of the European
Convention, including the right to life (Article 2) and the rights to liberty and
security of a person (Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a leader of the
Kurdish Workers Party (PKK) in the Silopi region. The petition was filed in
southeast Turkey nearly six and one half years after the apprehension.
According to the father, gendarmes first detained Abdulvahap and then
transferred him to another detainment facility. Although there was no
eyewitness evidence of the apprehension or subsequent detainment, the
applicant presented evidence corroborating his version of events, including
a photocopy of a post-operation report signed by the commander of
gendarme operations in Silopi, Turkey. The report included a description of
Abdulvahap's arrest and the result of a subsequent interrogation during
detention where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps enforced
disappearance.

Following the lead of this Turkish experience - adjusted to the

Philippine legal setting and the Amparo remedy this Court has established,
as applied to the unique facts and developments of this case we believe and
so hold that the government in general, through the PNP and the PNP-
CIDG, and in particular, the Chiefs of these organizations together with
Col. Kasim, should be held fully accountable for the enforced
disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act
No. 6975, otherwise known as the PNP Law,[175] specifies the PNP as the
governmental office with the mandate to investigate and prevent crimes, effect
the arrest of criminal offenders, bring offenders to justice and assist in their
prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG
Region 9) testified, is the investigative arm of the PNP and is mandated to
investigate and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes.[176] Under the PNP
organizational structure, the PNP-CIDG is tasked to investigate all major crimes
involving violations of the Revised Penal Code and operates against organized
crime groups, unless the President assigns the case exclusively to the National
Bureau of Investigation (NBI).[177] No indication exists in this case showing that
the President ever directly intervened by assigning the investigation of Tagitis
disappearance exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members
were the ones who were remiss in their duties when the government completely
failed to exercise the extral'>To fully enforce the Amparo remedy, we refer this
case back to the CA for appropriate proceedings directed at the monitoring of
the PNP and the PNP-CIDG investigations and actions, and the validation of
their results through hearings the CA may deem appropriate to conduct. For
purposes of these investigations, the PNP/PNP-CIDG shall initially present to
the CA a plan of action for further investigation, periodically reporting the
detailed results of its investigation to the CA for its consideration and
action. On behalf of this Court, the CA shall pass upon: the need for the PNP
and the PNP-CIDG to make disclosures of matters known to them as indicated
in this Decision and as further CA hearings may indicate; the petitioners
submissions; the sufficiency of their investigative efforts; and submit to this
Court a quarterly report containing its actions and recommendations, copy
furnished the petitioners and the respondent, with the first reportdue at the end
of the first quarter counted from the finality of this Decision. The PNP and the
PNP-CIDG shall have one (1) full year to undertake their investigation. The CA
shall submit its full report for the consideration of this Court at the end of the
4th quarter counted from the finality of this Decision.

WHEREFORE, premises considered, we DENY the petitioners petition

for review on certiorari for lack of merit, and AFFIRM the decision of the
Court of Appeals dated March 7, 2008 under the following terms:

a. Recognition that the disappearance of Engineer Morced N. Tagitis

is an enforced disappearance covered by the Rule on the Writ
of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the
PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for
the enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material
facts known to the government and to their offices regarding the
disappearance of Engineer Morced N. Tagitis, and for the conduct
of proper investigations using extraordinary diligence, with the
obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case
and holding him accountable with the obligation to disclose
information known to him and to his assets in relation with the
enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP
and the PNP-CIDG shall initially present to the Court of Appeals a
 plan of action for further investigation, periodically reporting their
results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly
report with its recommendations, copy furnished the incumbent
PNP and PNP-CIDG Chiefs as petitioners and the respondent, with
the first report due at the end of the first quarter counted from the
finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigations; the Court of Appeals shall submit
its full report for the consideration of this Court at the end of the
4th quarter counted from the finality of this Decision;

These directives and those of the Court of Appeals made pursuant to this
Decision shall be given to, and shall be directly enforceable against, whoever
may be the incumbent Chiefs of the Philippine National Police and its Criminal
Investigation and Detection Group, under pain of contempt from this Court
when the initiatives and efforts at disclosure and investigation constitute less
than the extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature of Amparocases
and their varying attendant circumstances, these directives particularly, the
referral back to and monitoring by the CA are specific to this case and are not
standard remedies that can be applied to every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander

Yano, Commanding General, Philippine Army, and General Ruben Rafael,
Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is
hereby AFFIRMED.

SO ORDERED.

ARTURO D. BRION
Associate Justice

EN BANC
G.R. No. 80508 January 30, 1990

EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA

SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA
MACARAEG, LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO,
ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA RESTORAN,
VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO,
ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA
ESTARES, BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO
GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA
PESIMO, LOSENDO GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL
VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA
BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES,
ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners,
vs.
MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG.
GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS
GARCIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for prohibition with preliminary injunction to prohibit the military and
police officers represented by public respondents from conducting "Areal Target
Zonings" or "Saturation Drives" in Metro Manila.

The forty one (41) petitioners state that they are all of legal age, bona fide residents
of Metro Manila and taxpayers and leaders in their respective communities. They
maintain that they have a common or general interest in the preservation of the rule
of law, protection of their human rights and the reign of peace and order in their
communities. They claim to represent "the citizens of Metro Manila who have similar
interests and are so numerous that it is impracticable to bring them all before this
Court."

The public respondents, represented by the Solicitor General, oppose the petition
contending inter alia that petitioners lack standing to file the instant petition for they
are not the proper parties to institute the action.

According to the petitioners, the following "saturation drives" were conducted in

Metro Manila:

1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena

Streets, Tondo, Manila.

2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and
San Sebastian Street, Tondo, Manila.

3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.

4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along
Aroma Beach up to Happy Land, Magsaysay Village, Tondo, Manila.

5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and

Pacheco Street, Tondo, Manila.
 6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro
Manila.

7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village,

Tondo, Manila.

8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon

City.

9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.

10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International
Airport, Pasay City.

11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.

12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro
Manila.

According to the petitioners, the "areal target zonings" or saturation drives" are in
critical areas pinpointed by the military and police as places where the subversives
are hiding. The arrests range from seven (7) persons during the July 20 saturation
drive in Bangkusay, Tondo to one thousand five hundred (1,500) allegedly
apprehended on November 3 during the drive at Lower Maricaban, Pasay City. The
petitioners claim that the saturation drives follow a common pattern of human rights
abuses. In all these drives, it is alleged that the following were committed:

1. Having no specific target house in mind, in the dead of the night or early
morning hours, police and military units without any search warrant or warrant
of arrest cordon an area of more than one residence and sometimes whole
barangay or areas of barangay in Metro Manila. Most of them are in civilian
clothes and without nameplates or identification cards.

2. These raiders rudely rouse residents from their sleep by banging on the
walls and windows of their homes, shouting, kicking their doors open
(destroying some in the process), and then ordering the residents within to
come out of their respective residences.

3. The residents at the point of high-powered guns are herded like cows, the
men are ordered to strip down to their briefs and examined for tattoo marks
and other imagined marks.

4. While the examination of the bodies of the men are being conducted by the
raiders, some of the members of the raiding team force their way into each
and every house within the cordoned off area and then proceed to conduct
search of the said houses without civilian witnesses from the neighborhood.

5. In many instances, many residents have complained that the raiders

ransack their homes, tossing about the residents' belongings without total
regard for their value. In several instances, walls are destroyed, ceilings are
damaged in the raiders' illegal effort to 'fish' for incriminating evidence.

6. Some victims of these illegal operations have complained with increasing

frequency that their money and valuables have disappeared after the said
operations.
 7. All men and some women who respond to these illegal and unwelcome
intrusions are arrested on the spot and hauled off to waiting vehicles that take
them to detention centers where they are interrogated and 'verified.' These
arrests are all conducted without any warrants of arrest duly issued by a
judge, nor under the conditions that will authorize warrantless arrest. Some
hooded men are used to fingerpoint suspected subversives.

8. In some instances, arrested persons are released after the expiration of the
period wherein they can be legally detained without any charge at all. In other
instances, some arrested persons are released without charge after a few
days of arbitrary detention.

9. The raiders almost always brandish their weapons and point them at the
residents during these illegal operations.

10. Many have also reported incidents of on-the-spotbeatings, maulings and

maltreatment.

11. Those who are detained for further 'verification' by the raiders are
subjected to mental and physical torture to extract confessions and tactical
information. (Rollo, pp. 2-4)

The public respondents stress two points in their Comment which was also adopted
as their Memorandum after the petition was given due course.

First, the respondents have legal authority to conduct saturation drives. And second,
they allege that the accusations of the petitioners about a deliberate disregard for
human rights are total lies.

Insofar as the legal basis for saturation drives is concerned, the respondents cite
Article VII, Section 17 of the Constitution which provides:

The President shall have control of all the executive departments, bureaus
and offices. He shall ensure that the laws be faithfully executed. (Emphasis
supplied )

They also cite Section 18 of the same Article which provides:

The President shall be the Commander-in-Chief of all armed forces of the

Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. ...

There can be no question that under ordinary circumstances, the police action of the
nature described by the petitioners would be illegal and blantantly violative of the
express guarantees of the Bill of Rights. If the military and the police must conduct
concerted campaigns to flush out and catch criminal elements, such drives must be
consistent with the constitutional and statutory rights of all the people affected by
such actions.

There is, of course, nothing in the Constitution which denies the authority of the
Chief Executive, invoked by the Solicitor General, to order police actions to stop
unabated criminality, rising lawlessness, and alarming communist activities. The
Constitution grants to Government the power to seek and cripple subversive
movements which would bring down constituted authority and substitute a regime
where individual liberties are suppressed as a matter of policy in the name of
security of the State. However, all police actions are governed by the limitations of
the Bill of Rights. The Government cannot adopt the same reprehensible methods of
authoritarian systems both of the right and of the left, the enlargement of whose
spheres of influence it is trying hard to suppress. Our democratic institutions may still
be fragile but they are not in the least bit strengthened through violations of the
constitutional protections which are their distinguishing features.

In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated:

One of the most precious rights of the citizen in a free society is the right to be
left alone in the privacy of his own house. That right has ancient roots, dating
back through the mists of history to the mighty English kings in their
fortresses of power. Even then, the lowly subject had his own castle where he
was monarch of all he surveyed. This was his humble cottage from which he
could bar his sovereign lord and all the forces of the Crown.

That right has endured through the ages albeit only in a few libertarian
regimes. Their number, regrettably, continues to dwindle against the
onslaughts of authoritarianism. We are among the fortunate few, able again to
enjoy this right after the ordeal of the past despotism. We must cherish and
protect it all the more now because it is like a prodigal son returning.

That right is guaranteed in the following provisions of Article IV of the 1973

Constitution:

SEC. 3. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall not be violated, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined by the judge,
or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and the
persons or things to be seized.

xxx xxx xxx

Only last year, the Court again issued this reminder in 20th Century Fox Film
Corporation v. Court of Appeals (164 SCRA 655; 660- 661 [1988]):

This constitutional right protects a citizen against wanton and unreasonable

invasion of his privacy and liberty as to his person, papers and effects. We
have explained in the case of People vs. Burgos (144 SCRA 1)
citing Villanueva v. Querubin (48 SCRA 345) why the right is so important:

It is deference to one's personality that lies at the core of this right, but it could
be also looked upon as a recognition of a constitutionally protected area,
primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v.
United States, 385 US 293 [1966]) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence. In that haven of
refuge, his individuality can assert itself not only in the choice of who shall be
welcome but likewise in the kind of objects he wants around him. There the
state, however powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation, his house,
however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling
and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US
757 [1966], Brennan J. and Boyd v. United States, 11 6 630 [1886]). In the
same vein, Landynski in his authoritative work (Search and Seizure and the
Supreme Court [1966]), could fitly characterize constitutional right as the
 embodiment of a spiritual concept: the belief that to value the privacy of home
and person and to afford its constitutional protection against the long reach of
government is no less than to value human dignity, and that his privacy must
not be disturbed except in case of overriding social need, and then only under
stringent procedural safeguards. (ibid, p. 74.)

The decision of the United States Supreme Court in Rochin v. California, (342 US
165; 96 L. Ed. 183 [1952]) emphasizes clearly that police actions should not be
characterized by methods that offend a sense of justice. The court ruled:

Applying these general considerations to the circumstances of the present

case, we are compelled to conclude that the proceedings by which this
conviction was obtained do more than offend some fastidious squeamishness
or private sentimentalism about combatting crime too energetically. This is
conduct that shocks the conscience. Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents this course of proceeding by
agents of government to obtain evidence is bound to offend even hardened
sensibilities. They are methods too close to the rack and the screw to permit
of constitutional differentiation.

It is significant that it is not the police action perse which is impermissible and which
should be prohibited. Rather, it is the procedure used or in the words of the court,
methods which "offend even hardened sensibilities." In Breithaupt v. Abram (352 US
432, 1 L. Ed. 2nd 448 [1957]), the same court validated the use of evidence, in this
case blood samples involuntarily taken from the petitioner, where there was nothing
brutal or offensive in the taking. The Court stated:

Basically the distinction rests on the fact that there is nothing 'brutal' or
'offensive' in the taking of a sample of blood when done, as in this case,
under the protective eye of a physician. To be sure, the driver here was
unconscious when the blood was taken, but the absence of conscious
consent, without more, does not necessarily render the taking a violation of a
constitutional light; and certainly the rest was administered here would not be
considered offensive by even the most delicate. Furthermore, due process is
not measured by the yardstick of personal reaction or the sphygmogram of
the most sensitive person, but by that whole community sense of 'decency
and fairness that has been woven by common experience into the fabric of
acceptable conduct....

The individual's right to immunity from such invasion of his body was considered as
"far outweighed by the value of its deterrent effect" on the evil sought to be avoided
by the police action.

It is clear, therefore, that the nature of the affirmative relief hinges closely on the
determination of the exact facts surrounding a particular case.

The violations of human rights alleged by the petitioners are serious. If an orderly
procedure ascertains their truth, not only a writ of prohibition but criminal
prosecutions would immediately issue as a matter of course. A persistent pattern of
wholesale and gross abuse of civil liberties, as alleged in the petition, has no place
in civilized society.

On the other hand, according to the respondents, the statements made by the
petitioners are a complete lie.

The Solicitor General argues:

 This a complete lie.

Just the contrary, they had been conducted with due regard to human rights.
Not only that, they were intelligently and carefully planned months ahead of
the actual operation. They were executed in coordination with barangay
officials who pleaded with their constituents to submit themselves voluntarily
for character and personal verification. Local and foreign correspondents,
who had joined these operations, witnessed and recorded the events that
transpired relative thereto. (After Operation Reports: November 5, 1987,
Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14).
That is why in all the drives so far conducted, the alleged victims who
numbered thousands had not themselves complained.

In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo,
President Aquino branded all accusations of deliberate disregard for human
rights as 'total lies'. Here are excerpts from her strongest speech yet in
support of the military:

All accusations of a deliberate disregard for human rights have been shown-
up to be total lies.

...To our soldiers, let me say go out and fight, fight with every assurance that I
will stand by you through thick and thin to share the blame, defend your
actions, mourn the losses and enjoy with you the final victory that I am certain
will be ours.

You and I will see this through together.

I've sworn to defend and uphold the Constitution.

We have wasted enough time answering their barkings for it is still a long way
to lasting peace. . . . The dangers and hardships to our men in the field are
great enough as it is without having them distracted by tills worthless carping
at their backs.

Our counter-insurgency policy remains the same: economic development to

pull out the roots-and military operations to slash the growth — of the
insurgency.

The answer to terror is force — now.

Only feats of arms can buy us the time needed to make our economic and
social initiatives bear fruit. . . Now that the extreme Right has been defeated, I
expect greater vigor in the prosecution of the war against the communist
insurgency, even as we continue to watch our backs against attacks from the
Right. (Philippine Star, January 27, 1988, p. 1, Annex 15; emphasis supplied)

Viewed in the light of President Aquino's observation on the matter, it can be

said that petitioners misrepresent as human rights violations the military and
police's zealous vigilance over the people's right to live in peace and safety.
(Rollo, pp. 36-38)

Herein lies the problem of the Court. We can only guess the truth. Everything before
us consists of allegations. According to the petitioners, more than 3,407 persons
were arrested in the saturation drives covered by the petition. No estimates are
given for the drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz Compound,
Pasig; and Sun Valley Drive near the Manila International Airport area. Not one of
the several thousand persons treated in the illegal and inhuman manner described
by the petitioners appears as a petitioner or has come before a trial court to present
the kind of evidence admissible in courts of justice. Moreover, there must have been
tens of thousands of nearby residents who were inconvenienced in addition to the
several thousand allegedly arrested. None of those arrested has apparently been
charged and none of those affected has apparently complained.

A particularly intriguing aspect of the Solicitor General's comments is the statement

that local and foreign co-respondents actually joined the saturation drives and
witnessed and recorded the events. In other words, the activities sought to be
completely proscribed were in full view of media. The sight of hooded men allegedly
being used to fingerpoint suspected subversives would have been good television
copy. If true, this was probably effected away from the ubiquitous eye of the TV
cameras or, as the Solicitor General contends, the allegation is a "complete lie."

The latest attempt to stage a coup d'etat where several thousand members of the
Armed Forces of the Philippines sought to overthrow the present Government
introduces another aspect of the problem and illustrates quite clearly why those
directly affected by human rights violations should be the ones to institute court
actions and why evidence of what actually transpired should first be developed
before petitions are filed with this Court.

Where there is large scale mutiny or actual rebellion, the police or military may go in
force to the combat areas, enter affected residences or buildings, round up
suspected rebels and otherwise quell the mutiny or rebellion without having to
secure search warrants and without violating the Bill of Rights. This is exactly what
happened in the White Plains Subdivision and the commercial center of Makati
during the first week of December, 1989.

The areal target zonings in this petition were intended to flush out subversives and
criminal elements particularly because of the blatant assassinations of public officers
and police officials by elements supposedly coddled by the communities where the
"drives" were conducted.

It is clear from the pleadings of both petitioners and respondents, however, that
there was no rebellion or criminal activity similar to that of the attempted coup d'
etats. There appears to have been no impediment to securing search warrants or
warrants of arrest before any houses were searched or individuals roused from
sleep were arrested. There is no strong showing that the objectives sought to be
attained by the "areal zoning" could not be achieved even as the rights of squatter
and low income families are fully protected.

Where a violation of human rights specifically guaranteed by the Constitution is

involved, it is the duty of the court to stop the transgression and state where even
the awesome power of the state may not encroach upon the rights of the individual.
It is the duty of the court to take remedial action even in cases such as the present
petition where the petitioners do not complain that they were victims of the police
actions, where no names of any of the thousands of alleged victims are given, and
where the prayer is a general one to stop all police "saturation drives," as long as the
Court is convinced that the event actually happened.

The Court believes it highly probable that some violations were actually committed.
This is so inspite of the alleged pleas of barangay officials for the thousands of
residents "to submit themselves voluntarily for character and personal verification."
We cannot imagine police actions of the magnitude described in the petitions and
admitted by the respondents, being undertaken without some undisciplined soldiers
and policemen committing certain abuses. However, the remedy is not to stop all
police actions, including the essential and legitimate ones. We see nothing wrong in
police making their presence visibly felt in troubled areas. Police cannot respond to
riots or violent demonstrations if they do not move in sufficient numbers. A show of
force is sometimes necessary as long as the rights of people are protected and not
violated. A blanket prohibition such as that sought by the petitioners would limit all
police actions to one on one confrontations where search warrants and warrants of
arrests against specific individuals are easily procured. Anarchy may reign if the
military and the police decide to sit down in their offices because all concerted drives
where a show of force is present are totally prohibited.

The remedy is not an original action for prohibition brought through a taxpayers' suit.
Where not one victim complains and not one violator is properly charged, the
problem is not initially for the Supreme Court. It is basically one for the executive
departments and for trial courts. Well meaning citizens with only second hand
knowledge of the events cannot keep on indiscriminately tossing problems of the
executive, the military, and the police to the Supreme Court as if we are the
repository of all remedies for all evils. The rules of constitutional litigation have been
evolved for an orderly procedure in the vindication of rights. They should be
followed. If our policy makers sustain the contention of the military and the police
that occasional saturation drives are essential to maintain the stability of government
and to insure peace and order, clear policy guidelines on the behavior of soldiers
and policemen must not only be evolved, they should also be enforced. A method of
pinpointing human rights abuses and identifying violators is necessary.

The problem is appropriate for the Commission on Human Rights. A high level
conference should bring together the heads of the Department of Justice,
Department of National Defense and the operating heads of affected agencies and
institutions to devise procedures for the prevention of abuses.

Under the circumstances of this taxpayers' suit, there is no erring soldier or

policeman whom we can order prosecuted. In the absence of clear facts ascertained
through an orderly procedure, no permanent relief can be given at this time. Further
investigation of the petitioners' charges and a hard look by administration officials at
the policy implications of the prayed for blanket prohibition are also warranted.

In the meantime and in the face of a prima facie showing that some abuses were
probably committed and could be committed during future police actions, we have to
temporarily restrain the alleged banging on walls, the kicking in of doors, the herding
of half-naked men to assembly areas for examination of tattoo marks, the violation of
residences even if these are humble shanties of squatters, and the other alleged
acts which are shocking to the conscience.

WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of

Manila, Malabon, and Pasay City where the petitioners may present evidence
supporting their allegations and where specific erring parties may be pinpointed and
prosecuted.

Copies of this decision are likewise forwarded to the Commission on Human Rights,
the Secretary of Justice, the Secretary of National Defense, and the Commanding
General PC-INP for the drawing up and enforcement of clear guidelines to govern
police actions intended to abate riots and civil disturbances, flush out criminal
elements, and subdue terrorist activities.

In the meantime, the acts violative of human rights alleged by the petitioners as
committed during the police actions are ENJOINED until such time as permanent
rules to govern such actions are promulgated.
SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes,

Medialdea and Regalado, JJ., concur.
Griño-Aquino, J., I join JJ. Cruz, Padilla and Sarmiento's dissents.

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,

IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary,
Secretary of Justice, Immigration Commissioner, Secretary of National
Defense and Chief of Staff, respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only
legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile. In his
stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have not
been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of
Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col.
Canlas with the support of "Marcos loyalists" and the unseccessful plot of the
Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even from afar
and to the fanaticism and blind loyalty of their followers in the country. The
ratification of the 1987 Constitution enshrined the victory of "people power" and also
clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did
not, however, stop bloody challenges to the government. On August 28, 1987, Col.
Gregorio Honasan, one of the major players in the February Revolution, led a failed
coup that left scores of people, both combatants and civilians, dead. There were
several other armed sorties of lesser significance, but the message they conveyed
was the same — a split in the ranks of the military establishment that thraetened
civilian supremacy over military and brought to the fore the realization that civilian
government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements
and among rabid followers of Mr. Marcos. There are also the communist insurgency
and the seccessionist movement in Mindanao which gained ground during the rule
of Mr. Marcos, to the extent that the communists have set up a parallel government
of their own on the areas they effectively control while the separatist are virtually free
to move about in armed bands. There has been no let up on this groups'
determination to wrest power from the govermnent. Not only through resort to arms
but also to through the use of propaganda have they been successful in dreating
chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and
the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after Mrs. Aquino
assumed office, have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines
to die. But Mrs. Aquino, considering the dire consequences to the nation of his return
at a time when the stability of government is threatened from various directions and
the economy is just beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator
forced out of office and into exile after causing twenty years of political, economic
and social havoc in the country and who within the short space of three years seeks
to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents
to issue travel documents to Mr. Marcos and the immediate members of his family
and to enjoin the implementation of the President's decision to bar their return to the
Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning
to the Philippines.

According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:

1. Does the President have the power to bar the return of former
President Marcos and family to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest
of "national security, public safety or public health

a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger
to national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied

with in making such finding?

(2) Has there been prior notice to petitioners?

 (3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed

with, has the President's decision, including the grounds
upon which it was based, been made known to
petitioners so that they may controvert the same?

c. Is the President's determination that the return of former President

Marcos and his family to the Philippines is a clear and present danger
to national security, public safety, or public health a political question?

d. Assuming that the Court may inquire as to whether the return of

former President Marcos and his family is a clear and present danger
to national security, public safety, or public health, have respondents
established such fact?

3. Have the respondents, therefore, in implementing the President's

decision to bar the return of former President Marcos and his family,
acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act
which would effectively bar the return of former President Marcos and
his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to
return to the Philippines is guaranteed under the following provisions of the Bill of
Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property

without due process of law, nor shall any person be denied the equal
protection of the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.

The petitioners contend that the President is without power to impair the liberty of
abode of the Marcoses because only a court may do so "within the limits prescribed
by law." Nor may the President impair their right to travel because no law has
authorized her to do so. They advance the view that before the right to travel may be
impaired by any authority or agency of the government, there must be legislation to
that effect.

The petitioners further assert that under international law, the right of Mr. Marcos
and his family to return to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and
to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that

territory, have the right to liberty of movement and freedom to choose
his residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions

except those which are provided by law, are necessary to protect
national security, public order (order public), public health or morals or
the rights and freedoms of others, and are consistent with the other
rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own

country.

On the other hand, the respondents' principal argument is that the issue in this case
involves a political question which is non-justiciable. According to the Solicitor
General:

As petitioners couch it, the question involved is simply whether or not

petitioners Ferdinand E. Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these constitutional rights in
vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether

or not petitioners Ferdinand E. Marcos and family have the right to
return to the Philippines and reside here at this time in the face of the
determination by the President that such return and residence will
endanger national security and public safety.

It may be conceded that as formulated by petitioners, the question is

not a political question as it involves merely a determination of what
the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family
impinge on or collide with the more primordial and transcendental right
of the State to security and safety of its nationals, the question
becomes political and this Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return

to the Philippines and reestablish their residence here? This is clearly
a justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return

to the Philippines and reestablish their residence here even if their
return and residence here will endanger national security and public
safety? this is still a justiciable question which this Honorable Court
can decide.
 Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which
this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over
individual rights. In support thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect

the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life,

liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic, Anastacio
Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba,
King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos
Perez Jimenez of Venezuela were among the deposed dictators whose return to
their homelands was prevented by their governments. [See Statement of Foreign
Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp.
26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different light.
Although we give due weight to the parties' formulation of the issues, we are not
bound by its narrow confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines
of the right to travel and the import of the decisions of the U.S. Supreme Court in the
leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204]
and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the
right to travel and recognized exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from
the Philippines to other countries or within the Philippines. These are what the right
to travel would normally connote. Essentially, the right involved is the right to return
to one's country, a totally distinct right under international law, independent from
although related to the right to travel. Thus, the Universal Declaration of Humans
Rights and the International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of a state, the right to leave a
country, and the right to enter one's country as separate and distinct rights. The
Declaration speaks of the "right to freedom of movement and residence within the
borders of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand, the
Covenant guarantees the "right to liberty of movement and freedom to choose his
residence" [Art. 12(l)] and the right to "be free to leave any country, including his
own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to
protect national security, public order, public health or morals or enter qqqs own
country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore
be inappropriate to construe the limitations to the right to return to one's country in
the same context as those pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in
the Bill of Rights, which treats only of the liberty of abode and the right to travel, but
it is our well-considered view that the right to return may be considered, as a
generally accepted principle of international law and, under our Constitution, is part
of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily
deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they relate to
a conflict between executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not

there can be limitations on the right to travel in the absence of legislation to that
effect is rendered unnecessary. An appropriate case for its resolution will have to be
awaited.

Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under
the Constitution, to bar the Marcoses from returning to the Philippines. Then, we
shall determine, pursuant to the express power of the Court under the Constitution in
Article VIII, Section 1, whether or not the President acted arbitrarily or with grave
abuse of discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious threat to national
interest and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly
provides that "[the legislative power shall be vested in the Congress of the
Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of
the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law" [Art. VIII,
Sec. 1.] These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution.
For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out
"a grant of the legislative power means a grant of all legislative power; and a grant of
the judicial power means a grant of all the judicial power which may be exercised
under the government." [At 631-632.1 If this can be said of the legislative power
which is exercised by two chambers with a combined membership of more than two
hundred members and of the judicial power which is vested in a hierarchy of courts,
it can equally be said of the executive power which is vested in one official the
President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not
define what is meant by executive power" although in the same article it touches on
the exercise of certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute the laws, the
appointing power, the powers under the commander-in-chief clause, the power to
grant reprieves, commutations and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee foreign loans, the
power to enter into treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President
did the framers of the Constitution intend that the President shall exercise those
specific powers and no other? Are these se enumerated powers the breadth and
scope of "executive power"? Petitioners advance the view that the President's
powers are limited to those specifically enumerated in the 1987 Constitution. Thus,
they assert: "The President has enumerated powers, and what is not enumerated is
impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for
Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the
U.S. Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled
with the same problem. He said:

Article II is the most loosely drawn chapter of the Constitution. To

those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those who
think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.

We encounter this characteristic of Article 11 in its opening words:

"The executive power shall be vested in a President of the United
States of America." . . .. [The President: Office and Powers, 17871957,
pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the swing from
the presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is
President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it

remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos
according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive
branch, said Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the office, its
impact on the constitutional order, therefore altered from President to
President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and
hold the confidence of the electorate and to render an accounting to
 the nation and posterity determined whether he strengthened or
weakened the constitutional order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does
but, rather, that the consideration of tradition and the development of presidential
power under the different constitutions are essential for a complete understanding of
the extent of and limitations to the President's powers under the 1987 Constitution.
The 1935 Constitution created a strong President with explicitly broader powers than
the U.S. President. The 1973 Constitution attempted to modify the system of
government into the parliamentary type, with the President as a mere figurehead,
but through numerous amendments, the President became even more powerful, to
the point that he was also the de facto Legislature. The 1987 Constitution, however,
brought back the presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government
and whatever powers inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision of
law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact
what is traditionally considered as within the scope of "executive power." Corollarily,
the powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision
of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the
issue of who between the Governor-General of the Philippines and the Legislature
may vote the shares of stock held by the Government to elect directors in the
National Coal Company and the Philippine National Bank, the U.S. Supreme Court,
in upholding the power of the Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the

"board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything
which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties devolved
upon these members are vested by the Organic Act in the Governor-
General, it is clear that they are not legislative in character, and still
more clear that they are not judicial. The fact that they do not fall within
the authority of either of these two constitutes logical ground for
concluding that they do fall within that of the remaining one among
which the powers of government are divided ....[At 202-203; Emphasis
supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of
dissent we find reinforcement for the view that it would indeed be a folly to construe
the powers of a branch of government to embrace only what are specifically
mentioned in the Constitution:
 The great ordinances of the Constitution do not establish and divide
fields of black and white. Even the more specific of them are found to
terminate in a penumbra shading gradually from one extreme to the
other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may

disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were
it ever so desirable to do so, which I am far from believing that it is, or
that the Constitution requires. [At 210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he maintenance of
peace and order,the protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and
order, the protection of life, liberty and property, and the promotion of the general
welfare are essentially ideals to guide governmental action. But such does not mean
that they are empty words. Thus, in the exercise of presidential functions, in drawing
a plan of government, and in directing implementing action for these plans, or from
another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having
sworn to defend and uphold the Constitution, the President has the obligation under
the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have surrendered
their sovereign powers to the State for the common good. Hence, lest the officers of
the Government exercising the powers delegated by the people forget and the
servants of the people become rulers, the Constitution reminds everyone that
"[s]overeignty resides in the people and all government authority emanates from
them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to
return to the country are the deposed dictator and his family at whose door the
travails of the country are laid and from whom billions of dollars believed to be ill-
gotten wealth are sought to be recovered. The constitutional guarantees they invoke
are neither absolute nor inflexible. For the exercise of even the preferred freedoms
of speech and ofexpression, although couched in absolute terms, admits of limits
and must be adjusted to the requirements of equally important public interests
[Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his
duty to do anything not forbidden by the Constitution or the laws that the needs of
the nation demand [See Corwin, supra, at 153]. It is a power borne by the
President's duty to preserve and defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care that the laws are faithfully
executed [see Hyman, The American President, where the author advances the
view that an allowance of discretionary power is unavoidable in any government and
is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as
protector of the peace. Rossiter The American Presidency].The power of the
President to keep the peace is not limited merely to exercising the commander-in-
chief powers in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon. Wide discretion, within the bounds of
law, in fulfilling presidential duties in times of peace is not in any way diminished by
the relative want of an emergency specified in the commander-in-chief provision. For
in making the President commander-in-chief the enumeration of powers that follow
cannot be said to exclude the President's exercising as Commander-in- Chief
powers short of the calling of the armed forces, or suspending the privilege of the
writ of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's from
returning has been recognized by memembers of the Legislature, and is manifested
by the Resolution proposed in the House of Representatives and signed by 103 of
its members urging the President to allow Mr. Marcos to return to the Philippines "as
a genuine unselfish gesture for true national reconciliation and as irrevocable proof
of our collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The
Resolution does not question the President's power to bar the Marcoses from
returning to the Philippines, rather, it appeals to the President's sense of compassion
to allow a man to come home to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject
to certain exceptions, or of case law which clearly never contemplated situations
even remotely similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the President which
are implicit in and correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context, such request or demand
should submit to the exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty 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." [Art. VIII,
Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and broadens
the scope of judicial inquiry into areas which the Court, under previous constitutions,
would have normally left to the political departments to decide. But nonetheless
there remain issues beyond the Court's jurisdiction the determination of which is
exclusively for the President, for Congress or for the people themselves through a
plebiscite or referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such
action may appear. We cannot set aside a presidential pardon though it may appear
to us that the beneficiary is totally undeserving of the grant. Nor can we amend the
Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on
the political question doctrine. The deliberations of the Constitutional Commission
cited by petitioners show that the framers intended to widen the scope of judicial
review but they did not intend courts of justice to settle all actual controversies
before them. When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or
by law is for the latter alone to decide. In this light, it would appear clear that the
second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial
power," which specifically empowers the courts to determine whether or not there
has been a grave abuse of discretion on the part of any branch or instrumentality of
the government, incorporates in the fundamental law the ruling in Lansang v.
Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is
not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as
regards the suspension of the privilege, but only if and when he acts
within the sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to
check — not to supplant the Executive, or to ascertain merely whether
he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act
[At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist
factual bases for the President to conclude that it was in the national interest to bar
the return of the Marcoses to the Philippines. If such postulates do exist, it cannot be
said that she has acted, or acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and
the facts revealed during the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's
decision..

The Court cannot close its eyes to present realities and pretend that the country is
not besieged from within by a well-organized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the
murder with impunity of military men, police officers and civilian officials, to mention
only a few. The documented history of the efforts of the Marcose's and their
followers to destabilize the country, as earlier narrated in this ponencia bolsters the
conclusion that the return of the Marcoses at this time would only exacerbate and
intensify the violence directed against the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed
by particular groups. But it is the catalytic effect of the return of the Marcoses that
may prove to be the proverbial final straw that would break the camel's back. With
these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause
the escalation of violence against the State, that would be the time for the President
to step in and exercise the commander-in-chief powers granted her by the
Constitution to suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action against threats to its
existence if, though still nascent they are perceived as apt to become serious and
direct. Protection of the people is the essence of the duty of government. The
preservation of the State the fruition of the people's sovereignty is an obligation in
the highest order. The President, sworn to preserve and defend the Constitution and
to see the faithful execution the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy attributed
to the Marcoses and their close associates and relatives, many of whom are still
here in the Philippines in a position to destabilize the country, while the Government
has barely scratched the surface, so to speak, in its efforts to recover the enormous
wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot
ignore the continually increasing burden imposed on the economy by the excessive
foreign borrowing during the Marcos regime, which stifles and stagnates
development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common
knowledge and is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and lead to
total economic collapse. Given what is within our individual and common knowledge
of the state of the economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not
act arbitrarily or with grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time and under present
circumstances poses a serious threat to national interest and welfare and in
prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient
in a steaming cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court,
Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full
concurrence to the exhaustive and well-written ponencia of Mme. Justice Irene R.
Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an express
statutory grant. Their limits are likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law. History and
time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many
terms are applied to these powers: "residual," "inherent," 44 moral," "implied,"
"aggregate," "emergency." whatever they may be called, the fact is that these
powers exist, as they must if the governance function of the Executive Branch is to
be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be
viewed. By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but
pose a clear and present danger to public order and safety. One needs only to recall
the series of destabilizing actions attempted by the so-called Marcos loyalists as well
as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this.
The most publicized of these offensives is the Manila Hotel incident which occurred
barely five (5) months after the People's Power Revolution. Around 10,000 Marcos
supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and
Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-
taking of Arturo Tolentino as acting president of the Philippines. The public disorder
and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts
of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over
Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air
Base, while another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board several
vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200
soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who
forced their way through Gate 1 of Fort Bonifacio. They stormed into the army
stockade but having failed to convince their incarcerated members to unite in their
cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the
Aquino Government? Launched not by Marcos loyalists, but by another ultra-rightist
group in the military led by Col. Gregorio "Gringo" Honasan who remains at large to
date, this most serious attempt to wrest control of the government resulted in the
death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-
powered firearms and ammunition from the Camp Crame Armory during a raid
conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as
Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group
named CEDECOR to mobilize civilians from nearby provinces to act as blockading
forces at different Metro Manila areas for the projected link-up of Marcos military
loyalist troops with the group of Honasan. The pseudo "people power" movement
was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses,
their occurrence militates heavily against the wisdom of allowing the Marcoses'
return. Not only will the Marcoses' presence embolden their followers toward similar
actions, but any such action would be seized upon as an opportunity by other
enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an
offensive against the government. Certainly, the state through its executive branch
has the power, nay, the responsibility and obligation, to prevent a grave and serious
threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return
to the Philippines is one factor, which albeit, at first blush appears to be extra legal,
constitutes a valid justification for disallowing the requested return. I refer to the
public pulse. It must be remembered that the ouster of the Marcoses from the
Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military
tanks and firepower, kept vigil, prayed, and in countless manner and ways
contributed time, effort and money to put an end to an evidently untenable claim to
power of a dictator. The removal of the Marcoses from the Philippines was a moral
victory for the Filipino people; and the installation of the present administration, a
realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being
made to sympathy, compassion and even Filipino tradition. The political and
economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations.
Neither could public peace, order and safety be sacrificed for an individual's wish to
die in his own country. Verily in the balancing of interests, the scales tilt in favor of
presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever
invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now
hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the
rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting
him into a class by himself. The Constitution is a law for all classes of men at all
times. To have a person as one class by himself smacks of unequal protection of the
laws.

With all due respect for the majority in the Court, I believe that the issue before us is
one of rights and not of power. Mr. Marcos is insensate and would not live if
separated from the machines which have taken over the functions of his kidneys and
other organs. To treat him at this point as one with full panoply of power against
whom the forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of
national security and public safety which is hauntingly familiar because it was
pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under martial
law. There is, however, no showing of the existence of a law prescribing the limits of
the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr.
Marcos and which the military was able to readily quell, the respondents have not
pointed to any grave exigency which permits the use of untrammeled Governmental
power in this case and the indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question
beyond our jurisdiction to consider. They contend that the decision to ban former
President Marcos, and his family on grounds of national security and public safety is
vested by the Constitution in the President alone. The determination should not be
questioned before this Court. The President's finding of danger to the nation should
be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the

province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall
within its scope. It is frequently used to designate all questions that he
 outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or
executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]),
as follows:

In short, the term 'Political question' connotes, in legal parlance, what it

means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker
v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a
political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to

the settings in which the questions arise may describe a political
question, which identifies it as essentially a function of the separation
of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.

For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which
claim is not found in a specific provision is dangerous. Neither should we validate a
roving commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Government is bound
by the rule of law.

The respondents have not pointed to any provision of the Constitution which
commits or vests the determination of the question raised to us solely in the
President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because
no law has been enacted specifying the circumstances when the right may be
impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may

be found in the commander-in-chief clause which allows the President to call out the
armed forces in case of lawless violence, invasion or rebellion and to suspend the
privilege of the writ of habeas corpus or proclaim martial law in the event of invasion
or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former
President Marcos are engaging in rebellion or that he is in a position to lead them.
Neither is it claimed that there is a need to suspend the privilege of the writ of
habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his
family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for
the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a

Marcos "loyalist." The constant insinuations that the "loyalist" group is heavily funded
by Mr. Marcos and his cronies and that the "loyalists" engaging in rallies and
demonstrations have to be paid individual allowances to do so constitute the
strongest indication that the hard core "loyalists" who would follow Marcos right or
wrong are so few in number that they could not possibly destabilize the government,
much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a
"loyalist." It is in the best of Filipino customs and traditions to allow a dying person to
return to his home and breath his last in his native surroundings. Out of the 103
Congressmen who passed the House resolution urging permission for his return,
there are those who dislike Mr. Marcos intensely or who suffered under his regime.
There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the
Philippines and that such a return would deprive his fanatic followers of any further
reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the
light of the constitutional guarantee of liberty of abode and the citizen's right to travel
as against the respondents' contention that national security and public safety would
be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue
exclusively to the President, there is likewise no dearth of decisional data, no
unmanageable standards which stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of
changing the same within the limits prescribed by law may be impaired only upon a
lawful order of a court. Not by an executive officer. Not even by the President.
Section 6 further provides that the right to travel, and this obviously includes the right
to travel out of or back into the Philippines, cannot be impaired except in the interest
of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the
country to another or from the Philippines to a foreign country or from a foreign
country to the Philippines. The laws cited by the Solicitor General immigration,
health, quarantine, passports, motor vehicle, destierro probation, and parole are all
inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a
basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition.

We would simply be applying the Constitution, in the preservation and defense of
which all of us in Government, the President and Congress included, are sworn to
participate. Significantly, the President herself has stated that the Court has the last
word when it comes to constitutional liberties and that she would abide by our
decision.

As early as 1983, it was noted that this Court has not been very receptive to the
invocation of the political question doctrine by government lawyers. (See Morales,
Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a
doctrine of convenience, expediency, utility or subservience. Every major challenge
to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the
proclamation of martial law, the ratification of a new constitution, the arrest and
detention of "enemies of the State" without charges being filed against them, the
dissolution of Congress and the exercise by the President of legislative powers, the
trial of civilians for civil offenses by military tribunals, the seizure of some of the
country's biggest corporations, the taking over or closure of newspaper offices, radio
and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a
political question. It is indeed poetic justice that the political question doctrine so
often invoked by then President Marcos to justify his acts is now being used against
him and his family. Unfortunately, the Court should not and is not allowed to indulge
in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme
Court and statutory courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply because
they are too controversial, displeasing to the President or Congress, inordinately
unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question
doctrine allowed the Court during the Marcos years to fall back on prudence,
institutional difficulties, complexity of issues, momentousness of consequences or a
fear that it was extravagantly extending judicial power in the cases where it refused
to examine and strike down an exercise of authoritarian power. Parenthetically, at
least two of the respondents and their counsel were among the most vigorous critics
of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from
refusing to invalidate a political use of power through a convenient resort to the
question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may
refuse to resolve. There are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before us is not one of
them.
The Constitution requires the Court "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately,

considerations of national security do not readily lend themselves to the presentation
of proof before a court of justice. The vital information essential to an objective
determination is usually highly classified and it cannot be rebutted by those who
seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If
after investigating conditions in the Archipelago or any part thereof, the President
finds that public safety requires the suspension of the privilege of the writ of habeas
corpus, can the judicial department investigate the same facts and declare that no
such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second
paragraph of Section 1, Article VIII of the Constitution, the court granted the Solicitor
General's offer that the military give us a closed door factual briefing with a lawyer
for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad
Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can
ascertain whether or not the president acted arbitrarily in suspending
the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch]
to ascertain or evaluate the conditions prevailing in the Archipelago?
(At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the
facts. This was the method which had to be used in Lansang. This
Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied
on the very branch of the government whose act was in question to
obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no
situation to disprove them. It was a case of the defendant judging the
suit. After all is said and done, the attempt by its Court to determine
whether or not the President acted arbitrarily in suspending the writ
was a useless and futile exercise.

There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot
do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task
which it is not equipped to handle; it lends its prestige and credibility to
an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice
would be the only basis for determining the clear and present danger to national
security and public safety. The majority of the Court has taken judicial notice of the
Communist rebellion, the separatist movement, the rightist conspiracies, and urban
terrorism. But is it fair to blame the present day Marcos for these incidents? All these
problems are totally unrelated to the Marcos of today and, in fact, are led by people
who have always opposed him. If we use the problems of Government as excuses
for denying a person's right to come home, we will never run out of justifying
reasons. These problems or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy
in order to ascertain whether or not the respondents acted with grave abuse of
discretion. Nor are we forced to fall back upon judicial notice of the implications of a
Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a
clear and present danger to national security and public safety will arise if Mr.
Marcos and his family are allowed to return to the Philippines. It was only after the
present petition was filed that the alleged danger to national security and public
safety conveniently surfaced in the respondents' pleadings. Secondly, President
Aquino herself limits the reason for the ban Marcos policy to — (1) national welfare
and interest and (2) the continuing need to preserve the gains achieved in terms of
recovery and stability. (See page 7, respondents' Comment at page 73 of Rollo).
Neither ground satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance
simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to return at
this time" has not changed. (Manila Times, front page, February 7, 1989). On
February 11, 1989, the President is reported to have stated that "considerations of
the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return
of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political
gains," cannot be equated with national security or public order. They are too
generic and sweeping to serve as grounds for the denial of a constitutional right. The
Bill of Rights commands that the right to travel may not be impaired except on the
stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional
command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army.
Feeding as it does on injustice, ignorance, poverty, and other aspects at under-
development, the Communist rebellion is the clearest and most present danger to
national security and constitutional freedoms. Nobody has suggested that one way
to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to
flee the country because of "peoples' power." Yet, there is no move to arrest and
exile the leaders of student groups, teachers' organizations, pea ant and labor
federations, transport workers, and government unions whose threatened mass
actions would definitely endanger national security and the stability of government.
We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-
soldiers, the hard core loyalists, and other dissatisfied elements would suddenly
unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not
shown how extremists from the right and the left who loathe each other could find a
rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic
effect," which alone sustains the claim of danger to national security is fraught with
perilous implications. Any difficult problem or any troublesome person can be
substituted for the Marcos threat as the catalysing factor. The alleged confluence of
NPAs, secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the Government can state
that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is
denied. Tomorrow, a newspaper may be closed. Public assemblies may be
prohibited. Human rights may be violated. Yesterday, the right to travel of Senators
Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr.
Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's
decision to use the political question doctrine in a situation where it does not apply
raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed
Forces, has personally assured the Court that a rebellion of the above combined
groups will not succeed and that the military is on top of the situation. Where then is
the clear danger to national security? The Court has taken judicial notice of
something which even the military denies. There would be severe strains on military
capabilities according to General de Villa. There would be set-backs in the expected
eradication of the Communist threat. There would be other serious problems but all
can be successfully contained by the military. I must stress that no reference was
made to a clear and present danger to national security as would allow an overriding
of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute
defining the parameters of the right to travel and to freely choose one's abode has
constrained the President to fill in the vacuum, is too reminiscent of Amendment No.
6 of the martial law Constitution to warrant serious consideration. Amendment No. 6
allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that in his judgment required
immediate action. When the Bill of Rights provides that a right may not be impaired
except in the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are
prejudiced or require protection, the inaction of Congress does not give reason for
the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does
not obstruct us from ruling against an unconstitutional assertion of power by
Philippine officials. Let the United States apply its laws. We have to be true to our
own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his
heart, lungs, and kidneys may hasten his death. The physical condition of Mr.
Marcos does not justify our ignoring or refusing to act on his claim to a basic right
which is legally demandable and enforceable. For his own good, it might be
preferable to stay where he is. But he invokes a constitutional right. We have no
power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do

so would run counter to a constitutional guarantee. Besides, the petitioners are not
asking for passports and nothing else. Any travel documents or any formal lifting of
the Marcos ban as would allow international airlines to sell them tickets would
suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to
travel. I do not think we should differentiate the right to return home from the right to
go abroad or to move around in the Philippines. If at all, the right to come home must
be more preferred than any other aspect of the right to travel. It was precisely the
banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito
Salonga, and scores of other "undesirables" and "threats to national security" during
that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else
is new?" I submit that we now have a freedom loving and humane regime. I regret
that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do
not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list
of former dictators who were barred by their successors from returning to their
respective countries. There is no showing that the countries involved have
constitutions which guarantee the liberty of abode and the freedom to travel and that
despite such constitutional protections, the courts have validated the "ban a return"
policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as
President Aquino.

It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no
matter how odious or disgusting is, however, insufficient ground to ignore a
constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the
Government helpless to defend itself against a threat to national security? Does the
President have to suspend the privilege of the writ of habeas corpus or proclaim
martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in
court. The Government has more than ample powers under eixisting law to deal with
a person who transgresses the peace and imperils public safety. But the denial of
travel papers is not one of those powers because the Bill of Rights says so. There is
no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to

and live — and die — in his own country. I say this with a heavy heart but say it
nonetheless. That conviction is not diminished one whit simply because many
believe Marcos to be beneath contempt and undeserving of the very liberties he
flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before
us, nor can we resolve it. The question we must answer is whether or not, assuming
that Marcos is permitted to leave Hawaii (which may depend on the action we take
today), the respondents have acted with grave abuse of discretion in barring him
from his own country.

My reluctant conclusion is that they have, absent the proof they said they were
prepared to offer, but could not, that the petitioner's return would prejudice the
security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor
General if the government was prepared to prove the justification for opposing the
herein petition, i.e. that it had not acted arbitrarily. He said it was. Accordingly, the
Court, appreciating the classified nature of the information expected, scheduled a
closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former
Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return
of Marcos dead or alive would pose a threat to the national security as it had
alleged. The fears expressed by its representatives were based on mere conjectures
of political and economic destabilization without any single piece of concrete
evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual
bases for the President's decision" to bar Marcos's return. That is not my recollection
of the impressions of the Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap
backward and reinstating the discredited doctrine announced in Planas v. Gil (67
Phil. 62). This does not square with the announced policy of the Constitutional
Commission, which was precisely to limit rather than expand presidential powers, as
a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343
U.S. 579) that if it was true that the President had been granted the totality of
executive power, "it is difficult to see why our forefathers bothered to add several
specific items, including some trifling ones, . . . I cannot accept the view that this
clause is a grant in bulk of all conceivable executive power but regard it as an
allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise,
considering that Marcos is perhaps the most detested man in the entire history of
our country. But we are not concerned here with popularity and personalities. As a
judge, I am not swayed by what Justice Cardozo called the "hooting throng" that
may make us see things through the prisms of prejudice. I bear in mind that when I
sit in judgment as a member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars
that have not healed. And not even of fear, for fear is a phantom. That phantom did
not rise when the people stood fast at EDSA against the threat of total massacre in
defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades
as a professor of Constitutional Law. These principles have not changed simply
because I am now on the Court or a new administration is in power and the shoe is
on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines
against the prohibitions of the government then, Marcos is entitled to the same right
to travel and the liberty of abode that his adversary invoked. These rights are
guaranteed by the Constitution to all individuals, including the patriot and the
homesick and the prodigal son returning, and tyrants and charlatans and scoundrels
of every stripe.
I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we

ready to be also called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be

allowed to return to the Philippines may be resolved by answering two simple
questions: Does he have the right to return to his own country and should national
safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under
the Universal Declaration of Human Rights and the 1987 Constitution of the
Philippines, he has the right to return to his own country except only if prevented by
the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard
evidence, and all they can rely on is sheer speculation. True, there is some danger
but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted
from this country by popular will, can arouse an entire country to rise in morbid
sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the
former President should be allowed to return to our country under the conditions that
he and the members of his family be under house arrest in his hometown in Ilocos
Norte, and should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human
rights, for national discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the
conflict between the right of a Filipino, Ferdinand E. Marcos, to return to the
Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly
justiciable involving, as it does, colliding assertions of individual right and
governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto
Concepcion, incorporated in the 1987 Constitution, the new provision on the power
of Judicial Review, viz:

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. Article VIII,
Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every
Filipino to travel which, in the language of the Constitution, shall not be impaired
"except in the interest of national security, public safety, or public health, as may be
provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel
within the country, to travel out of the country and to return to the country
(Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications
attached by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even
require restrictions on the right to travel, and that the clause "as may be provided by
law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the
right to travel in the interest of national security, public safety or public health. I do
not, therefore, accept the petitioners' submission that, in the absence of enabling
legislation, the Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health, The
power of the State, in particular cases, to restrict travel of its citizens finds abundant
support in the police power of the state wich may be exercised to preserve and
maintain government as well as promote the general welfare of the greatest number
of people.

And yet, the power of the State, acting through a government in authority at any
given time, to restrict travel, even if founded on police power, cannot be absolute
and unlimited under all circumstances, much less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i.e., the right to return to the country. 1 Have the respondents
presented sufficient evidence to offset or override the exercise of this right invoked
by Mr. Marcos? Stated differently, have the respondents shown to the Court
sufficient factual bases and data which would justify their reliance on national
security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land
last 28 July 1989. 1 have searched, but in vain, for convincing evidence that would
defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It
appears to me that the apprehensions entertained and expressed by the
respondents, including those conveyed through the military, do not, with all due
respect, escalate to proportions of national security or public safety. They appear to
be more speculative than real, obsessive rather than factual. Moreover, such
apprehensions even if translated into realities, would be "under control," as admitted
to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my
opinion, will know how to handle any situation brought about by a political
recognition of Mr. Marcos' right to return, and his actual return, to this country. The
Court, in short, should not accept respondents' general apprehensions, concerns
and perceptions at face value, in the light of a countervailing and even irresistible,
specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to

be used as a pretext to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter.
By adopting the generally accepted principles of international law as part of the law
of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just
pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his own, and to
return to his country. This guarantee is reiterated in Art. XII, par. 2 of the
International Covenant on Civil and Political Rights which states that "no one shall
be arbitrarily deprived of the right to enter his own country." (Emphasis supplied)
"Arbitrary" or "arbitrarily" was specifically chosen by the drafters of the
Covenant 3 hoping to protect an individual against unexpected, irresponsible or
excessive encroachment on his rights by the state based on national traditions or a
particular sense of justice which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is
the duty of this Court to unquestioningly yield thereto, thus casting the controversy to
the realm of a political question. I do not agree. I believe that it is one case where
the human and constitutional light invoked by one party is so specific, substantial
and clear that it cannot be overshadowed, much less, nullified by simplistic
generalities; worse, the Court neglects its duty under the Constitution when it allows
the theory of political question to serve as a convenient, and yet, lame excuse for
evading what, to me, is its clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to
return to the Philippines in 1983 and, at the same time, credibly denythe right of Mr.
Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a
satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors
are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal,
political or otherwise, the following are the cogent and decisive propositions in this
case —

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be

buried in this country;

2. respondents have not shown any "hard evidence" or convincing

proof why his right as a Filipino to return should be denied him. All we
have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional
and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than

any issue today, requires of all members of the Court, in what appears
to be an extended political contest, the "cold neutrality of an impartial
judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution
and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of
the powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the
capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to
fear that my brethren, in passing judgment on the Marcoses (insofar as their
"capacity to stir trouble" is concerned), have overstepped the bounds of judicial
restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the
Court: "The right to return to one's country," pitted against "the right of travel and
freedom of abode", and their supposed distinctions under international law, as if
such distinctions, under international law in truth and in fact exist. There is only one
right involved here, whether under municipal or international law: the light of travel,
whether within one's own country, or to another, and the right to return thereto. The
Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex
non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive
have the power to deny a citizen his right to travel (back to the country or to
another)? It is a question that, in essence, involves the application, and no more, of
the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. 4

The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:

On these premises, we hold the view that although the 1987

Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving
at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising
the powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
"sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6

And finally:
 To the President, the problem is one of balancing the general welfare
and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the
needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter,
but has them by constitutional implication* the latter must yield to the paramountcy
of the Bill of Rights. According to Fernando: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a big of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to
its primordial aim a constitution must lay down the boundaries beyond which he's
forbidden territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may

override the direct mandate of the fundamental law. It will not suffice, so I submit, to
say that the President's plenitude of powers, as provided in the Constitution, or by
sheer constitutional implication, prevail over express constitutional commands.
"Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of public law,
"this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and
of changing the same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have specifically
declared so. As it is, the lone deterrents to the right in question are: (1) decree of
statute, or (2) lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred. It would also
have made the Constitution, as far as limits to the said right are concerned, come full
circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses
from the country; neither is there any court decree banishing him from Philippine
territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as
follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2)
"when necessary in the interest of national security, public safety, or public
health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to moderate
movement of citizens, which, Bernas says, justified such practices as "hamletting",
forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's
implied power. And, as it so appears, the right may be impaired only "within the limits
provided by law .15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against
excesses of officialdom is, in this case, a formidable barrier against Presidential
action. (Even on matters of State security, this Constitution prescribes limits to
Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question
that emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose
a threat to the national security , public safety, or public health?" What appears in
the records are vehement insistences that Marcos does pose a threat to the national
good and yet, at the same time, we have persistent claims, made by the military top
brass during the lengthy closed-door hearing on July 25, 1989, that "this
Government will not fall" should the former first family in exile step on Philippine soil.
which is which?

At any rate, it is my opinion that we can not leave that determination solely to the
Chief Executive. The Court itself must be content that the threat is not only clear, but
more so, present.18

That the President "has the obligation under the Constitution to protect the people ...
" 19 is an obligation open to no doubt. But the question, and so I ask again and again,
is: From whom? If we say "from Marcos," we unravel chinks in our political armor. It
also flies in the face of claims, so confidently asserted, that "this Government will not
fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted
allies, implementors of martial law, and pathetic parasites of the ex-first couple are,
in fact, in the Government, in the comfort of its offices, and or at the helm of its key
agencies. Let us not, therefore, joke ourselves of moral factors warranting the
continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of
individual liberties. 20 As I indicated, not one shred of evidence, let alone solid
evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as
far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence" 22 is a bigger fantasy: It
not only summons the martial law decisions of pre-"EDSA" (especially with respect
to the detestable Amendment No. 6), it is inconsistent with the express provisions of
the commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly
reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least,
for Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only
"offense" was that he openly and unabatedly criticized the dictator, his associates,
and his military machinery. He would pay dearly for it; he was arrested and detained,
without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp
Crame. In his last week in detention, he was, grudgingly, hospitalized (prison
hospital) and confined for chronic asthma. The deplorable conditions of his
imprisonment exacerbated his delicate health beyond cure. He died, on November
11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos'

ruthless apparatchiki. On August 14, 1979, he was, along with former President
Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24 in the midst of the distribution of Ang
Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of
martial rule, published by him and former Congressman Concordia, authored by
President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of
criminal complaints filed by the several military officers named in the "condemned"
book as having violated the human rights of dissenters, and for other crimes, in the
office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that
can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would
leave him 'unpunished for his crimes to country and countrymen. If punishment is
due, let this leadership inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of
travel and movement and the liberty of abode. 25 We would have betrayed our own
Ideals if we denied Marcos his rights. It is his constitutional right, a right that can not
be abridged by personal hatred, fear, founded or unfounded, and by speculations of
the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no
more of human rights violations be repeated against any one, friend or foe. In a
democratic framework, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President,
under the present Constitution and existing laws, does not have it. Mandamus, I
submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado,

JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient
in a steaming cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court,
Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full
concurrence to the exhaustive and well-written ponencia of Mme. Justice Irene R.
Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an express
statutory grant. Their limits are likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law. History and
time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many
terms are applied to these powers: "residual," "inherent," 44 moral," "implied,"
"aggregate," 'emergency." whatever they may be called, the fact is that these powers
exist, as they must if the governance function of the Executive Branch is to be
carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be
viewed. By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but
pose a clear and present danger to public order and safety. One needs only to recall
the series of destabilizing actions attempted by the so-called Marcos loyalists as well
as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this.
The most publicized of these offensives is the Manila Hotel incident which occurred
barely five (5) months after the People's Power Revolution. Around 10,000 Marcos
supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and
Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-
taking of Arturo Tolentino as acting president of the Philippines. The public disorder
and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts
of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over
Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air
Base, while another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board several
vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200
soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who
forced their way through Gate 1 of Fort Bonifacio. They stormed into the army
stockade but having failed to convince their incarcerated members to unite in their
cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the
Aquino Government? Launched not by Marcos loyalists, but by another ultra-rightist
group in the military led by Col. Gregorio "Gringo" Honasan who remains at large to
date, this most serious attempt to wrest control of the government resulted in the
death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-
powered firearms and ammunition from the Camp Crame Armory during a raid
conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as
Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group
named CEDECOR to mobilize civilians from nearby provinces to act as blockading
forces at different Metro Manila areas for the projected link-up of Marcos military
loyalist troops with the group of Honasan. The pseudo "people power" movement
was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses,
their occurrence militates heavily against the wisdom of allowing the Marcoses'
return. Not only will the Marcoses' presence embolden their followers toward similar
actions, but any such action would be seized upon as an opportunity by other
enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an
offensive against the government. Certainly, the state through its executive branch
has the power, nay, the responsibility and obligation, to prevent a grave and serious
threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return
to the Philippines is one factor, which albeit, at first blush appears to be extra legal,
constitutes a valid justification for disallowing the requested return. I refer to the
public pulse. It must be remembered that the ouster of the Marcoses from the
Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military
tanks and firepower, kept vigil, prayed, and in countless manner and ways
contributed time, effort and money to put an end to an evidently untenable claim to
power of a dictator. The removal of the Marcoses from the Philippines was a moral
victory for the Filipino people; and the installation of the present administration, a
realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being
made to sympathy, compassion and even Filipino tradition. The political and
economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations.
Neither could public peace, order and safety be sacrificed for an individual's wish to
die in his own country. Verily in the balancing of interests, the scales tilt in favor of
presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever
invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now
hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the
rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting
him into a class by himself. The Constitution is a law for all classes of men at all
times. To have a person as one class by himself smacks of unequal protection of the
laws.

With all due respect for the majority in the Court, I believe that the issue before us is
one of rights and not of power. Mr. Marcos is insensate and would not live if
separated from the machines which have taken over the functions of his kidneys and
other organs. To treat him at this point as one with full panoply of power against
whom the forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of
national security and public safety which is hauntingly familiar because it was
pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under martial
law. There is, however, no showing of the existence of a law prescribing the limits of
the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr.
Marcos and which the military was able to readily quell, the respondents have not
pointed to any grave exigency which permits the use of untrammeled Governmental
power in this case and the indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question
beyond our jurisdiction to consider. They contend that the decision to ban former
President Marcos, and his family on grounds of national security and public safety is
vested by the Constitution in the President alone. The determination should not be
questioned before this Court. The President's finding of danger to the nation should
be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxxxxxxxx
 It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall
within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or
executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]),
as follows:

In short, the term 'Political question' connotes, in legal parlance, what it

means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice Wilham J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker
v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a
political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to

the settings in which the questions arise may describe a political
question, which Identifies it as essentially a function of the separation
of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.

For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which
claim is not found in a specific provision is dangerous. Neither should we validate a
roving commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Govern ment is bound
by the rule of law.

The respondents have not pointed to any provision of the Constitution which
commits or vests the determination of the question raised to us solely in the
President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because
no law has been enacted specifying the circumstances when the right may be
impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may

be found in the commander-in-chief clause which allows the President to call out the
armed forces in case of lawless violence, invasion or rebellion and to suspend the
privilege of the writ of habeas corpus or proclaim martial law in the event of invasion
or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former
President Marcos are engaging in rebellion or that he is in a position to lead them.
Neither is it claimed that there is a need to suspend the privilege of the writ of
habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his
family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for
the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a

Marcos "loyalist." The constant insinuations that the "loyalist" group is heavily funded
by Mr. Marcos and his cronies and that the "loyalists" engaging in rallies and
demonstrations have to be paid individual allowances to do so constitute the
strongest indication that the hard core "loyalists" who would follow Marcos right or
wrong are so few in number that they could not possibly destabilize the government,
much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a
"loyalist." It is in the best of Filipino customs and traditions to allow a dying person to
return to his home and breath his last in his native surroundings. Out of the 103
Congressmen who passed the House resolution urging permission for his return,
there are those who dislike Mr. Marcos intensely or who suffered under his regime.
There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the
Philippines and that such a return would deprive his fanatic followers of any further
reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the
light of the constitutional guarantee of liberty of abode and the citizen's right to travel
as against the respondents' contention that national security and public safety would
be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue
exclusively to the President, there is likewise no dearth of decisional data, no
unmanageable standards which stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of
changing the same within the limits prescribed by law may be impaired only upon a
lawful order of a court. Not by an executive officer. Not even by the President.
Section 6 further provides that the right to travel, and this obviously includes the right
to travel out of or back into the Philippines, cannot be impaired except in the interest
of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the
country to another or from the Philippines to a foreign country or from a foreign
country to the Philippines. The laws cited by the Solicitor General immigration,
health, quarantine, passports, motor vehicle, destierro probation, and parole are all
inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a
basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition.

We would simply be applying the Constitution, in the preservation and defense of
which all of us in Government, the President and Congress included, are sworn to
participate. Significantly, the President herself has stated that the Court has the last
word when it comes to constitutional liberties and that she would abide by our
decision.

As early as 1983, it was noted that this Court has not been very receptive to the
invocation of the political question doctrine by government lawyers. (See Morales,
Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a
doctrine of convenience, expediency, utility or subservience. Every major challenge
to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the
proclamation of martial law, the ratification of a new constitution, the arrest and
detention of "enemies of the State" without charges being filed against them, the
dissolution of Congress and the exercise by the President of legislative powers, the
trial of civilians for civil offenses by military tribunals, the seizure of some of the
country's biggest corporations, the taking over or closure of newspaper offices, radio
and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a
political question. It is indeed poetic justice that the political question doctrine so
often invoked by then President Marcos to justify his acts is now being used against
him and his family. Unfortunately, the Court should not and is not allowed to indulge
in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme
Court and statutory courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply because
they are too controversial, displeasing to the President or Congress, inordinately
unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question
doctrine allowed the Court during the Marcos years to fall back on prudence,
institutional difficulties, complexity of issues, momentousness of consequences or a
fear that it was extravagantly extending judicial power in the cases where it refused
to examine and strike down an exercise of authoritarian power. Parenthetically, at
least two of the respondents and their counsel were among the most vigorous critics
of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from
refusing to invalidate a political use of power through a convenient resort to the
question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may
refuse to resolve. There are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before us is not one of
them.

The Constitution requires the Court "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately,

considerations of national security do not readily lend themselves to the presentation
of proof before a court of justice. The vital information essential to an objective
determination is usually highly classified and it cannot be rebutted by those who
seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If
after investigating conditions in the Archipelago or any part thereof, the President
finds that public safety requires the suspension of the privilege of the writ of habeas
corpus, can the judicial department investigate the same facts and declare that no
such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second
paragraph of Section 1, Article VIII of the Constitution, the court granted the Solicitor
General's offer that the military give us a closed door factual briefing with a lawyer
for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad
Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can
ascertain whether or not the president acted arbitrarily in suspending
the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch]
to ascertain or evaluate the conditions prevailing in the Archipelago?
(At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the
facts. This was the method which had to be used in Lansang. This
Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied
on the very branch of the government whose act was in question to
obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no
situation to disprove them. It was a case of the defendant judging the
suit. After all is said and done, the attempt by its Court to determine
whether or not the President acted arbitrarily in suspending the writ
was a useless and futile exercise.

There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot
do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task
 which it is not equipped to handle; it lends its prestige and credibility to
an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice
would be the only basis for determining the clear and present danger to national
security and public safety. The majority of the Court has taken judicial notice of the
Communist rebellion, the separatist movement, the rightist conspiracies, and urban
terrorism. But is it fair to blame the present day Marcos for these incidents? All these
problems are totally unrelated to the Marcos of today and, in fact, are led by people
who have always opposed him. If we use the problems of Government as excuses
for denying a person's right to come home, we will never run out of justifying
reasons. These problems or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy
in order to ascertain whether or not the respondents acted with grave abuse of
discretion. Nor are we forced to fall back upon judicial notice of the implications of a
Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a
clear and present danger to national security and public safety will arise if Mr.
Marcos and his family are allowed to return to the Philippines. It was only after the
present petition was filed that the alleged danger to national security and public
safety conveniently surfaced in the respondents' pleadings. Secondly, President
Aquino herself limits the reason for the ban Marcos policy to-41) national welfare
and interest and (2) the continuing need to preserve the gains achieved in terms of
recovery and stability. (See page 7, respondents' Comment at page 73 of Rollo).
Neither ground satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance
simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to return at
this time" has not changed. (Manila Times, front page, February 7, 1989). On
February 11, 1989, the President is reported to have stated that "considerations of
the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return
of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political
gains," cannot be equated with national security or public order. They are too
generic and sweeping to serve as grounds for the denial of a constitutional right. The
Bill of Rights commands that the right to travel may not be impaired except on the
stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional
command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army.
Feeding as it does on injustice, ignorance, poverty, and other aspects at under-
development, the Communist rebellion is the clearest and most present danger to
national security and constitutional freedoms. Nobody has suggested that one way
to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to
flee the country because of "peoples' power." Yet, there is no move to arrest and
exile the leaders of student groups, teachers' organizations, pea ant and labor
federations, transport workers, and government unions whose threatened mass
actions would definitely endanger national security and the stability of government.
We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-
soldiers, the hard core loyalists, and other dissatisfied elements would suddenly
unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not
shown how extremists from the right and the left who loathe each other could find a
rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic
effect," which alone sustains the claim of danger to national security is fraught with
perilous implications. Any difficult problem or any troublesome person can be
substituted for the Marcos threat as the catalysing factor. The alleged confluence of
NPAS, secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the Government can state
that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is
denied. Tomorrow, a newspaper may be closed. Public assemblies may be
prohibited. Human rights may be violated. Yesterday, the right to travel of Senators
Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr.
Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's
decision to use the political question doctrine in a situation where it does not apply
raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed
Forces, has personally assured the Court that a rebellion of the above combined
groups will not succeed and that the military is on top of the situation. Where then is
the clear danger to national security? The Court has taken judicial notice of
something which even the military denies. There would be severe strains on military
capabilities according to General de Villa. There would be set-backs in the expected
eradication of the Communist threat. There would be other serious problems but all
can be successfully contained by the military. I must stress that no reference was
made to a clear and present danger to national security as would allow an overriding
of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute
defining the parameters of the right to travel and to freely choose one's abode has
constrained the President to fill in the vacuum, is too reminiscent of Amendment No.
6 of the martial law Constitution to warrant serious consideration. Amendment No. 6
allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that in his judgment required
immediate action. When the Bill of Rights provides that a right may not be impaired
except in the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are
prejudiced or require protection, the inaction of Congress does not give reason for
the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does
not obstruct us from ruling against an unconstitutional assertion of power by
Philippine officials. Let the United States apply its laws. We have to be true to our
own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his
heart, lungs, and kidneys may hasten his death. The physical condition of Mr.
Marcos does not justify our ignoring or refusing to act on his claim to a basic right
which is legally demandable and enforceable. For his own good, it might be
preferable to stay where he is. But he invokes a constitutional right. We have no
power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do
so would run counter to a constitutional guarantee. Besides, the petitioners are not
asking for passports and nothing else. Any travel documents or any formal lifting of
the Marcos ban as would allow international airlines to sell them tickets would
suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to
travel. I do not think we should differentiate the right to return home from the right to
go abroad or to move around in the Philippines. If at all, the right to come home must
be more preferred than any other aspect of the right to travel. It was precisely the
banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito
Salonga, and scores of other "undesirables" and "threats to national security" during
that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else
is new?" I submit that we now have a freedom loving and humane regime. I regret
that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do
not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list
of former dictators who were barred by their successors from returning to their
respective countries. There is no showing that the countries involved have
constitutions which guarantee the liberty of abode and the freedom to travel and that
despite such constitutional protections, the courts have validated the "ban a return"
policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as
President Aquino.

It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no
matter how odious or disgusting is, however, insufficient ground to ignore a
constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the
Government helpless to defend itself against a threat to national security? Does the
President have to suspend the privilege of the writ of habeas corpus or proclaim
martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in
court. The Government has more than ample powers under eixisting law to deal with
a person who transgresses the peace and imperils public safety. But the denial of
travel papers is not one of those powers because the Bill of Rights says so. There is
no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to

and live-and die-in his own country. I say this with a heavy heart but say it
nonetheless. That conviction is not diminished one whit simply because many
believe Marcos to be beneath contempt and undeserving of the very liberties he
flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before
us, nor can we resolve it. The question we must answer is whether or not, assuming
that Marcos is permitted to leave Hawaii (which may depend on the action we take
today), the respondents have acted with grave abuse of discretion in barring him
from his own country.

My reluctant conclusion is that they have, absent the proof they said they were
prepared to offer, but could not, that the petitioner's return would prejudice the
security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor
General if the government was prepared to prove the justification for opposing the
herein petition, i. that it had not acted arbitrarily. He said it was. Accordingly, the
Court, appreciating the classified nature of the information expected, scheduled a
closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former
Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return
of Marcos dead or alive would pose a threat to the national security as it had
alleged. The fears expressed by its representatives were based on mere conjectures
of political and economic destabilization without any single piece of concrete
evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual
bases for the President's decision" to bar Marcos's return. That is not my recollection
of the impressions of the Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap
backward and reinstating the discredited doctrine announced in Planas v. Gil (67
Phil. 62). This does not square with the announced policy of the Constitutional
Commission, which was precisely to limit rather than expand presidential powers, as
a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343
U.S. 579) that if it was true that the President had been granted the totality of
executive power, "it is difficult to see why our forefathers bothered to add several
specific items, including some trifling ones, . . . I cannot accept the view that this
clause is a grant in bulk of all conceivable executive power but regard it as an
allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise,
considering that Marcos is perhaps the most detested man in the entire history of
our country. But we are not concerned here with popularity and personalities. As a
judge, I am not swayed by what Justice Cardozo called the "hooting throng" that
may make us see things through the prisms of prejudice. I bear in mind that when I
sit in judgment as a member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars
that have not healed. And not even of fear, for fear is a phantom. That phantom did
not rise when the people stood fast at EDSA against the threat of total massacre in
defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades
as a professor of Constitutional Law. These principles have not changed simply
because I am now on the Court or a new administration is in power and the shoe is
on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines
against the prohibitions of the government then, Marcos is entitled to the same right
to travel and the liberty of abode that his adversary invoked. These rights are
guaranteed by the Constitution to all individuals, including the patriot and the
homesick and the prodigal son returning, and tyrants and charlatans and scoundrels
of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we

ready to be also called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be

allowed to return to the Philippines may be resolved by answering two simple
questions: Does he have the right to return to his own country and should national
safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under
the Universal Declaration of Human Rights and the 1987 Constitution of the
Philippines, he has the right to return to his own country except only if prevented by
the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard
evidence, and all they can rely on is sheer speculation. True, there is some danger
but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted
from this country by popular will, can arouse an entire country to rise in morbid
sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the
former President should be allowed to return to our country under the conditions that
he and the members of his family be under house arrest in his hometown in Ilocos
Norte, and should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human
rights, for national discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the
conflict between the right of a Filipino, Ferdinand E. Marcos, to return to the
Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly
justiciable involving, as it does, colliding assertions of individual right and
governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto
Concepcion, incorporated in the 1987 Constitution, the new provision on the power
of Judicial Review, viz:

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. Article VIII,
Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every
Filipino to travel which, in the language of the Constitution, shall not be impaired
"except in the interest of national security, public safety, or public health, as may be
provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel
within the country, to travel out of the country and to return to the country
(Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications
attached by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even
require restrictions on the right to travel, and that the clause "as may be provided by
law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the
right to travel in the interest of national security, public safety or public health. I do
not, therefore, accept the petitioners' submission that, in the absence of enabling
legislation, the Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health, The
power of the State, in particular cases, to restrict travel of its citizens finds abundant
support in the police power of the state wich may be exercised to preserve and
maintain government as well as promote the general welfare of the greatest number
of people.

And yet, the power of the State, acting through a government in authority at any
given time, to restrict travel, even if founded on police power, cannot be absolute
and unlimited under all circumstances, much less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i.e., the right to return to the country. 1 Have the respondents
presented sufficient evidence to offset or override the exercise of this right invoked
by Mr. Marcos? Stated differently, have the respondents shown to the Court
sufficient factual bases and data which would justify their reliance on national
security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land
last 28 July 1989. 1 have searched, but in vain, for convincing evidence that would
defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It
appears to me that the apprehensions entertained and expressed by the
respondents, including those conveyed through the military, do not, with all due
respect, escalate to proportions of national security or public safety. They appear to
be more speculative than real, obsessive rather than factual. Moreover, such
apprehensions even if translated into realities, would be "under control," as admitted
to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my
opinion, will know how to handle any situation brought about by a political
recognition of Mr. Marcos' right to return, and his actual return, to this country. The
Court, in short, should not accept respondents' general apprehensions, concerns
and perceptions at face value, in the light of a countervailing and even irresistible,
specific, clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to
be used as a pretext to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter.
By adopting the generally accepted principles of international law as part of the law
of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just
pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his own, and to
return to his country. This guarantee is reiterated in Art. XII, par. 2 of the
International Covenant on Civil and Political Rights which states that "no one shall
be arbitrarily deprived of the right to enter his own country." (Emphasis supplied)
"Arbitrary" or "arbitrarily" was specifically chosen by the drafters of the
Covenant 3 hoping to protect an individual against unexpected, irresponsible or
excessive encroachment on his rights by the state based on national traditions or a
particular sense of justice which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is
the duty of this Court to unquestioningly yield thereto, thus casting the controversy to
the realm of a political question. I do not agree. I believe that it is one case where
the human and constitutional light invoked by one party is so specific, substantial
and clear that it cannot be overshadowed, much less, nullified by simplistic
generalities; worse, the Court neglects its duty under the Constitution when it allows
the theory of political question to serve as a convenient, and yet, lame excuse for
evading what, to me, is its clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to
return to the Philippines in 1983 and, at the same time, credibly denythe right of Mr.
Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a
satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors
are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal,
political or otherwise, the following are the cogent and decisive propositions in this
case-

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be

buried in this country;

2. respondents have not shown any "hard evidence" or con- vincing

proof why his right as a Filipino to return should be denied him. All we
have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional
and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than

any issue today, requires of all members of the Court, in what appears
to be an extended political contest, the "cold neutrality of an impartial
judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution
and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of
the powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the
capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to
fear that my brethren, in passing judgment on the Marcoses (insofar as their
"capacity to stir trouble" is concerned), have overstepped the bounds of judicial
restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the
Court: "The right to return to one's country," pitted against "the right of travel and
freedom of abode", and their supposed distinctions under international law, as if
such distinctions, under international law in truth and in fact exist. There is only one
right involved here, whether under municipal or international law: the light of travel,
whether within one's own country, or to another, and the right to return thereto. The
Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex
non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive
have the power to deny a citizen his right to travel (back to the country or to
another)? It is a question that, in essence, involves the application, and no more, of
the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. 4

The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:

On these premises, we hold the view that although the 1987

Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving
at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising
the powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
 "sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare

and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the
needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter,
but has them by constitutional implication* the latter must yield to the paramountcy
of the Bill of Rights. According to Fernando: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a big of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to
its primordial aim a constitution must lay down the boundaries beyond which he's
forbidden territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may

override the direct mandate of the fundamental law. It will not suffice, so I submit, to
say that the President's plenitude of powers, as provided in the Constitution, or by
sheer constitutional implication, prevail over express constitutional commands.
"Clearly," so I borrow J.B.L. Reyes, in Ms own right, a titan in the field of public law,
"this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and
of changing the same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have specifically
declared so. As it is, the lone deterrents to the right in question are: (1) decree of
statute, or (2) lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred. It would also
have made the Constitution, as far as limits to the said right are concerned, come full
circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses
from the country; neither is there any court decree banishing him from Philippine
territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as
follows:
 Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2)
"when necessary in the interest of national security, public safety, or public
health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to moderate
movement of citizens, which, Bernas says, justified such practices as "hamletting",
forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's
implied power. And, as it so appears, the right may be impaired only "within the limits
provided by law .15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against
excesses of officialdom is, in this case, a formidable barrier against Presidential
action. (Even on matters of State security, this Constitution prescribes limits to
Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question
that emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose
a threat to the national security , public safety, or public health?" What appears in
the records are vehement insistences that Marcos does pose a threat to the national
good and yet, at the same time, we have persistent claims, made by the military top
brass during the lengthy closed-door hearing on July 25, 1989, that "this
Government will not fall" should the former first family in exile step on Philippine soil.
which is which?

At any rate, it is my opinion that we can not leave that determination solely to the
Chief Executive. The Court itself must be content that the threat is not only clear, but
more so, present.18

That the President "has the obligation under the Constitution to protect the people ...
" 19 is an obligation open to no doubt. But the question, and so I ask again and again,
is: From whom? If we say "from Marcos," we unravel chinks in our political armor. It
also flies in the face of claims, so confidently asserted, that "this Government will not
fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted
allies, implementors of martial law, and pathetic parasites of the ex-first couple are,
in fact, in the Government, in the comfort of its offices, and or at the helm of its key
agencies. Let us not, therefore, joke ourselves of moral factors warranting the
continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of
individual liberties. 20 As I indicated, not one shred of evidence, let alone solid
evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as
far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence" 22 is a bigger fantasy: It
not only summons the martial law decisions of pre-"EDSA" (especially with respect
to the detestable Amendment No. 6), it is inconsistent with the express provisions of
the commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly
reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least,
for Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only
"offense" was that he openly and unabatedly criticized the dictator, his associates,
and his military machinery. He would pay dearly for it; he was arrested and detained,
without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp
Crame. In his last week in detention, he was, grudgingly, hospitalized (prison
hospital) and confined for chronic asthma. The deplorable conditions of his
imprisonment exacerbated his delicate health beyond cure. He died, on November
11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos'

ruthless apparatchiki. On August 14, 1979, he was, along with former President
Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24 in the midst of the distribution of Ang
Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of
martial rule, published by him and former Congressman Concordia, authored by
President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of
criminal complaints filed by the several military officers named in the "condemned"
book as having violated the human rights of dissenters, and for other crimes, in the
office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that
can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would
leave him 'unpunished for Ms crimes to country and countrymen. If punishment is
due, let this leadership inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of
travel and movement and the liberty of abode. 25 We would have betrayed our own
Ideals if we denied Marcos his rights. It is his constitutional right, a right that can not
be abridged by personal hatred, fear, founded or unfounded, and by speculations of
the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no
more of human rights violations be repeated against any one, friend or foe. In a
democratic framwork, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President,
under the present Constitution and existing laws, does not have it. Mandamus, I
submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado,

JJ., concur.

Feliciano, J., is on leave.

 EN BANC

G.R. No. 213847 August 18, 2015

JUAN PONCE ENRILE, Petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

BERSAMIN, J.:

The decision whether to detain or release an accused before and during trial is
ultimately an incident of the judicial power to hear and determine his criminal case.
The strength of the Prosecution's case, albeit a good measure of the accused’s
propensity for flight or for causing harm to the public, is subsidiary to the primary
objective of bail, which is to ensure that the accused appears at trial. 1

The Case

Before the Court is the petition for certiorari filed by Senator Juan Ponce Enrile to
assail and annul the resolutions dated July 14, 20142 and August 8, 20143 issued by
the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238, where he has
been charged with plunder along with several others. Enrile insists that the
resolutions, which respectively denied his Motion To Fix Bail and his Motion For
Reconsideration, were issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.

Antecedents

On June 5, 2014, the Office of the Ombudsman charged Enrile and several others
with plunder in the Sandiganbayan on the basis of their purported involvement in the
diversion and misuse of appropriations under the Priority Development Assistance
Fund (PDAF).4 On June 10, 2014 and June 16, 2014, Enrile respectively filed his
Omnibus Motion5 and Supplemental Opposition,6 praying, among others, that he be
allowed to post bail should probable cause be found against him. The motions were
heard by the Sandiganbayan after the Prosecution filed its Consolidated Opposition.7

On July 3, 2014, the Sandiganbaya n issued its resolution denying Enrile’s motion,
particularly on the matter of bail, on the ground of its prematurity considering that
Enrile had not yet then voluntarily surrendered or been placed under the custody of
the law.8 Accordingly, the Sandiganbayan ordered the arrest of Enrile.9

On the same day that the warrant for his arrest was issued, Enrile voluntarily
surrendered to Director Benjamin Magalong of the Criminal Investigation and
Detection Group (CIDG) in Camp Crame, Quezon City, and was later on confined at
the Philippine National Police (PNP) General Hospital following his medical
examination.10

Thereafter, Enrile filed his Motion for Detention at the PNP General Hospital , 11 and
his Motion to Fix Bail ,12 both dated July 7, 2014, which were heard by the
Sandiganbayan on July 8, 2014.13 In support of the motions, Enrile argued that he
should be allowed to post bail because: (a) the Prosecution had not yet established
that the evidence of his guilt was strong; (b) although he was charged with plunder,
the penalty as to him would only be reclusion temporal , not reclusion perpetua ; and
(c) he was not a flight risk, and his age and physical condition must further be
seriously considered.

On July 14, 2014, the Sandiganbayan issued its first assailed resolution denying
Enrile’s Motion to Fix Bail, disposing thusly:

x x x [I]t is only after the prosecution shall have presented its evidence and the Court
shall have made a determination that the evidence of guilt is not strong against
accused Enrile can he demand bail as a matter of right. Then and only then will the
Court be duty-bound to fix the amount of his bail.

To be sure, no such determination has been made by the Court. In fact, accused
Enrile has not filed an application for bail. Necessarily, no bail hearing can even
commence. It is thus exceedingly premature for accused Enrile to ask the Court to
fix his bail.

Accused Enrile next argues that the Court should grant him bail because while he is
charged with plunder, "the maximum penalty that may be possibly imposed on him is
reclusion temporal, not reclusion perpetua." He anchors this claim on Section 2 of
R.A. No. 7080, as amended, and on the allegation that he is over seventy (70) years
old and that he voluntarily surrendered. "Accordingly, it may be said that the crime
charged against Enrile is not punishable by reclusion perpetua, and thus bailable."

The argument has no merit.

x x x [F]or purposes of bail, the presence of mitigating circumstance/s is not taken

into consideration. These circumstances will only be appreciated in the imposition of
the proper penalty after trial should the accused be found guilty of the offense
charged. x x x

Lastly, accused Enrile asserts that the Court should already fix his bail because he is
not a flight risk and his physical condition must also be seriously considered by the
Court.

Admittedly, the accused’s age, physical condition and his being a flight risk are
among the factors that are considered in fixing a reasonable amount of bail.
However, as explained above, it is premature for the Court to fix the amount of bail
without an anterior showing that the evidence of guilt against accused Enrile is not
strong.

WHEREFORE, premises considered, accused Juan Ponce Enrile’s Motion to Fix

Bail dated July 7, 2014 is DENIED for lack of merit.

SO ORDERED.14

On August 8, 2014, the Sandiganbayan issued it s second assailed resolution to

deny Enrile’s motion for reconsideration filed vis-à-vis the July 14, 2014 resolution.15

Enrile raises the following grounds in support of his petition for certiorari , namely:

A. Before judgment of the Sandiganbayan, Enrile is bailable as a matter

of right. Enrile may be deemed to fall within the exception only upon
concurrence of two (2) circumstances: (i) where the offense is
punishable by reclusion perpetua, and (ii) when evidence of guilt is
strong.
 B. The prosecution failed to show clearly and conclusively that Enrile, if
ever he would be convicted, is punishable by reclusion perpetua; hence,
Enrile is entitled to bail as a matter of right.

C. The prosecution failed to show clearly and conclusively that evidence

of Enrile’s guilt (if ever) is strong; hence, Enrile is entitled to bail as a
matter of right.

D. At any rate, Enrile may be bailable as he is not a flight risk. 16

Enrile claims that before judgment of conviction, an accused is entitled to bail as

matter of right; th at it is the duty and burden of the Prosecution to show clearly and
conclusively that Enrile comes under the exception and cannot be excluded from
enjoying the right to bail; that the Prosecution has failed to establish that Enrile, if
convicted of plunder, is punishable by reclusion perpetua considering the presence
of two mitigating circumstances – his age and his voluntary surrender; that the
Prosecution has not come forward with proof showing that his guilt for the crime of
plunder is strong; and that he should not be considered a flight risk taking into
account that he is already over the age of 90, his medical condition, and his social
standing.

In its Comment ,17 the Ombudsman contends that Enrile’s right to bail is discretionary
as he is charged with a capital offense; that to be granted bail, it is mandatory that a
bail hearing be conducted to determine whether there is strong evidence of his guilt,
or the lack of it; and that entitlement to bail considers the imposable penalty,
regardless of the attendant circumstances.

Ruling of the Court

The petition for certiorari is meritorious.

1.
Bail protects the right of the accused to
due process and to be presumed innocent

In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved.18 The presumption of innocence is rooted in the guarantee of due
process, and is safeguarded by the constitutional right to be released on bail, 19 and
further binds the court to wait until after trial to impose any punishment on the
accused.20

It is worthy to note that bail is not granted to prevent the accused from committing
additional crimes.[[21] The purpose of bail is to guarantee the appearance of the
accused at the trial, or whenever so required by the trial court. The amount of bail
should be high enough to assure the presence of the accused when so required, but
it should be no higher than is reasonably calculated to fulfill this purpose. 22 Thus, bail
acts as a reconciling mechanism to accommodate both the accused’s interest in his
provisional liberty before or during the trial, and the society’s interest in assuring the
accused’s presence at trial.23

2.
Bail may be granted as a
matter of right or of discretion

The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of the
Constitution, viz.:
x x x All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not be required.

This constitutional provision is repeated in Section 7, Rule 11424 of the Rules of Court
, as follows:

Section 7. Capital offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. — No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, shall be admitted to
bail when evidence of guilt is strong, regardless of the stage of the criminal
prosecution.

A capital offense in the context of the rule refers to an offense that, under the law
existing at the time of its commission and the application for admission to bail, may
be punished with death.25

The general rule is, therefore, that any person, before being convicted of any
criminal offense, shall be bailable, unless he is charged with a capital offense, or
with an offense punishable with reclusion perpetua or life imprisonment, and the
evidence of his guilt is strong. Hence, from the moment he is placed under arrest, or
is detained or restrained by the officers of the law, he can claim the guarantee of his
provisional liberty under the Bill of Rights, and he retains his right to bail unless he is
charged with a capital offense, or with an offense punishable with reclusion perpetua
or life imprisonment, and the evidence of his guilt is strong.26 Once it has been
established that the evidence of guilt is strong, no right to bail shall be recognized. 27

As a result, all criminal cases within the competence of the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court
are bailable as matter of right because these courts have no jurisdiction to try capital
offenses, or offenses punishable with reclusion perpetua or life imprisonment.
Likewise, bail is a matter of right prior to conviction by the Regional Trial Court
(RTC) for any offense not punishable by death, reclusion perpetua , or life
imprisonment, or even prior to conviction for an offense punishable by death,
reclusion perpetua , or life imprisonment when evidence of guilt is not strong. 28

On the other hand, the granting of bail is discretionary: (1) upon conviction by the
RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment;29 or (2) if the RTC has imposed a penalty of imprisonment exceeding
six years, provided none of the circumstances enumerated under paragraph 3 of
Section 5, Rule 114 is present, as follows:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has

committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence,
or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or

conditional pardon;

(d) That the circumstances of hi s case indicate the probability of flight if

released on bail; or
 (e) That there is undue risk that he may commit another crime during the
pendency of the appeal.

3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion

For purposes of admission to bail, the determination of whether or not evidence of

guilt is strong in criminal cases involving capital offenses, or offenses punishable
with reclusion perpetua or life imprisonment lies within the discretion of the trial
court. But, as the Court has held in Concerned Citizens v. Elma ,30 "such discretion
may be exercised only after the hearing called to ascertain the degree of guilt of the
accused for the purpose of whether or not he should be granted provisional liberty."
It is axiomatic, therefore, that bail cannot be allowed when its grant is a matter of
discretion on the part of the trial court unless there has been a hearing with notice to
the Prosecution.31The indispensability of the hearing with notice has been aptly
explained in Aguirre v. Belmonte, viz. :32

x x x Even before its pronouncement in the Lim case, this Court already ruled in
People vs. Dacudao, etc., et al. that a hearing is mandatory before bail can be
granted to an accused who is charged with a capital offense, in this wise:

The respondent court acted irregularly in granting bail in a murder case without any
hearing on the motion asking for it, without bothering to ask the prosecution for its
conformity or comment, as it turned out later, over its strong objections. The court
granted bail on the sole basis of the complaint and the affidavits of three policemen,
not one of whom apparently witnessed the killing. Whatever the court possessed at
the time it issued the questioned ruling was intended only for prima facie determining
whether or not there is sufficient ground to engender a well-founded belief that the
crime was committed and pinpointing the persons who probably committed it.
Whether or not the evidence of guilt is strong for each individual accused still has to
be established unless the prosecution submits the issue on whatever it has already
presented. To appreciate the strength or weakness of the evidence of guilt, the
prosecution must be consulted or heard. It is equally entitled as the accused to due
process.

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and
reasonable opportunity for the prosecution to refute it. Among them are the nature
and circumstances of the crime, character and reputation of the accused, the weight
of the evidence against him, the probability of the accused appearing at the trial,
whether or not the accused is a fugitive from justice, and whether or not the accused
is under bond in other cases. (Section 6, Rule 114, Rules of Court) It is highly
doubtful if the trial court can appreciate these guidelines in an ex-parte determination
where the Fiscal is neither present nor heard.

The hearing, which may be either summary or otherwise, in the discretion of the
court, should primarily determine whether or not the evidence of guilt against the
accused is strong. For this purpose, a summary hearing means:

x x x such brief and speedy method of receiving and considering the evidence of
guilt as is practicable and consistent with the purpose of hearing which is merely to
determine the weight of evidence for purposes of bail. On such hearing, the court
does not sit to try the merits or to enter into any nice inquiry as to the weight that
ought to be allowed to the evidence for or against the accused, nor will it speculate
on the outcome of the trial or on what further evidence may be therein offered or
admitted. The course of inquiry may be left to the discretion of the court which may
confine itself to receiving such evidence as has reference to substantial matters,
avoiding unnecessary thoroughness in the examination and cross examination. 33

In resolving bail applications of the accused who is charged with a capital offense, or
an offense punishable by reclusion perpetua or life imprisonment, the trial judge is
expected to comply with the guidelines outlined in Cortes v. Catral,34 to wit:

1. In all cases, whether bail is a matter of right or of discretion, notify the

prosecutor of the hearing of the application for bail or require him to submit
his recommendation (Section 18, Rule 114 of the Rules of Court, as
amended);

2. Where bail is a matter of discretion, conduct a hearing of the application for

bail regardless of whether or not the prosecution refuses to present evidence
to show that the guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion; (Section 7 and 8, supra)

3. Decide whether the guilt of the accused is strong based on the summary of
evidence of the prosecution;

4. If the guilt of the accused is no t strong, discharge the accused upon the
approval of the bailbond (Section 19, supra) Otherwise petition should be
denied.

3.
Enrile’s poor health justifies his admission to bail

We first note that Enrile has averred in his Motion to Fix Bail the presence of two
mitigating circumstances that should be appreciated in his favor, namely: that he
was already over 70 years at the time of the alleged commission of the offense, and
that he voluntarily surrendered.35

Enrile’s averment has been mainly uncontested by the Prosecution, whose

Opposition to the Motion to Fix Bail has only argued that –

8. As regards the assertion that the maximum possible penalty that might be
imposed upon Enrile is only reclusion temporal due to the presence of two mitigating
circumstances, suffice it to state that the presence or absence of mitigating
circumstances is also not consideration that the Constitution deemed worthy. The
relevant clause in Section 13 is "charged with an offense punishable by." It is,
therefore, the maximum penalty provided by the offense that has bearing and not the
possibility of mitigating circumstances being appreciated in the accused’s favor. 36

Yet, we do not determine now the question of whether or not Enrile’s averment on
the presence of the two mitigating circumstances could entitle him to bail despite the
crime alleged against him being punishable with reclusion perpetua , 37 simply
because the determination, being primarily factual in context, is ideally to be made
by the trial court.

Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by
the earlier mentioned principal purpose of bail, which is to guarantee the appearance
of the accused at the trial, or whenever so required by the court. The Court is further
mindful of the Philippines’ responsibility in the international community arising from
the national commitment under the Universal Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the worth and dignity of
every person. This commitment is enshrined in Section II, Article II of our
Constitution which provides: "The State values the dignity of every human person
and guarantees full respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person to liberty and due
process, ensuring that those detained or arrested can participate in the proceedings
before a court, to enable it to decide without delay on the legality of the detention
and order their release if justified. In other words, the Philippine authorities are under
obligation to make available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include the right to be
admitted to bail.38

This national commitment to uphold the fundamental human rights as well as value
the worth and dignity of every person has authorized the grant of bail not only to
those charged in criminal proceedings but also to extraditees upon a clear and
convincing showing: (1 ) that the detainee will not be a flight risk or a danger to the
community; and (2 ) that there exist special, humanitarian and compelling
circumstances.39

In our view, his social and political standing and his having immediately surrendered
to the authorities upon his being charged in court indicate that the risk of his flight or
escape from this jurisdiction is highly unlikely. His personal disposition from the
onset of his indictment for plunder, formal or otherwise, has demonstrated his utter
respect for the legal processes of this country. We also do not ignore that at an
earlier time many years ago when he had been charged with rebellion with murder
and multiple frustrated murder, he already evinced a similar personal disposition of
respect for the legal processes, and was granted bail during the pendency of his trial
because he was not seen as a flight risk.40 With his solid reputation in both his public
and his private lives, his long years of public service, and history’s judgment of him
being at stake, he should be granted bail.

The currently fragile state of Enrile’s health presents another compelling justification
for his admission to bail, but which the Sandiganbayan did not recognize.

In his testimony in the Sandiganbayan,41 Dr. Jose C. Gonzales, the Director of the
Philippine General Hospital (PGH), classified Enrile as a geriatric patient who was
found during the medical examinations conducted at the UP-PGH to be suffering
from the following conditions:

(1) Chronic Hypertension with fluctuating blood pressure levels on multiple

drug therapy; (Annexes 1.1, 1.2, 1.3);

(2) Diffuse atherosclerotic cardiovascular disease composed of the following :

a. Previous history of cerebrovascular disease with carotid and

vertebral artery disease ; (Annexes 1.4, 4.1)

b. Heavy coronary artery calcifications; (Annex 1.5)

c. Ankle Brachial Index suggestive of arterial calcifications. (Annex 1.6)

(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by

Holter monitoring ; (Annexes 1.7.1, 1.7.2)

(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip syndrome;

(Annexes 2.1, 2.2)

(5) Ophthalmology:
 a. Age-related mascular degeneration, neovascular s/p laser of the
Retina, s/p Lucentis intra-ocular injections; (Annexes 3.0, 3.1, 3.2)

b. S/p Cataract surgery with posterior chamber intraocular lens.

(Annexes 3.1, 3.2)

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

b. High cholesterol levels/dyslipidemia;

c. Alpha thalassemia;

d. Gait/balance disorder;

e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;

f. Benign prostatic hypertrophy (with documented enlarged prostate on

recent ultrasound).42

Dr. Gonzales attested that the following medical conditions, singly or collectively,
could pose significant risk s to the life of Enrile, to wit: (1) uncontrolled hypertension,
because it could lead to brain or heart complications, including recurrence of stroke;
(2) arrhythmia, because it could lead to fatal or non-fatal cardiovascular events,
especially under stressful conditions; (3) coronary calcifications associated with
coronary artery disease, because they could indicate a future risk for heart attack
under stressful conditions; and (4) exacerbations of ACOS, because they could be
triggered by certain circumstances (like excessive heat, humidity, dust or allergen
exposure) which could cause a deterioration in patients with asthma or COPD.43

Based on foregoing, there is no question at all that Enrile’s advanced age and ill
health required special medical attention. His confinement at the PNP General
Hospital, albeit at his own instance,44 was not even recommended by the officer-in-
charge (O IC) and the internist doctor of that medical facility because of the
limitations in the medical support at that hospital. Their testimonies ran as follows:

JUSTICE MARTIRES:

The question is, do you feel comfortable with the continued confinement of Senator
Enrile at the Philippine National Police Hospital?

DR. SERVILLANO:

No, Your Honor.

JUSTICE MARTIRES:

Director, doctor, do you feel comfortable with the continued confinement of Senator
Enrile at the PNP Hospital ?

PSUPT. JOCSON:

No, Your Honor.

JUSTICE MARTIRES:
Why?

PSUPT. JOCSON:

Because during emergency cases, Your Honor, we cannot give him the best.

JUSTICE MARTIRES:

At present, since you are the attending physician of the accused, Senator Enrile, are
you happy or have any fear in your heart of the present condition of the accused vis
a vis the facilities of the hospital?

DR. SERVILLANO:

Yes, Your Honor. I have a fear.

JUSTICE MARTIRES:

That you will not be able to address in an emergency situation?

DR. SERVILLANO:

Your Honor, in case of emergency situation we can handle it but probably if the
condition of the patient worsen, we have no facilities to do those things, Your
Honor.45

Bail for the provisional liberty of the accused, regardless of the crime charged,
should be allowed independently of the merits of the charge, provided his continued
incarceration is clearly shown to be injurious to his health or to endanger his life.
Indeed, denying him bail despite imperiling his health and life would not serve the
true objective of preventive incarceration during the trial.

Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court has
already held in Dela Rama v. The People’s Court:46

x x x This court, in disposing of the first petition for certiorari, held the following:

x x x [ U]nless allowance of bail is forbidden by law in the particular case, the illness
of the prisoner,

independently of the merits of the case, is a circumstance, and the humanity of the
law makes it a consideration which should, regardless of the charge and the stage of
the proceeding, influence the court to exercise its discretion to admit the prisoner to
bail ;47

xxx

Considering the report of the Medical Director of the Quezon Institute to the effect
that the petitioner "is actually suffering from minimal, early, unstable type of
pulmonary tuberculosis, and chronic, granular pharyngitis," and that in said institute
they "have seen similar cases, later progressing into advance stages when the
treatment and medicine are no longer of any avail;" taking into consideration that the
petitioner’s previous petition for bail was denied by the People’s Court on the ground
that the petitioner was suffering from quiescent and not active tuberculosis, and the
implied purpose of the People’s Court in sending the petitioner to the Quezon
Institute for clinical examination and diagnosis of the actual condition of his lungs,
was evidently to verify whether the petitioner is suffering from active tuberculosis, in
order to act accordingly in deciding his petition for bail; and considering further that
the said People’s Court has adopted and applied the well-established doctrine cited
in our above-quoted resolution, in several cases, among them, the cases against Pio
Duran (case No. 3324) and Benigno Aquino (case No. 3527), in which the said
defendants were released on bail on the ground that they were ill and their continued
confinement in New Bilibid Prison would be injurious to their health or endanger their
life; it is evident and we consequently hold that the People’s Court acted with grave
abuse of discretion in refusing to re lease the petitioner on bail.48

It is relevant to observe that granting provisional liberty to Enrile will then enable him
to have his medical condition be properly addressed and better attended to by
competent physicians in the hospitals of his choice. This will not only aid in his
adequate preparation of his defense but, more importantly , will guarantee his
appearance in court for the trial.

On the other hand, to mark time in order to wait for the trial to finish before a
meaningful consideration of the application for bail can be had is to defeat the
objective of bail, which is to entitle the accused to provisional liberty pending the
trial. There may be circumstances decisive of the issue of bail – whose existence is
either admitted by the Prosecution, or is properly the subject of judicial notice – that
the courts can already consider in resolving the application for bail without awaiting
the trial to finish.49 The Court thus balances the scales of justice by protecting the
interest of the People through ensuring his personal appearance at the trial, and at
the same time realizing for him the guarantees of due process as well as to be
presumed innocent until proven guilty.

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of

bail to ensure the appearance of the accused during the trial; and unwarrantedly
disregarded the clear showing of the fragile health and advanced age of Enrile. As
such, the Sandiganbayan gravely abused its discretion in denying Enrile’s Motion To
Fix Bail. Grave abuse of discretion, as the ground for the issuance of the writ of
certiorari , connotes whimsical and capricious exercise of judgment as is equivalent
to excess, or lack of jurisdiction.50 The abuse must be so patent and gross as to
amount to an evasion of a positive duty or to 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.51 WHEREFORE, the Court GRANTS the petition for certiorari ; ISSUES the
writ of certiorari ANNULING and SETTING ASIDE the Resolutions issued by the
Sandiganbayan (Third Division) in Case No. SB-14 CRM-0238 on July 14, 2014 and
August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce
Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond of ₱1,000,000.00
in the Sandiganbayan; and DIRECTS the immediate release of petitioner Juan
Ponce Enrile from custody unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

SECOND DIVISION

G.R. No. 211465 December 3, 2014

PEOPLE OF THE :PHILIPPINES, Plaintiff-appellee,
vs.
SHIRLEY A. CASIO, Accused-appellant.

DECISION

LEONEN, J.:

"Chicks mo dong?"1

With this sadly familiar question being used on the streets of many of our cities, the
fate of many desperate women is sealed and their futures vanquished. This case
resulted in the rescue of two minors from this pernicious practice. Hopefully, there
will be more rescues. Trafficking in persons is a deplorable crime. It is committed
even though the minor knew about or consented to the act of trafficking.

This case involves Republic Act No. 9208,2 otherwise known as the "Anti-Trafficking
in Persons Act of 2003."3

Accused Shirley A. Casio was charged for the violation of Republic Act No. 9208,
Section 4(a), qualified by Section 6(a). The information against accused, dated May
5, 2008, states:

That on or about the 3rd day of May 2008, at about 1:00 o’clock A.M., in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with deliberate intent, with intent to gain, did then and there hire and/or
recruit AAA, a minor, 17 years old and BBB for the purpose of prostitution and
sexual exploitation, by acting as their procurer for different customers, for money,
profit or any other consideration, in Violation of Sec. 4, Par. (a), Qualified by Sec. 6,
Par. (a), of R.A. 9208 (Qualified Trafficking in Persons).

CONTRARY TO LAW.4

The facts, as found by the trial court and the Court of Appeals, are as follows:

On May 2, 2008, International Justice Mission (IJM),5 a nongovernmental

organization, coordinated with the police in order to entrap persons engaged in
human trafficking in Cebu City.6

Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe Altubar, PO1 Albert
Luardo, and PO1 Roy Carlo Veloso composed the team of police operatives. 7 PO1
Luardo and PO1 Veloso were designated as decoys, pretending to be tour guides
looking for girls to entertain their guests.8 IJM provided them with marked money,
which was recorded in the police blotter.9

The team went to Queensland Motel and rented Rooms 24 and 25. These rooms
were adjacent to each other. Room 24 was designated for the transaction while
Room 25 was for the rest of the police team.10

PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in Barangay

Kamagayan, Cebu City’s red light district. Accused noticed them and called their
attention by saying "Chicks mo dong?" (Do you like girls, guys?).11

During trial, PO1 Luardo and PO1 Veloso testified that their conversation with
accused went as follows:

Accused: Chicks mo dong?(Do you like girls, guys?)

PO1 Luardo: Unya mga bag-o? Kanang batan-on kay naa mi guests naghulat sa
motel. (Are they new? They must be young because we have guests waiting at the
motel.)

Accused: Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get them.) 12

At that point, PO1 Luardo sent a text message to PSI Ylanan that they found a
prospective subject.13

After a few minutes, accused returned with AAA and BBB, private complainants in
this case.14 Accused: Kining duha kauyon mo ani? (Are you satisfied with these two?)

PO1 Veloso: Maayo man kaha na sila modala ug kayat? (Well, are they good in
sex?)15 Accused gave the assurance that the girls were good in sex. PO1 Luardo
inquired how much their serviceswould cost. Accused replied, "Tag kinientos"
(₱500.00).16

PO1 Veloso and PO1 Luardo convinced accused to come with them to Queensland
Motel. Upon proceeding toRoom 24, PO1 Veloso handed the marked money to
accused.17

As accused counted the money, PO1 Veloso gave PSI Ylanan a missed call. This
was their pre-arranged signal. The rest of the team proceeded to Room 24, arrested
accused, and informed her of her constitutional rights. The police confiscated the
marked money from accused.18 Meanwhile, AAA and BBB "were brought to Room 25
and placed in the custody of the representatives from the IJM and the DSWD." 19

During trial, AAA testified that she was born on January 27, 1991. This statement
was supported by a copy of her certificate of live birth.20

AAA narrated that in 2007, she worked as a house helper in Mandaue City. In March
2008 she stopped working as a house helper and transferred to Cebu City. She
stayed with her cousin, but she subsequently moved to a boarding house. It was
there where she met her friend, Gee Ann. AAA knew that Gee Ann worked in a disco
club. When Gee Ann found out that AAA was no longer a virgin, she offered AAA
work. AAA agreed because she needed the money in order to helpher father. AAA
recalled that she had sex with her first customer. She was paid ₱200.00 and given
an additional ₱500.00 as tip. For the first few weeks, Gee Ann provided customers
for AAA. Eventually, Gee Ann brought her to Barangay Kamagayan, telling her that
there were more customers in that area.21

AAA stated that she knew accused was a pimp because AAA would usually see her
pimping girls to customers in Barangay Kamagayan.22 AAA further testified that on
May 2, 2008, accused solicited her services for a customer. That was the first time
that she was pimped by accused.23 Accused brought her, BBB, and a certain Jocelyn
to Queensland Motel.24

AAA testified that Jocelyn stayed inthe taxi, while she and BBB went to Room 24. It
was in Room 24 where the customer paid Shirley. The police rushed in and toldAAA
and BBB to go to the other room. AAA was then met by the Department of Social
Welfare and Development personnel who informed her that she was rescued and
not arrested.25

AAA described that her job as a prostitute required her to display herself, along with
other girls, between 7 p.m. to 8 p.m. She received ₱400.00 for every customer who
selected her.26
The prosecution also presented the police operatives during trial. PSI Ylanan, SPO1
Mendaros, and SPO1 Altubar testified that after PO1 Veloso had made the missed
call to PSI Ylanan, they "rushed to Room 24 and arrested the accused." 27 SPO1
Altubar retrieved the marked money worth ₱1,000.00 from accused’s right hand "and
upon instruction from PCINSP Ylanan recorded the same at the ‘police blotter prior
operation’. . . ."28

The trial court noted that AAA requested assistance from the IJM "in conducting the
operation against the accused."29

Version of the accused

In defense, accused testified thatshe worked as a laundry woman. On the evening of

May 2, 2008, she went out to buy supper. While walking, she was stopped by two
men on board a blue car. The two men asked her if she knew someone named
Bingbing. She replied that she only knew Gingging but not Bingbing. The men
informed her that they were actually looking for Gingging, gave her a piece of paper
witha number written on it, and told her to tell Gingging to bring companions. When
accused arrived home, she contacted Gingging. Gingging convinced her to come
because allegedly, she would be given money by the two males. 30 Ruling of the trial
court

The Regional Trial Court, Branch 14 in Cebu City found accused guilty beyond
reasonable doubt and held31 that:

Accused had consummated the act of trafficking of person[s] . . . as defined under

paragraph (a), Section 3 of R.A. 9208 for the purpose of letting her engage in
prostitution asdefined under paragraph [c] of the same Section; the act of "sexual
intercourse" need not have been consummated for the mere "transaction" i.e. the
‘solicitation’ for sex and the handing over of the "bust money" of Php1,000.00
already consummated the said act.

....

WHEREFORE, the Court finds accused, SHIRLEY A. CASIO, GUILTY beyond

reasonable doubt of trafficking in persons under paragraph (a), Section 4 as
qualified under paragraph (a), Section 6 of R.A. 9208 and sentenced to suffer
imprisonment of TWENTY (20) YEARS and to pay a fine of ONE MILLION
(Php1,000,000.00).

Finally, accused is ordered to pay the costs of these proceedings.

SO ORDERED[.]32

Ruling of the Court of Appeals

The Court of Appeals affirmed the findings of the trial court but modified the fine and
awarded moral damages. The dispositive portion of the decision33 reads:

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby

DENIED. The assailed Decision dated 10 August 2010 promulgated by the Regional
Trial Court, Branch 14 in Cebu City in Crim. Case No. CBU-83122 is AFFIRMED
WITH MODIFICATIONS. The accused-appellant is accordingly sentenced to suffer
the penalty of life imprisonment and a fine of Php2,000,000 and is ordered to pay
each of the private complainants Php150,000 as moral damages.

SO ORDERED.34
Accused filed a notice of appeal35 on August 28, 2013, which the Court of Appeals
noted and gavedue course in its resolution36 dated January 6, 2014. The case
records of CA-G.R. CEB-CR No. 01490 were received by this court on March 17,
2014.37

In the resolution38 dated April 29, 2014, this court resolved to notify the parties that
they may file their respective supplemental briefs within 30 days from notice. This
court also required the Superintendent of the Correctional Institution for Women to
confirm the confinement of accused.39

Counsel for accused40 and the Office of the Solicitor General41 filed their respective
manifestations, stating that they would no longer file supplemental briefs considering
that all issues had been discussed in the appellant’s brief and appellee’s brief filed
before the Court of Appeals. Through a letter42 dated June 17, 2014, Superintendent
IV Rachel D. Ruelo confirmed accused’s confinement at the Correctional Institution
for Women since October 27, 2010.

The sole issue raised by accused iswhether the prosecution was able to prove her
guilt beyond reasonable doubt.

However, based on the arguments raised in accused’s brief, the sole issue may be
dissected into the following:

(1) Whether the entrapment operation conducted by the police was valid,
considering that there was no prior surveillance and the police did not know
the subject of the operation;43

(2) Whether the prosecution was able to prove accused’s guilt beyond
reasonable doubt even though there was no evidence presented to show that
accused has a history of engaging in human trafficking;44 and

(3) Whether accused was properly convicted of trafficking in persons,

considering that AAA admitted that she works as a prostitute. 45

Arguments of accused

Accused argues that there was no valid entrapment. Instead, she was instigated into
committing the crime.46 The police did not conduct prior surveillance and did not
evenknow who their subject was.47 Neither did the police know the identities of the
alleged victims.

Accused further argues that under the subjective test, she should be acquitted
because the prosecution did notpresent evidence that would prove she had a history
of engaging in human trafficking or any other offense. She denied being a pimp and
asserted that she was a laundry woman.48 In addition, AAA admitted that she worked
as a prostitute. Thus, it was her decision to display herself to solicit customers. 49

Arguments of the plaintiff-appellee

The Office of the Solicitor General, counsel for plaintiff-appellee People of the
Philippines, argued that the trial court did not err in convicting accused because
witnesses positively identified her as the person who solicited customers and
received money for AAA and BBB.50 Entrapment operations are valid and have been
recognized by courts.51Likewise, her arrest in flagrante delicto is valid.52 Hence, the
trial court was correct in stating that accused had "fully consummated the act of
trafficking of persons. . ."53
We affirm accused Shirley A. Casio’s conviction.

I.

Background of Republic Act No. 9208

The United Nations Convention against Transnational Organized Crime (UN CTOC)
was "adopted and opened for signature, ratification and accession" 54 on November
15, 2000. The UN CTOC is supplemented by three protocols: (1) the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children; (2) the Protocol against the Smuggling of Migrants by Land, Sea and Air;
and, (3) the Protocol against the Illicit Manufacturing of and Trafficking in Firearms,
their Parts and Components and Ammunition.55

On December 14, 2000, the Philippines signed the United Nations "Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children" (Trafficking Protocol).56 This was ratified by the Philippine Senate on
September 30, 2001.57 The Trafficking Protocol’s entry into force was on December
25, 2003.58

In the Trafficking Protocol, human trafficking is defined as:

Article 3 Use of terms For the purposes of this Protocol:

(a) "Trafficking in persons" shall mean the recruitment, transportation,

transfer, harbouring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended

exploitation set forth in subparagraph (a) of this article shall be irrelevant
where any of the means set forth in subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a child

for the purpose of exploitation shall be considered "trafficking in persons"
even if this does not involve any of the means set forth in subparagraph (a) of
this article;

(d) "Child" shall mean any person under eighteen years of age.

Senator Loren Legarda, in her sponsorship speech, stated that the "Anti-Trafficking
Act will serve as the enabling law of the country’s commitment to [the] protocol."59

Senator Luisa Ejercito Estrada also delivered a sponsorship speech and described
trafficking in persons as follows:

Trafficking in human beings, if only to emphasize the gravity of its hideousness, is

tantamount to modern-day slavery at work. It is a manifestation of one of the most
flagrant forms of violence against human beings. Its victims suffer the brunt of this
insidious form of violence. It is exploitation, coercion, deception, abduction, rape,
physical, mental and other forms of abuse, prostitution, forced labor, and indentured
servitude.
 ....

As of this time, we have signed the following: the Convention on the Elimination of
all Forms of Discrimination Against Women; the 1995 Convention on the Rights of
the Child; the United Nations Convention on the Protection of Migrant Workers and
their Families; and the United Nations’ Resolution on Trafficking in Women and
Girls, among others.

Moreover, we have also expressed our support for the United Nations’ Convention
Against Organized Crime, including the Trafficking Protocol in October last year.

At first glance, it appears thatwe are very responsive to the problem. So it seems.

Despite these international agreements, we have yet to come up with a law that shall
squarely address human trafficking.60

During the interpellation of Republic Act No. 9208, then numbered as Senate Bill No.
2444, Senator Teresa Aquino-Oreta asked if there was a necessity for an anti-
trafficking law when other laws exist that cover trafficking.61

Senator Luisa Ejercito Estrada explained:

At present, Mr. President, the relevant laws to the trafficking issue are the Revised
Penal Code, Republic Act No. 8042 or the Migrant Workers and Overseas Filipino
Act, R[epublic] A[ct] No. 6955 or the Mail-Order Bride Act, and Republic Act No.
8239 or the Philippine Passport Act. These laws address issues such as illegal
recruitment, prostitution, falsification of public documents and the mail-order bride
scheme. These laws do not respond to the issue of recruiting, harboring or
transporting persons resulting in prostitution, forced labor, slavery and slavery-like
practices. They only address to one or some elements of trafficking independent of
their results or consequence.62(Emphasis supplied)

Thus, Republic Act No. 9208 was enacted in order to fully address the issue of
human trafficking. Republic Act No. 9208 was passed on May 12, 2003, and
approved on May 26, 2003.

II.

Elements of trafficking in persons

The elements of trafficking inpersons can be derived from its definition under Section
3(a) of Republic Act No. 9208, thus:

(1) The actof "recruitment, transportation, transfer or harbouring, or receipt of

persons with or without the victim’s consent or knowledge, within or across
national borders."

(2) The means used which include "threat or use of force, or other forms of
coercion, abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another; and

(3) The purpose of trafficking is exploitation which includes "exploitation or the

prostitution of others or other forms of sexual exploitation, forced labor or
services, slavery, servitude or the removal or sale of organs." 63
On January 28, 2013,Republic Act No. 10364 64 was approved, otherwise known as
the "Expanded Anti-Trafficking in Persons Act of 2012." Section 3(a) of Republic Act
No. 9208 was amended by Republic Act No. 10364 as follows:

SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to read as follows:

"SEC. 3. Definition of Terms. – As used in this Act:

"(a) Trafficking in Persons – refers to the recruitment, obtaining, hiring, providing,

offering, transportation, transfer, maintaining, harboring, or receipt of persons with or
without the victim’s consent or knowledge, within or across national borders by
means of threat, or use of force, or other forms of coercion, abduction, fraud,
deception, abuse of power or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to achieve the consent of
a person having control over another person for the purpose of exploitation which
includes at a minimum, the exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery, servitude or the removal or sale
of organs.

"The recruitment, transportation, transfer, harboring, adoption or receipt of a child for

the purpose of exploitation or when the adoption is induced by any form of
consideration for exploitative purposes shall also be considered as ‘trafficking in
persons’ even if it does not involve any of the means set forth in the preceding
paragraph. (Emphasis supplied)

Under Republic Act No. 10364, the elements of trafficking in persons have been
expanded to include the following acts:

(1) The act of "recruitment, obtaining, hiring, providing, offering,

transportation, transfer, maintaining, harboring, or receipt of persons with or
without the victim’s consent or knowledge, within or across national borders;"

(2) The means used include "by means of threat, or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power or of position,
taking advantage of the vulnerability of the person, or, the giving or receiving
of payments or benefits to achieve the consent of a person having control
over another person"

(3) The purpose of trafficking includes "the exploitation or the prostitution of

others or other forms of sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs" (Emphasis supplied)

The Court of Appeals found thatAAA and BBB were recruited by accused when their
services were peddled to the police who acted as decoys.65 AAA was a child at the
time that accused peddled her services.66 AAA also stated that she agreed to work
as a prostitute because she needed money.67 Accused took advantage of AAA’s
vulnerability as a child and as one who need money, as proven by the testimonies of
the witnesses.68

III.

Knowledge or consent of the minor is not a defense under Republic Act No. 9208.

Accused claims that AAA admitted engaging in prostitution even before May 2,
2008. She concludes that AAA was predisposed to having sex with "customers" for
money.69 For liability under our law, this argument is irrelevant. As defined under
Section 3(a) of Republic Act No. 9208, trafficking in persons can still becommitted
even if the victim gives consent.

SEC. 3. Definition of Terms.— As used in this Act:

a. Trafficking in Persons - refers to the recruitment, transportation, transfer or

harboring, or receipt of persons with or without the victim's consent or
knowledge, within or across national borders by means of threat or use of
force, or other forms of coercion, abduction, fraud, deception, abuse of power
or of position, taking advantage of the vulnerability of the persons, or, the
giving or receiving of payments or benefits to achieve the consent of a person
having control over another person for the purpose of exploitation which
includes ata minimum, the exploitation or the prostitution of others or other
forms of sexual exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs.

The recruitment transportation, transfer, harboring or receipt of a child for the

purpose of exploitation shall also be considered as "trafficking in persons" even if it
does not involve any of the means set forth in the preceding paragraph. 70 (Emphasis
supplied)

The victim’s consent is rendered meaningless due to the coercive, abusive, or

deceptive means employed by perpetrators of human trafficking.71 Even without the
use of coercive, abusive, or deceptive means, a minor’s consent is not given outof
his or her own free will.

Section 4 of Republic Act No. 9208 enumerates the different acts of trafficking in
persons. Accused was charged under Section 4(a), which states:

SEC. 4. Acts of Trafficking in Persons.— It shall be unlawful for any person, natural
or judicial, to commit any of the following acts.

a. To recruit, transport, transfer, harbor, provide, or receive a person by any

means, including those done under the pretext of domestic or overseas
employment or training or apprenticeship, for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery, involuntary servitude
or debt bondage;72

Republic Act No. 9208 further enumerates the instances when the crime of
trafficking in persons is qualified.

SEC. 6. Qualified Trafficking in Persons.— The following are considered as qualified

trafficking: a. When the trafficked person is a child;

b. When the adoption is effected through Republic Act No. 8043, otherwise
known as the "Inter-Country Adoption Act of 1995" and said adoption is for
the purpose of prostitution, pornography, sexual exploitation,forced labor,
slavery, involuntary servitude or debt bondage;

c. When the crime is committed by a syndicate, or in large scale. Trafficking is

deemed committed by a syndicate if carried out by a group of three (3) or
more persons conspiring or confederating with one another. It is deemed
committed in large scale if committed against three (3) or more persons,
individually or as a group;
 d. When the offender is an ascendant, parent, sibling, guardian or a person
who exercise authority over the trafficked person or when the offense is
committed by a public officer or employee;

e. When the trafficked person is recruited to engage in prostitution with any

member of the military or law enforcement agencies;

f. When the offender is a member of the military or law enforcement agencies;

and

g. When by reason or on occasion of the act of trafficking in persons, the

offended party dies, becomes insane, suffers mutilation or is afflicted with
Human Immunod eficiency Virus (HIV) or the Acquired Immune Deficiency
Syndrome (AIDS). (Emphasis supplied)73

Section 3 (b) of Republic Act No. 9208 defines "child" as:

SEC. 3. Definition of Terms.— As used in this Act:

....

b. Child- refers to a person below eighteen (18) years of age or one who is over
eighteen (18) but isunable to fully take care of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or discrimination because of a physical or mental
disability or condition.74

Based on the definition of trafficking in persons and the enumeration of acts of

trafficking in persons, accused performed all the elements in the commission of the
offense when she peddled AAA and BBB and offered their services to decoys PO1
Veloso and PO1 Luardo in exchange for money. The offense was also qualified
because the trafficked persons were minors.

Here, AAA testified as to how accused solicited her services for the customers
waiting at Queensland Motel. AAA also testified that she was only 17 years old when
accused peddled her. Her certificate of live birth was presented as evidence to show
that she was born on January 27, 1991.

The prosecution was able to prove beyond reasonable doubt that accused
committed the offense of trafficking in persons, qualified by the fact that one of the
victims was a child. As held by the trial court:

[T]he act of "sexual intercourse" need not have been consummated for the mere
"transaction" i.e. that ‘solicitation’ for sex and the handing over of the "bust money"
of Php.1,000.00 already consummated the said act.75

IV.

Validity of the entrapment operation

In People v. Doria,76 this court discussed the objective test and the subjective test to
determine whether there was a valid entrapment operation:

. . . American federal courts and a majority of state courts use the "subjective" or
"origin of intent" test laid down in Sorrells v. United States to determine whether
entrapment actually occurred. The focus of the inquiry is on the accused's
predisposition to commit the offense charged, his state of mind and inclination
before his initial exposure to government agents. All relevant facts such as the
accused's mental and character traits, his past offenses, activities, his eagerness in
committing the crime, his reputation, etc., are considered to assess his state of mind
before the crime. The predisposition test emphasizes the accused's propensity to
commit the offense rather than the officer's misconduct and reflects an attempt to
draw a line between a "trap for the unwary innocent and the trap for the unwary
criminal." If the accused was found to have been ready and willing to commit the
offense at any favorable opportunity, the entrapment defense will fail even if a police
agent usedan unduly persuasive inducement.

Some states, however, have adopted the "objective" test. . . . Here, the court
considers the nature of the police activity involved and the propriety of police
conduct. The inquiry is focused on the inducements used by government agents, on
police conduct, not on the accused and his predisposition to commit the crime.For
the goal of the defense is to deter unlawful police conduct. The test of entrapment is
whether the conduct of the law enforcement agent was likely to induce a normally
law-abiding person, other than one who is ready and willing, to commit the offense;
for purposes of this test, it is presumed that a law-abiding person would normally
resist the temptation to commit a crime that is presented by the simple opportunity to
act unlawfully. (Emphasis supplied, citations omitted)77

Accused argued that in our jurisprudence, courts usually apply the objective test in
determining the whether there was an entrapment operation or an
instigation.78 However, the use of the objective test should not preclude courts from
also applying the subjective test. She pointed out that:

Applying the "subjective"test it is worth invoking that accusedappellant procures

income from being a laundry woman. The prosecution had not shown any proof
evidencing accused-appellant’s history in human trafficking or engagement in any
offense. She is not even familiar to the team who had has [sic] been apprehending
human traffickers for quite some time.79 (Citations omitted)

Accused further argued that the police should have conducted a prior surveillance
before the entrapment operation.

Time and again, this court has discussed the difference between entrapment and
instigation. In Chang v. People,80this court explained that:

There is entrapment when law officers employ ruses and schemes to ensure the
apprehension of the criminal while in the actual commission of the crime. There is
instigation when the accused is induced to commit the crime. The difference in the
nature of the two lies in the origin of the criminal intent. In entrapment, the mens
reaoriginates from the mind of the criminal. The idea and the resolve to commit the
crime comes from him. In instigation, the law officer conceives the commission of the
crime and suggests to the accused who adopts the idea and carries it into
execution.81

Accused contends that using the subjective test, she was clearly instigated by the
police to commit the offense. She denied being a pimp and claimed that she earned
her living as a laundrywoman. On this argument, we agree with the finding of the
Court of Appeals:

[I]t was the accused-appellant who commenced the transaction with PO1 Luardo
and PO1 Veloso by calling their attention on whether they wanted girls for that
evening, and when the officers responded, it was the accused-appellant who told
them to wait while she would fetch the girls for their perusal.82
This shows that accused was predisposed to commit the offense because she
initiated the transaction. As testified by PO1 Veloso and PO1 Luardo, accused called
out their attention by saying "Chicks mo dong?" If accused had no predisposition to
commit the offense, then she most likely would not have asked PO1 Veloso and
PO1 Luardo if they wanted girls.

The entrapment would still be valid using the objective test. The police merely
proceeded to D. Jakosalem Street in Barangay Kamagayan. It was accused who
asked them whether they wanted girls. There was no illicit inducement on the part of
the police for the accused to commit the crime.

When accused was arrested, she was informed of her constitutional rights.83 The
marked money retrieved from her was recorded in the police blotter prior to the
entrapment operation and was presented in court as evidence.84

On accused’s alibi thatshe was merely out to buy her supper that night, the Court of
Appeals noted that accused never presented Gingging in court. Thus, her alibi was
unsubstantiated and cannot be given credence.85

With regard to the lack of prior surveillance, prior surveillance is not a condition for
an entrapment operation’s validity.86 In People v. Padua87 this court underscored the
value of flexibility in police operations:

A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust

operation, the conduct of which has no rigid or textbook method. Flexibility is a trait
of good police work. However the police carry out its entrapment operations, for as
long as the rights of the accused have not been violated in the process, the courts
will not pass on the wisdom thereof. The police officers may decide that time is of
the essence and dispense with the need for prior surveillance.88 (Citations omitted)

This flexibility is even more important in cases involving trafficking of persons. The
urgency of rescuing the victims may at times require immediate but deliberate action
on the part of the law enforcers.

V.

Imposition of fine and award of damages

The Court of Appeals properly imposed the amount of 2,000,000.00. Section 10 (b)
of Republic Act No. 9208 provides that:

SEC. 10. Penalties and Sanctions.— The following penalties and sanctions are
hereby established for the offenses enumerated in this Act:

....

c. Any person found guilty of qualified trafficking under Section 6 shall suffer the
penalty of life imprisonment and a fine of not less than Two million pesos
(₱2,000,000.00) but not more than Five million pesos (₱5,000,000.00);

However, we modify by raising the award of moral damages from ₱150,000.00 89 to

₱500,000.00. We also award exemplary damages in the amount of ₱100,000.00.
These amounts are in accordance with the ruling in People v. Lalli90 where this court
held that:
The payment of ₱500,000 as moral damages and ₱100,000 as exemplary damages
for the crime of Trafficking in Persons as a Prostitute finds basis in Article 2219 of
the Civil Code, which states:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and
35.

....

The criminal case of Trafficking in Persons as a Prostitute is an analogous case to

the crimes of seduction, abduction, rape, or other lascivious acts. In fact, it is worse.
To be trafficked as a prostitute without one’s consent and to be sexually violated four
to five times a day by different strangers is horrendous and atrocious. There is no
doubt that Lolita experienced physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, and social
humiliation when she was trafficked as a prostitute in Malaysia. Since the crime of
Trafficking in Persons was aggravated, being committed by a syndicate, the award
of exemplary damages is likewise justified.91

Human trafficking indicts the society that tolerates the kind of poverty and its
accompanying desperation that compels our women to endure indignities. It reflects
the weaknesses of that society even as it convicts those who deviantly thrive in such
hopelessness. We should continue to strive for the best of our world, where our
choices of human intimacies are real choices, and not the last resort taken just to
survive. Human intimacies enhance our best and closest relationships. It serves as a
foundation for two human beings to face life’s joys and challenges while continually
growing together with many shared experiences. The quality of our human
relationships defines the world that we create also for others.

Regardless of the willingness of AAA and BBB, therefore, to be trafficked, we affirm

the text and spirit of our laws. Minors should spend their adolescence moulding their
character in environments free of the vilest motives and the worse of other human
beings. The evidence and the law compel us to affirm the conviction of accused in
this case.
But this is not all that we have done. By fulfilling our duties, we also express the
hope that our people and our government unite against everything inhuman. We
contribute to a commitment to finally stamp out slavery and human trafficking.

There are more AAA's and BBBs out there. They, too, deserve to be rescued. They,
too, need to be shown that in spite of what their lives have been, there is still much
good in our world.

WHEREFORE, premises considered, we AFFIRM the decision of the Court of

Appeals dated June 27, 2013, finding accused Shirley A. Casio guilty beyond
reasonable doubt of violating Section 4(a), qualified by Section 6(a) of Republic Act
No. 9208, and sentencing her to suffer the penalty of life imprisonment and a fine of
₱2,000,000.00, with the MODIFICATION that accused-appellant shall not be eligible
for parole under Act No. 4103 (Indeterminate Sentence Law) in accordance with
Section 3 of Republic Act No. 9346.92

The award of damages is likewise MODIFIED as follows:

Accused is ordered to pay each of the private complainants:

(1) ₱500,000.00 as moral damages; and

(2) ₱100,000.00 as exemplary damages.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

EN BANC

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,

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

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million
Filipinos- or 93 percent of a total population of 93.3 million – adhering to the
teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as
their own bodies just as Christ loved the church and gave himself up for her 2 failed to
prevent, or even to curb, the pervasiveness of violence against Filipino women. The
National Commission on the Role of Filipino Women (NCRFW) reported that, for the
years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse
and violence and more than 90% of these reported cases were committed by the
women's intimate partners such as their husbands and live-in partners."3

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

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

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

The Factual Antecedents

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

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the
former was eleven years her senior. They have three (3) children, namely: Jo-Ann J.
Garcia, 17 years old, who is the natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J.
Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life
revolved around her husband. On the other hand, petitioner, who is of Filipino-
Chinese descent, is dominant, controlling, and demands absolute obedience from
his wife and children. He forbade private respondent to pray, and deliberately
isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and
prevailed upon her to just stay at home. He was often jealous of the fact that his
attractive wife still catches the eye of some men, at one point threatening that he
would have any man eyeing her killed.9

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

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

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

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

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

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

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

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against

the private respondent and her children exists or is about to recur, the RTC issued a
TPO18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:

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

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

After the Respondent leaves or is removed from the conjugal dwelling, or

anytime the Petitioner decides to return to the conjugal dwelling to remove
things, the Petitioner shall be assisted by police officers when re-entering the
family home.

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

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

c) Not to harass, annoy, telephone, contact or otherwise communicate with

the Petitioner, directly or indirectly, or through other persons, or contact
directly or indirectly her children, mother and household help, nor send gifts,
cards, flowers, letters and the like. Visitation rights to the children may be
subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a

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

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

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash

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

h) To ensure compliance especially with the order granting support pendente

lite, and considering the financial resources of the Respondent and his threat
that if the Petitioner sues she will not get a single centavo, the Respondent is
ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE
MILLION PESOS, in two sufficient sureties.
 On April 24, 2006, upon motion19 of private respondent, the trial court issued
an amended TPO,20 effective for thirty (30) days, which included the following
additional provisions:

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

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

k) Respondent is ordered to immediately post a bond to keep the peace, in

two sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of

One Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental
expenses of Fifty Thousand Pesos (Php 50,000.00) per month until the matter
of support could be finally resolved.

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

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

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

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

b) Respondent shall make an accounting or list of furniture and equipment in

the conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City within
24 hours from receipt of the Temporary Protection Order by his counsel;

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

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental

and Php25,000.00 for clothes of the three petitioners (sic) children within 24
hours from receipt of the Temporary Protection Order by his counsel,
otherwise be declared in indirect contempt of Court;
 e) That respondent surrender his two firearms and all unlicensed firearms to
the Clerk of Court within 24 hours from receipt of the Temporary Protection
Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children

upon presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to

faithfully comply with the TPO; and committed new acts of harassment against her
and their children, private respondent filed another application24 for the issuance of a
TPO ex parte. She alleged inter

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

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

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

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

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

1) Prohibited from threatening to commit or committing, personally or through

another, acts of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise

communicating in any form with the offended party, either directly or
indirectly;

3) Required to stay away, personally or through his friends, relatives,

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

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

5) Directed to deliver in full financial support of Php200,000.00 a month and

Php50,000.00 for rental for the period from August 6 to September 6, 2006;
and support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of

Php75,000.00 and Php25,000.00;

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

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise

dispose of the conjugal assets, or those real properties in the name of Jesus
Chua Garcia only and those in which the conjugal partnership of gains of the
Petitioner Rosalie J. Garcia and respondent have an interest in, especially the
conjugal home located in No. 14, Pitimini St., Capitolville Subdivision,
Bacolod City, and other properties which are conjugal assets or those in
which the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes "I," "I-1," and "I-2,"
including properties covered by TCT Nos. T-186325 and T-168814;

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

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

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the
Temporary Protection Order issued on August 23, 2006 is hereby renewed and
extended for thirty (30) days and continuously extended and renewed for thirty (30)
days, after each expiration, until further orders, and subject to such modifications as
may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted
the required comment to private respondent's motion for renewal of the TPO arguing
that it would only be an "exercise in futility."33

Proceedings before the CA

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

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

Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the
petition for failure of petitioner to raise the constitutional issue in his pleadings before
the trial court in the civil case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity

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

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

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE

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

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO

CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE
OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING

THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.

IV.

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

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

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the

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

As a general rule, the question of constitutionality must be raised at the earliest

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

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

We disagree.

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

statute.

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

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

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

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

xxx

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

a. All cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A.

9262 could have been raised at the earliest opportunity in his Opposition to the
petition for protection order before the RTC of Bacolod City, which had jurisdiction to
determine the same, subject to the review of this Court.

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

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

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

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim,

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

Moreover, it cannot be denied that this issue affects the resolution of the case a quo
because the right of private respondent to a protection order is founded solely on the
very statute the validity of which is being attacked53 by petitioner who has sustained,
or will sustain, direct injury as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause for the
non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not
have deterred petitioner from raising the same in his Opposition. The question
relative to the constitutionality of a statute is one of law which does not need to be
supported by evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC
nonetheless allows the conduct of a hearing to determine legal issues, among
others, viz:

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

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

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

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

(e) Schedule of the presentation of evidence by both parties which shall be

done in one day, to the extent possible, within the 30-day period of the
effectivity of the temporary protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing
when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a
temporary protection order issued is due to expire, the trial court may extend or
renew the said order for a period of thirty (30) days each time until final judgment is
rendered. It may likewise modify the extended or renewed temporary protection
order as may be necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to litigate the
constitutional issues, without necessarily running afoul of the very purpose for the
adoption of the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for
prohibition with prayer for injunction and temporary restraining order (CA-G.R. CEB -
SP. No. 01698). Petitioner may have proceeded upon an honest belief that if he
finds succor in a superior court, he could be granted an injunctive relief. However,
Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a petition for
certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto was
improper, and it effectively hindered the case from taking its normal course in an
expeditious and summary manner.

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

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

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

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

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

Intent of Congress in enacting R.A. 9262.

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

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

Wednesday, December 10, 2003

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

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

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

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

Senator Estrada. Yes, Mr. President.

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

interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not
get me wrong. However, I believe that there is a need to protect women's rights
especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had
the opportunity to file a case against their spouses, their live-in partners after years,
if not decade, of battery and abuse. If we broaden the scope to include even the
men, assuming they can at all be abused by the women or their spouses, then it
would not equalize the already difficult situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this
position. I am sure that the men in this Chamber who love their women in their lives
so dearly will agree with this representation. Whether we like it or not, it is an
unequal world. Whether we like it or not, no matter how empowered the women are,
we are not given equal opportunities especially in the domestic environment where
the macho Filipino man would always feel that he is stronger, more superior to the
Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with
this bill because the family members have been included in this proposed measure
since the other members of the family other than women are also possible victims of
violence. While women are most likely the intended victims, one reason incidentally
why the measure focuses on women, the fact remains that in some relatively few
cases, men also stand to be victimized and that children are almost always the
helpless victims of violence. I am worried that there may not be enough protection
extended to other family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the special needs of
abused children. The same law is inadequate. Protection orders for one are not
available in said law.

I am aware that some groups are apprehensive about granting the same protection
to men, fearing that they may use this law to justify their abusive behavior against
women. However, we should also recognize that there are established procedures
and standards in our courts which give credence to evidentiary support and cannot
just arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to protect
the family as the basic social institution. Though I recognize the unequal power
relations between men and women in our society, I believe we have an obligation to
uphold inherent rights and dignity of both husband and wife and their immediate
family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family
members as a critical input arrived at after a series of consultations/meetings with
various NGOs, experts, sports groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator
Legarda would be removing the "men and children" in this particular bill and focus
specifically on women alone. That will be the net effect of that proposed amendment.
Hearing the rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi"
Ejercito Estrada, I am not sure now whether she is inclined to accept the proposed
amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to
accept this, I will propose an amendment to the amendment rather than object to the
amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the
distinguished proponent of the amendment. As a matter of fact, I tend to agree.
Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong
mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree
that we remove the children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a
matter of fact, it is not limited to minors. The abuse is not limited to seven, six, 5-
year-old children. I have seen 14, 15-year-old children being abused by their fathers,
even by their mothers. And it breaks my heart to find out about these things.

Because of the inadequate existing law on abuse of children, this particular measure
will update that. It will enhance and hopefully prevent the abuse of children and not
only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the
men in the bill but not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the
amendment, as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or
expediency of a statute.67 Hence, we dare not venture into the real motivations and
wisdom of the members of Congress in limiting the protection against violence and
abuse under R.A. 9262 to women and children only. No proper challenge on said
grounds may be entertained in this proceeding. Congress has made its choice and it
is not our prerogative to supplant this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to seek its amendment or repeal
by the legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law. 68 We only
step in when there is a violation of the Constitution. However, none was sufficiently
shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed. The oft-
repeated disquisition in the early case of Victoriano v. Elizalde Rope Workers'
Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against inequality, that
every man, woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on persons merely as
such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that
things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the object to which it
is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with one another in
certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that is required
of a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences; that it
must be germane to the purpose of the law; that it must not be limited to existing
conditions only; and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary.
(Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is
based on a valid classification as shall hereinafter be discussed and, as such, did
not violate the equal protection clause by favoring women over men as victims of
violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are
more likely than men to be victims of violence; and the widespread gender bias and
prejudice against women all make for real differences justifying the classification
under the law. As Justice McIntyre succinctly states, "the accommodation of
differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for

Gender Equality and Women's Empowerment), violence against women (VAW) is
deemed to be closely linked with the unequal power relationship between women
and men otherwise known as "gender-based violence". Societal norms and
traditions dictate people to think men are the leaders, pursuers, providers, and take
on dominant roles in society while women are nurturers, men's companions and
supporters, and take on subordinate roles in society. This perception leads to men
gaining more power over women. With power comes the need to control to retain
that power. And VAW is a form of men's expression of controlling women to retain
power.71

The United Nations, which has long recognized VAW as a human rights issue,
passed its Resolution 48/104 on the Declaration on Elimination of Violence Against
Women on December 20, 1993 stating that "violence against women is a
manifestation of historically unequal power relations between men and women,
which have led to domination over and discrimination against women by men and to
the prevention of the full advancement of women, and that violence against women
is one of the crucial social mechanisms by which women are forced into subordinate
positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of
gender-based violence and developments in advocacies to eradicate VAW, in his
remarks delivered during the Joint Launching of R.A. 9262 and its Implementing
Rules last October 27, 2004, the pertinent portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women.
The patriarch of a family was accorded the right to use force on members of the
family under his control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy – the

institutional rule of men. Women were seen in virtually all societies to be naturally
inferior both physically and intellectually. In ancient Western societies, women
whether slave, concubine or wife, were under the authority of men. In law, they were
treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his
wife if she endangered his property right over her. Judaism, Christianity and other
religions oriented towards the patriarchal family strengthened the male dominated
structure of society.

English feudal law reinforced the tradition of male control over women. Even the
eminent Blackstone has been quoted in his commentaries as saying husband and
wife were one and that one was the husband. However, in the late 1500s and
through the entire 1600s, English common law began to limit the right of husbands
to chastise their wives. Thus, common law developed the rule of thumb, which
allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise
wives or inflict corporeal punishment ceased. Even then, the preservation of the
family was given more importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the
English common law. In 1871, the Supreme Court of Alabama became the first
appellate court to strike down the common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her
hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like
indignities, is not now acknowledged by our law... In person, the wife is entitled to
the same protection of the law that the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized.
The temperance leagues initiated it. These leagues had a simple focus. They
considered the evils of alcoholism as the root cause of wife abuse. Hence, they
demonstrated and picketed saloons, bars and their husbands' other watering holes.
Soon, however, their crusade was joined by suffragette movements, expanding the
liberation movement's agenda. They fought for women's right to vote, to own
property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to
the public gaze. They succeeded in transforming the issue into an important public
concern. No less than the United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are
the victims of severe assaults by their male partners. In a 1985 survey, women
reported that nearly one of every eight husbands had assaulted their wives during
the past year. The [American Medical Association] views these figures as "marked
underestimates," because the nature of these incidents discourages women from
reporting them, and because surveys typically exclude the very poor, those who do
not speak English well, and women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA, "researchers on family
violence agree that the true incidence of partner violence is probably double the
above estimates; or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be
physically assaulted by a partner or ex-partner during their lifetime... Thus on an
average day in the United States, nearly 11,000 women are severely assaulted by
their male partners. Many of these incidents involve sexual assault... In families
where wife beating takes place, moreover, child abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the
most visible form of abuse. Psychological abuse, particularly forced social and
economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they
perceive no superior alternative...Many abused women who find temporary refuge in
shelters return to their husbands, in large part because they have no other source of
income... Returning to one's abuser can be dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8 percent of all homicide victims in the United
States are killed by their spouses...Thirty percent of female homicide victims are
killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women
Act.

In the International front, the women's struggle for equality was no less successful.
The United States Charter and the Universal Declaration of Human Rights affirmed
the equality of all human beings. In 1979, the UN General Assembly adopted the
landmark Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW). In 1993, the UN General Assembly also adopted the Declaration
on the Elimination of Violence Against Women. World conferences on the role and
rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and
Beijing. The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these
women's movements. No less than Section 14, Article II of our 1987 Constitution
mandates the State to recognize the role of women in nation building and to ensure
the fundamental equality before the law of women and men. Our Senate has ratified
the CEDAW as well as the Convention on the Rights of the Child and its two
protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262,
entitled "An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence
against women and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing
55.63% of total cases reported (9,903). And for the first semester of 2003, there
were 2,381 reported cases out of 4,354 cases which represent 54.31%. xxx (T)he
total number of women in especially difficult circumstances served by the
Department of Social Welfare and Development (DSWD) for the year 2002, there
are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first
semester of 2003. Female violence comprised more than 90% of all forms of abuse
and violence and more than 90% of these reported cases were committed by the
women's intimate partners such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on

violence against women across an eight-year period from 2004 to August of 2011
with violations under R.A. 9262 ranking first among the different VAW categories
since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 200 200 200 200 200 200

2010 2011
Cases 4 5 6 7 8 9

1,04
Rape 997 927 659 837 811 770 832
2

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lascivious 580 536 382 358 445 485 745 625
ness

Physical 3,5 2,3 1,8 1,5 1,3 1,4 2,01 1,58

Injuries 53 35 92 05 07 98 8 8

Sexual
Harassmen 53 37 38 46 18 54 83 63
t

1,2 2,3 3,5 5,2 9,97 9,02

RA 9262 218 924
69 87 99 85 4 1

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubina
121 102 93 109 109 99 158 128
ge

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnappin 16 34 23 28 18 25 22
g 29

Unjust 90 50 59 59 83 703 183 155

Vexation

6,2 5,3 4,8 5,7 6,9 9,4 15,1 12,9

Total
71 74 81 29 05 85 04 48

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center

(WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and
violence against men in the Philippines because incidents thereof are relatively low
and, perhaps, because many men will not even attempt to report the situation. In the
United Kingdom, 32% of women who had ever experienced domestic violence did so
four or five (or more) times, compared with 11% of the smaller number of men who
had ever experienced domestic violence; and women constituted 89% of all those
who had experienced 4 or more incidents of domestic violence. 75Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury
than the other way around (18 percent versus 44 percent). Men, who experience
violence from their spouses are much less likely to live in fear of violence at the
hands of their spouses, and much less likely to experience sexual assault. In fact,
many cases of physical violence by a woman against a spouse are in self-defense or
the result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated
against men in the Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-
drawn vehicles to pick up, gather and deposit in receptacles the manure emitted or
discharged by their vehicle-drawing animals in any public highways, streets, plazas,
parks or alleys, said ordinance was challenged as violative of the guaranty of equal
protection of laws as its application is limited to owners and drivers of vehicle-
drawing animals and not to those animals, although not utilized, but similarly pass
through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there
may be non-vehicle-drawing animals that also traverse the city roads, "but their
number must be negligible and their appearance therein merely occasional,
compared to the rig-drawing ones, as not to constitute a menace to the health of the
community."77 The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every classification of
persons or things for regulation by law produces inequality in some degree, but the
law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes
against women are often treated differently and less seriously than other crimes.
This was argued by then United States Senator Joseph R. Biden, Jr., now Vice
President, chief sponsor of the Violence Against Women Act (VAWA), in defending
the civil rights remedy as a valid exercise of the U.S. Congress' authority under the
Commerce and Equal Protection Clauses. He stressed that the widespread gender
bias in the U.S. has institutionalized historic prejudices against victims of rape or
domestic violence, subjecting them to "double victimization" – first at the hands of
the offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill
No. 2723 that "(w)henever violence occurs in the family, the police treat it as a
private matter and advise the parties to settle the conflict themselves. Once the
complainant brings the case to the prosecutor, the latter is hesitant to file the
complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating,
recurring and often serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our
women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila
for Conduct Unbecoming of a Judge. He used derogatory and irreverent language in
reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling
her as "only a live-in partner" and presenting her as an "opportunist" and a
"mistress" in an "illegitimate relationship." Judge Amila even called her a "prostitute,"
and accused her of being motivated by "insatiable greed" and of absconding with the
contested property.81 Such remarks betrayed Judge Amila's prejudices and lack of
gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by
biases and prejudices against women. As emphasized by the CEDAW Committee
on the Elimination of Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women does not discriminate
against men.82Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory
and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant
consideration. As a State Party to the CEDAW, the Philippines bound itself to take
all appropriate measures "to modify the social and cultural patterns of conduct of
men and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require
the development of a distinct mindset on the part of the police, the prosecution and
the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262,
which is to address violence committed against women and children, spelled out in
its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity
of women and children and guarantees full respect for human rights. The State also
recognizes the need to protect the family and its members particularly women and
children, from violence and threats to their personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against
women and children in keeping with the fundamental freedoms guaranteed under
the Constitution and the provisions of the Universal Declaration of Human Rights,
the Convention on the Elimination of All Forms of Discrimination Against Women,
Convention on the Rights of the Child and other international human rights
instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines
ratified on August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was
also ratified by the Philippines on October 6, 2003.86 This Convention mandates that
State parties shall accord to women equality with men before the law87 and shall take
all appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child
and its two protocols.89 It is, thus, bound by said Conventions and their respective
protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when
it was promulgated, but to future conditions as well, for as long as the safety and
security of women and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse.
Section 3 thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is
his wife, former wife, or against a woman with whom the person has or had a sexual
or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in
or is likely to result in physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a

woman or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman

or her child as a sex object, making demeaning and sexually
suggestive remarks, physically attacking the sexual parts of the victim's
body, forcing her/him to watch obscene publications and indecent
shows or forcing the woman or her child to do indecent acts and/or
make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any

sexual activity by force, threat of force, physical or other harm or threat
of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause

mental or emotional suffering of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or humiliation, repeated
verbal abuse and marital infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a member of the family to
which the victim belongs, or to witness pornography in any form or to witness
abusive injury to pets or to unlawful or unwanted deprivation of the right to custody
and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman
financially dependent which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from

engaging in any legitimate profession, occupation, business or activity,
except in cases wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the

right to the use and enjoyment of the conjugal, community or property
owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling

the conjugal money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are
attributable to research that has exposed the dimensions and dynamics of battery.
The acts described here are also found in the U.N. Declaration on the Elimination of
Violence Against Women.90 Hence, the argument advanced by petitioner that the
definition of what constitutes abuse removes the difference between violent action
and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will
confuse petitioner in his defense. The acts enumerated above are easily understood
and provide adequate contrast between the innocent and the prohibited acts. They
are worded with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited, and need not guess at its meaning nor differ
in its application.91 Yet, petitioner insists92that phrases like "depriving or threatening
to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional
anguish" are so vague that they make every quarrel a case of spousal abuse.
However, we have stressed that the "vagueness" doctrine merely requires a
reasonable degree of certainty for the statute to be upheld – not absolute precision
or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute
are clearly delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband
or father as the culprit. As defined above, VAWC may likewise be committed
"against a woman with whom the person has or had a sexual or dating relationship."
Clearly, the use of the gender-neutral word "person" who has or had a sexual or
dating relationship with the woman encompasses even lesbian relationships.
Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not
preclude the application of the principle of conspiracy under the Revised Penal Code
(RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica
Mari L. Go-Tan, the victim, were held to be proper respondents in the case filed by
the latter upon the allegation that they and their son (Go-Tan's husband) had
community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home;
and in repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of
all protections afforded by the due process clause of the Constitution. Says he: "On
the basis of unsubstantiated allegations, and practically no opportunity to respond,
the husband is stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of what
happened."95

A protection order is an order issued to prevent further acts of violence against

women and their children, their family or household members, and to grant other
necessary reliefs. Its purpose is to safeguard the offended parties from further harm,
minimize any disruption in their daily life and facilitate the opportunity and ability to
regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or
offended party is afforded all the remedies necessary to curtail access by a
perpetrator to the victim. This serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated family or household member
safety in the family residence, and to prevent the perpetrator from committing acts
that jeopardize the employment and support of the victim. It also enables the court to
award temporary custody of minor children to protect the children from violence, to
prevent their abduction by the perpetrator and to ensure their financial support." 97

The rules require that petitions for protection order be in writing, signed and verified
by the petitioner98 thereby undertaking full responsibility, criminal or civil, for every
allegation therein. Since "time is of the essence in cases of VAWC if further violence
is to be prevented,"99 the court is authorized to issue ex parte a TPO after raffle but
before notice and hearing when the life, limb or property of the victim is in jeopardy
and there is reasonable ground to believe that the order is necessary to protect the
victim from the immediate and imminent danger of VAWC or to prevent such
violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex
parte order. The victim is required not only to verify the allegations in the petition, but
also to attach her witnesses' affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right
to due process. Just like a writ of preliminary attachment which is issued without
notice and hearing because the time in which the hearing will take could be enough
to enable the defendant to abscond or dispose of his property,102 in the same way,
the victim of VAWC may already have suffered harrowing experiences in the hands
of her tormentor, and possibly even death, if notice and hearing were required
before such acts could be prevented. It is a constitutional commonplace that the
ordinary requirements of procedural due process must yield to the necessities of
protecting vital public interests,103among which is protection of women and children
from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall
likewise order that notice be immediately given to the respondent directing him to file
an opposition within five (5) days from service. Moreover, the court shall order that
notice, copies of the petition and TPO be served immediately on the respondent by
the court sheriffs. The TPOs are initially effective for thirty (30) days from service on
the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate
issuance and service of the notice upon the respondent requiring him to file an
opposition to the petition within five (5) days from service. The date of the
preliminary conference and hearing on the merits shall likewise be indicated on the
notice.105

The opposition to the petition which the respondent himself shall verify, must be
accompanied by the affidavits of witnesses and shall show cause why a temporary
or permanent protection order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection
order should be apprised of the charges imputed to him and afforded an opportunity
to present his side. Thus, the fear of petitioner of being "stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a mere product of an overactive
imagination. The essence of due process is to be found in the reasonable
opportunity to be heard and submit any evidence one may have in support of one's
defense. "To be heard" does not only mean verbal arguments in court; one may be
heard also through pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the
Urgent Ex-Parte Motion for Renewal of the TPO that was granted only two days
earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for the
modification of the TPO to allow him visitation rights to his children. Still, the trial
court in its Order dated September 26, 2006, gave him five days (5) within which to
show cause why the TPO should not be renewed or extended. Yet, he chose not to
file the required comment arguing that it would just be an "exercise in futility,"
conveniently forgetting that the renewal of the questioned TPO was only for a limited
period (30 days) each time, and that he could prevent the continued renewal of said
order if he can show sufficient cause therefor. Having failed to do so, petitioner may
not now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the
VAWC case from the residence of the victim, regardless of ownership of the
residence, is virtually a "blank check" issued to the wife to claim any property as her
conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the
imagination suggest that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include
any, some or all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended
party, regardless of ownership of the residence, either temporarily for the purpose of
protecting the offended party, or permanently where no property rights are violated.
If the respondent must remove personal effects from the residence, the court shall
direct a law enforcement agent to accompany the respondent to the residence,
remain there until the respondent has gathered his things and escort him from the
residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's

residence, regardless of ownership, only temporarily for the purpose of protecting
the latter. Such removal and exclusion may be permanent only where no property
rights are violated. How then can the private respondent just claim any property and
appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of

encouraging mediation and counseling, the law has done violence to the avowed
policy of the State to "protect and strengthen the family as a basic autonomous
social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or
any issue thereof to a mediator. The reason behind this provision is well-explained
by the Commentary on Section 311 of the Model Code on Domestic and Family
Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a

proceeding for an order for protection. Mediation is a process by which parties in
equivalent bargaining positions voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject for compromise. A process which
involves parties mediating the issue of violence implies that the victim is somehow at
fault. In addition, mediation of issues in a proceeding for an order of protection is
problematic because the petitioner is frequently unable to participate equally with the
person against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power
which, under the Constitution, is placed upon the "Supreme Court and such other
lower courts as may be established by law" and, thus, protests the delegation of
power to barangay officials to issue protection orders.111 The pertinent provision
reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. –
Barangay Protection Orders (BPOs) refer to the protection order issued by the
Punong Barangay ordering the perpetrator to desist from committing acts under
Section 5 (a) and (b) of this Act. A Punong Barangay who receives applications for
1âwphi 1

a BPO shall issue the protection order to the applicant on the date of filing after ex
parte determination of the basis of the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the application shall be acted upon
by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad,
the order must be accompanied by an attestation by the Barangay Kagawad that the
Punong Barangay was unavailable at the time of the issuance of the BPO. BPOs
shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte
BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of
the same on the respondent, or direct any barangay official to effect its personal
service.

The parties may be accompanied by a non-lawyer advocate in any proceeding

before the Punong Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.112 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong
Barangay or, in his unavailability, by any available Barangay Kagawad, merely
orders the perpetrator to desist from (a) causing physical harm to the woman or her
child; and (2) threatening to cause the woman or her child physical harm. Such
function of the Punong Barangay is, thus, purely executive in nature, in pursuance of
his duty under the Local Government Code to "enforce all laws and ordinances," and
to "maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into
the existence of certain facts and to apply the law thereto in order to determine what
his official conduct shall be and the fact that these acts may affect private rights do
not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary

inquiry or proceeding "whether there is reasonable ground to believe that an offense
has been committed and the accused is probably guilty thereof," the Punong
Barangay must determine reasonable ground to believe that an imminent danger of
violence against the woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary investigation conducted by the
prosecutor is, concededly, an executive, not a judicial, function. The same holds true
with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials
and other law enforcement agencies are required to extend assistance to victims of
violence and abuse, it would be very unlikely that they would remain objective and
impartial, and that the chances of acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement agencies is consistent with their duty
to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach
of, or a clear conflict with the Constitution, not merely a doubtful or argumentative
one, must be demonstrated in such a manner as to leave no doubt in the mind of the
Court. In other words, the grounds for nullity must be beyond reasonable doubt. 116 In
the instant case, however, no concrete evidence and convincing arguments were
presented by petitioner to warrant a declaration of the unconstitutionality of R.A.
9262, which is an act of Congress and signed into law by the highest officer of the
co-equal executive department. As we said in Estrada v. Sandiganbayan, 117 courts
must assume that the legislature is ever conscious of the borders and edges of its
plenary powers, and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's
movement against domestic violence shows that one of its most difficult struggles
was the fight against the violence of law itself. If we keep that in mind, law will not
again be a hindrance to the struggle of women for equality but will be its
fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack
of merit.

SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

EN BANC

G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR

TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON,
ASENCION PACIENTE, BONIFACIO VACUNA, BENJAMIN PAGCU and
RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.

Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:

The petitioner Philippine Blooming Mills Employees Organization (hereinafter

referred to as PBMEO) is a legitimate labor union composed of the employees of the
respondent Philippine Blooming Mills Co., Inc., and petitioners Nicanor Tolentino,
Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio
Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and members of the
petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass

demonstration at Malacañang on March 4, 1969, in protest against alleged abuses
of the Pasig police, to be participated in by the workers in the first shift (from 6 A.M.
to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4
P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the respondent
Company of their proposed demonstration.

The questioned order dated September 15, 1969, of Associate Judge Joaquin M.
Salvador of the respondent Court reproduced the following stipulation of facts of the
parties — parties —

3. That on March 2, 1969 complainant company learned of the

projected mass demonstration at Malacañang in protest against
alleged abuses of the Pasig Police Department to be participated by
the first shift (6:00 AM-2:00 PM) workers as well as those working in
the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at

about 11:00 A.M. at the Company's canteen, and those present were:
for the Company: (1) Mr. Arthur L. Ang (2) Atty. S. de Leon, Jr., (3) and
all department and section heads. For the PBMEO (1) Florencio
 Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who acted as spokesman of the union
panel, confirmed the planned demonstration and stated that the
demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union
has no quarrel or dispute with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel

manager, informed PBMEO that the demonstration is an inalienable
right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For which reason, the
Company, thru Atty. C.S. de Leon warned the PBMEO representatives
that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly , the
officers present who are the organizers of the demonstration, who shall
fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was

convoked Company represented by Atty. C.S. de Leon, Jr. The Union
panel was composed of: Nicanor Tolentino, Rodolfo Munsod, Benjamin
Pagcu and Florencio Padrigano. In this afternoon meeting of March 3,
1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4,
1969 should be excused from joining the demonstration and should
report for work; and thus utilize the workers in the 2nd and 3rd shifts in
order not to violate the provisions of the CBA, particularly Article XXIV:
NO LOCKOUT — NO STRIKE'. All those who will not follow this
warning of the Company shall be dismiss; De Leon reiterated the
Company's warning that the officers shall be primarily liable being the
organizers of the mass demonstration. The union panel countered that
it was rather too late to change their plans inasmuch as the
Malacañang demonstration will be held the following morning; and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a

cablegram to the Company which was received 9:50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION
MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)

Because the petitioners and their members numbering about 400 proceeded with
the demonstration despite the pleas of the respondent Company that the first shift
workers should not be required to participate in the demonstration and that the
workers in the second and third shifts should be utilized for the demonstration from 6
A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass
demonstration on March 4, 1969, with the respondent Court, a charge against
petitioners and other employees who composed the first shift, charging them with a
"violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15,
all of Republic Act No. 875, and of the CBA providing for 'No Strike and No Lockout.'
" (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit of
Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a
corresponding complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor
Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate
the existing CBA because they gave the respondent Company prior notice of the
mass demonstration on March 4, 1969; that the said mass demonstration was a
valid exercise of their constitutional freedom of speech against the alleged abuses of
some Pasig policemen; and that their mass demonstration was not a declaration of
strike because it was not directed against the respondent firm (Annex "D", pp. 31-34,
rec.)

After considering the aforementioned stipulation of facts submitted by the parties,

Judge Joaquin M. Salvador, in an order dated September 15, 1969, found herein
petitioner PBMEO guilty of bargaining in bad faith and herein petitioners Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for
perpetrating the said unfair labor practice and were, as a consequence, considered
to have lost their status as employees of the respondent Company (Annex "F", pp.
42-56, rec.)

Herein petitioners claim that they received on September 23, 1969, the aforesaid
order (p. 11, rec.); and that they filed on September 29, 1969, because September
28, 1969 fell on Sunday (p. 59, rec.), a motion for reconsideration of said order dated
September 15, 1969, on the ground that it is contrary to law and the evidence, as
well as asked for ten (10) days within which to file their arguments pursuant to
Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60,
rec. )

In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.),
respondent Company averred that herein petitioners received on September 22,
1969, the order dated September 17 (should be September 15), 1969; that under
Section 15 of the amended Rules of the Court of Industrial Relations, herein
petitioners had five (5) days from September 22, 1969 or until September 27, 1969,
within which to file their motion for reconsideration; and that because their motion for
reconsideration was two (2) days late, it should be accordingly dismissed,
invoking Bien vs. Castillo,1 which held among others, that a motion for extension of
the five-day period for the filing of a motion for reconsideration should be filed before
the said five-day period elapses (Annex "M", pp. 61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments
dated October 11, 1969, in support of their motion for reconsideration (Annex "I", pp.
65-73, rec.).

In a resolution dated October 9, 1969, the respondent en banc dismissed the motion
for reconsideration of herein petitioners for being pro forma as it was filed beyond
the reglementary period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which
herein petitioners received on October 28, 196 (pp. 12 & 76, rec.).

At the bottom of the notice of the order dated October 9, 1969, which was released
on October 24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.),
appear the requirements of Sections 15, 16 and 17, as amended, of the Rules of the
Court of Industrial Relations, that a motion for reconsideration shall be filed within
five (5) days from receipt of its decision or order and that an appeal from the
decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within
ten (10) days from receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition for
relief from the order dated October 9, 1969, on the ground that their failure to file
their motion for reconsideration on time was due to excusable negligence and
honest mistake committed by the president of the petitioner Union and of the office
clerk of their counsel, attaching thereto the affidavits of the said president and clerk
(Annexes "K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order dated
October 9, 1969, herein petitioners filed on November 3, 1969, with the Supreme
Court, a notice of appeal (Annex "L", pp. 88-89, rec.).

There is need of briefly restating basic concepts and principles which underlie the
issues posed by the case at bar.

(1) In a democracy, the preservation and enhancement of the dignity and worth of
the human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be "protected to
the largest possible extent in his thoughts and in his beliefs as the citadel of his
person."2

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and
security "against the assaults of opportunism, the expediency of the passing hour,
the erosion of small encroachments, and the scorn and derision of those who have
no patience with general principles."3

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights
is to withdraw "certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, and to establish them as legal
principles to be applied by the courts. One's rights to life, liberty and property, to free
speech, or free press, freedom of worship and assembly, and other fundamental
rights may not be submitted to a vote; they depend on the outcome of no
elections."4 Laski proclaimed that "the happiness of the individual, not the well-being
of the State, was the criterion by which its behaviour was to be judged. His interests,
not its power, set the limits to the authority it was entitled to exercise."5

(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than
the ideas we cherish; or as Socrates insinuated, not only to protect the minority who
want to talk, but also to benefit the majority who refuse to listen.6 And as Justice
Douglas cogently stresses it, the liberties of one are the liberties of all; and the
liberties of one are not safe unless the liberties of all are protected.7

(4) The rights of free expression, free assembly and petition, are not only civil rights
but also political rights essential to man's enjoyment of his life, to his happiness and
to his full and complete fulfillment. Thru these freedoms the citizens can participate
not merely in the periodic establishment of the government through their suffrage but
also in the administration of public affairs as well as in the discipline of abusive
public officers. The citizen is accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for redress and protection as well as
for the imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights
over property rights is recognized.8 Because these freedoms are "delicate and
vulnerable, as well as supremely precious in our society" and the "threat of sanctions
may deter their exercise almost as potently as the actual application of sanctions,"
they "need breathing space to survive," permitting government regulation only "with
narrow specificity."9

Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill
of Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, of the influential and
powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality of
our civil and political institutions; 10 and such priority "gives these liberties the sanctity
and the sanction not permitting dubious intrusions." 11

The superiority of these freedoms over property rights is underscored by the fact that
a mere reasonable or rational relation between the means employed by the law and
its object or purpose — that the law is neither arbitrary nor discriminatory nor
oppressive — would suffice to validate a law which restricts or impairs property
rights. 12 On the other hand, a constitutional or valid infringement of human rights
requires a more stringent criterion, namely existence of a grave and immediate
danger of a substantive evil which the State has the right to prevent. So it has been
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and
reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It should be added that
Mr. Justice Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black
and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech
and of the press as well as of peaceful assembly and of petition for redress of
grievances are absolute when directed against public officials or "when exercised in
relation to our right to choose the men and women by whom we shall be
governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests
test. 16 Chief Justice Vinson is partial to the improbable danger rule formulated by
Chief Judge Learned Hand, viz. — whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free expression as is necessary to avoid the
danger. 17

II

The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their "concerted act
and the occurrence temporary stoppage of work," herein petitioners are guilty
bargaining in bad faith and hence violated the collective bargaining agreement with
private respondent Philippine Blooming Mills Co., inc.. Set against and tested by
foregoing principles governing a democratic society, such conclusion cannot be
sustained. The demonstration held petitioners on March 4, 1969 before Malacañang
was against alleged abuses of some Pasig policemen, not against their employer,
herein private respondent firm, said demonstrate was purely and completely an
exercise of their freedom expression in general and of their right of assembly and
petition for redress of grievances in particular before appropriate governmental
agency, the Chief Executive, again the police officers of the municipality of Pasig.
They exercise their civil and political rights for their mutual aid protection from what
they believe were police excesses. As matter of fact, it was the duty of herein private
respondent firm to protect herein petitioner Union and its members fro the
harassment of local police officers. It was to the interest herein private respondent
firm to rally to the defense of, and take up the cudgels for, its employees, so that
they can report to work free from harassment, vexation or peril and as consequence
perform more efficiently their respective tasks enhance its productivity as well as
profits. Herein respondent employer did not even offer to intercede for its employees
with the local police. Was it securing peace for itself at the expenses of its workers?
Was it also intimidated by the local police or did it encourage the local police to
terrorize or vex its workers? Its failure to defend its own employees all the more
weakened the position of its laborers the alleged oppressive police who might have
been all the more emboldened thereby subject its lowly employees to further
indignities.

In seeking sanctuary behind their freedom of expression well as their right of

assembly and of petition against alleged persecution of local officialdom, the
employees and laborers of herein private respondent firm were fighting for their very
survival, utilizing only the weapons afforded them by the Constitution — the
untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its
employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for
the preservation merely of their property rights. Such apprehended loss or damage
would not spell the difference between the life and death of the firm or its owners or
its management. The employees' pathetic situation was a stark reality — abused,
harassment and persecuted as they believed they were by the peace officers of the
municipality. As above intimated, the condition in which the employees found
themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their
right to individual existence as well as that of their families. Material loss can be
repaired or adequately compensated. The debasement of the human being broken
in morale and brutalized in spirit-can never be fully evaluated in monetary terms. The
wounds fester and the scars remain to humiliate him to his dying day, even as he
cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues.

As heretofore stated, the primacy of human rights — freedom of expression, of

peaceful assembly and of petition for redress of grievances — over property rights
has been sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon —
at once the shield and armor of the dignity and worth of the human personality, the
all-consuming ideal of our enlightened civilization — becomes Our duty, if freedom
and social justice have any meaning at all for him who toils so that capital can
produce economic goods that can generate happiness for all. To regard the
demonstration against police officers, not against the employer, as evidence of bad
faith in collective bargaining and hence a violation of the collective bargaining
agreement and a cause for the dismissal from employment of the demonstrating
employees, stretches unduly the compass of the collective bargaining agreement, is
"a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal
wound on the constitutional guarantees of free expression, of peaceful assembly
and of petition. 19

The collective bargaining agreement which fixes the working shifts of the employees,
according to the respondent Court Industrial Relations, in effect imposes on the
workers the "duty ... to observe regular working hours." The strain construction of the
Court of Industrial Relations that a stipulated working shifts deny the workers the
right to stage mass demonstration against police abuses during working hours,
constitutes a virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such a
slender ground.

The mass demonstration staged by the employees on March 4, 1969 could not have
been legally enjoined by any court, such an injunction would be trenching upon the
freedom expression of the workers, even if it legally appears to be illegal picketing or
strike. 20 The respondent Court of Industrial Relations in the case at bar concedes
that the mass demonstration was not a declaration of a strike "as the same not
rooted in any industrial dispute although there is concerted act and the occurrence of
a temporary stoppage work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to
participate in the demonstration and that they suggested to the Union that only the
first and regular shift from 6 A.M. to 2 P.M. should report for work in order that loss
or damage to the firm will be averted. This stand failed appreciate the sine qua
non of an effective demonstration especially by a labor union, namely the complete
unity of the Union members as well as their total presence at the demonstration site
in order to generate the maximum sympathy for the validity of their cause but also
immediately action on the part of the corresponding government agencies with
jurisdiction over the issues they raised against the local police. Circulation is one of
the aspects of freedom of expression. 21 If demonstrators are reduced by one-third,
then by that much the circulation of the issues raised by the demonstration is
diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be
regarded as a substantial indication of disunity in their ranks which will enervate their
position and abet continued alleged police persecution. At any rate, the Union
notified the company two days in advance of their projected demonstration and the
company could have made arrangements to counteract or prevent whatever losses it
might sustain by reason of the absence of its workers for one day, especially in this
case when the Union requested it to excuse only the day-shift employees who will
join the demonstration on March 4, 1969 which request the Union reiterated in their
telegram received by the company at 9:50 in the morning of March 4, 1969, the day
of the mass demonstration (pp. 42-43, rec.). There was a lack of human
understanding or compassion on the part of the firm in rejecting the request of the
Union for excuse from work for the day shifts in order to carry out its mass
demonstration. And to regard as a ground for dismissal the mass demonstration held
against the Pasig police, not against the company, is gross vindictiveness on the
part of the employer, which is as unchristian as it is unconstitutional.

III

The respondent company is the one guilty of unfair labor practice. Because the
refusal on the part of the respondent firm to permit all its employees and workers to
join the mass demonstration against alleged police abuses and the subsequent
separation of the eight (8) petitioners from the service constituted an unconstitutional
restraint on the freedom of expression, freedom of assembly and freedom petition
for redress of grievances, the respondent firm committed an unfair labor practice
defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise
known as the Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to
the employees the right "to engage in concert activities for ... mutual aid or
protection"; while Section 4(a-1) regards as an unfair labor practice for an employer
interfere with, restrain or coerce employees in the exercise their rights guaranteed in
Section Three."

We repeat that the obvious purpose of the mass demonstration staged by the
workers of the respondent firm on March 4, 1969, was for their mutual aid and
protection against alleged police abuses, denial of which was interference with or
restraint on the right of the employees to engage in such common action to better
shield themselves against such alleged police indignities. The insistence on the part
of the respondent firm that the workers for the morning and regular shift should not
participate in the mass demonstration, under pain of dismissal, was as heretofore
stated, "a potent means of inhibiting speech." 22

Such a concerted action for their mutual help and protection deserves at least equal
protection as the concerted action of employees in giving publicity to a letter
complaint charging bank president with immorality, nepotism, favoritism an
discrimination in the appointment and promotion of ban employees. 23 We further
ruled in the Republic Savings Bank case, supra, that for the employees to come
within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act
No. 875, "it is not necessary that union activity be involved or that collective
bargaining be contemplated," as long as the concerted activity is for the furtherance
of their interests. 24

As stated clearly in the stipulation of facts embodied in the questioned order of

respondent Court dated September 15, 1969, the company, "while expressly
acknowledging, that the demonstration is an inalienable right of the Union
guaranteed by the Constitution," nonetheless emphasized that "any demonstration
for that matter should not unduly prejudice the normal operation of the company"
and "warned the PBMEO representatives that workers who belong to the first and
regular shifts, who without previous leave of absence approved by the Company,
particularly the officers present who are the organizers of the demonstration, who
shall fail to report for work the following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal
tended to coerce the employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were more important to
them because they had the courage to proceed with the demonstration, despite such
threat of dismissal. The most that could happen to them was to lose a day's wage by
reason of their absence from work on the day of the demonstration. One day's pay
means much to a laborer, more especially if he has a family to support. Yet, they
were willing to forego their one-day salary hoping that their demonstration would
bring about the desired relief from police abuses. But management was adamant in
refusing to recognize the superior legitimacy of their right of free speech, free
assembly and the right to petition for redress.

Because the respondent company ostensibly did not find it necessary to demand
from the workers proof of the truth of the alleged abuses inflicted on them by the
local police, it thereby concedes that the evidence of such abuses should properly
be submitted to the corresponding authorities having jurisdiction over their complaint
and to whom such complaint may be referred by the President of the Philippines for
proper investigation and action with a view to disciplining the local police officers
involved.

On the other hand, while the respondent Court of Industrial Relations found that the
demonstration "paralyzed to a large extent the operations of the complainant
company," the respondent Court of Industrial Relations did not make any finding as
to the fact of loss actually sustained by the firm. This significant circumstance can
only mean that the firm did not sustain any loss or damage. It did not present
evidence as to whether it lost expected profits for failure to comply with purchase
orders on that day; or that penalties were exacted from it by customers whose
orders could not be filled that day of the demonstration; or that purchase orders were
cancelled by the customers by reason of its failure to deliver the materials ordered;
or that its own equipment or materials or products were damaged due to absence of
its workers on March 4, 1969. On the contrary, the company saved a sizable amount
in the form of wages for its hundreds of workers, cost of fuel, water and electric
consumption that day. Such savings could have amply compensated for unrealized
profits or damages it might have sustained by reason of the absence of its workers
for only one day.

IV

Apart from violating the constitutional guarantees of free speech and assembly as
well as the right to petition for redress of grievances of the employees, the dismissal
of the eight (8) leaders of the workers for proceeding with the demonstration and
consequently being absent from work, constitutes a denial of social justice likewise
assured by the fundamental law to these lowly employees. Section 5 of Article II of
the Constitution imposes upon the State "the promotion of social justice to insure the
well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the Constitution that
"the State shall afford protection to labor ...". Respondent Court of Industrial
Relations as an agency of the State is under obligation at all times to give meaning
and substance to these constitutional guarantees in favor of the working man; for
otherwise these constitutional safeguards would be merely a lot of "meaningless
constitutional patter." Under the Industrial Peace Act, the Court of Industrial
Relations is enjoined to effect the policy of the law "to eliminate the causes of
industrial unrest by encouraging and protecting the exercise by employees of their
right to self-organization for the purpose of collective bargaining and for the
promotion of their moral, social and economic well-being." It is most unfortunate in
the case at bar that respondent Court of Industrial Relations, the very governmental
agency designed therefor, failed to implement this policy and failed to keep faith with
its avowed mission — its raison d'etre — as ordained and directed by the
Constitution.

It has been likewise established that a violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and confers
no rights. Relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even long after the
finality of the judgment. Thus, habeas corpus is the remedy to obtain the release of
an individual, who is convicted by final judgment through a forced confession, which
violated his constitutional right against self-incrimination; 25 or who is denied the right
to present evidence in his defense as a deprivation of his liberty without due process
of law, 26 even after the accused has already served sentence for twenty-two years. 27

Both the respondents Court of Industrial Relations and private firm trenched upon
these constitutional immunities of petitioners. Both failed to accord preference to
such rights and aggravated the inhumanity to which the aggrieved workers claimed
they had been subjected by the municipal police. Having violated these basic human
rights of the laborers, the Court of Industrial Relations ousted itself of jurisdiction and
the questioned orders it issued in the instant case are a nullity. Recognition and
protection of such freedoms are imperative on all public offices including the
courts 28 as well as private citizens and corporations, the exercise and enjoyment of
which must not be nullified by mere procedural rule promulgated by the Court
Industrial Relations exercising a purely delegate legislative power, when even a law
enacted by Congress must yield to the untrammelled enjoyment of these human
rights. There is no time limit to the exercise of the freedoms. The right to enjoy them
is not exhausted by the delivery of one speech, the printing of one article or the
staging of one demonstration. It is a continuing immunity to be invoked and
exercised when exigent and expedient whenever there are errors to be rectified,
abuses to be denounced, inhumanities to be condemned. Otherwise these
guarantees in the Bill of Rights would be vitiated by rule on procedure prescribing
the period for appeal. The battle then would be reduced to a race for time. And in
such a contest between an employer and its laborer, the latter eventually loses
because he cannot employ the best an dedicated counsel who can defend his
interest with the required diligence and zeal, bereft as he is of the financial resources
with which to pay for competent legal services. 28-a

VI

The Court of Industrial Relations rule prescribes that motion for reconsideration of its
order or writ should filed within five (5) days from notice thereof and that the
arguments in support of said motion shall be filed within ten (10) days from the date
of filing of such motion for reconsideration (Sec. 16). As above intimated, these rules
of procedure were promulgated by the Court of Industrial Relations pursuant to a
legislative delegation. 29

The motion for reconsideration was filed on September 29, 1969, or seven (7) days
from notice on September 22, 1969 of the order dated September 15, 1969 or two
(2) days late. Petitioners claim that they could have filed it on September 28, 1969,
but it was a Sunday.

Does the mere fact that the motion for reconsideration was filed two (2) days late
defeat the rights of the petitioning employees? Or more directly and concretely, does
the inadvertent omission to comply with a mere Court of Industrial Relations
procedural rule governing the period for filing a motion for reconsideration or appeal
in labor cases, promulgated pursuant to a legislative delegation, prevail over
constitutional rights? The answer should be obvious in the light of the aforecited
cases. To accord supremacy to the foregoing rules of the Court of Industrial
Relations over basic human rights sheltered by the Constitution, is not only
incompatible with the basic tenet of constitutional government that the Constitution is
superior to any statute or subordinate rules and regulations, but also does violence
to natural reason and logic. The dominance and superiority of the constitutional right
over the aforesaid Court of Industrial Relations procedural rule of necessity should
be affirmed. Such a Court of Industrial Relations rule as applied in this case does not
implement or reinforce or strengthen the constitutional rights affected,' but instead
constrict the same to the point of nullifying the enjoyment thereof by the petitioning
employees. Said Court of Industrial Relations rule, promulgated as it was pursuant
to a mere legislative delegation, is unreasonable and therefore is beyond the
authority granted by the Constitution and the law. A period of five (5) days within
which to file a motion for reconsideration is too short, especially for the aggrieved
workers, who usually do not have the ready funds to meet the necessary expenses
therefor. In case of the Court of Appeals and the Supreme Court, a period of fifteen
(15) days has been fixed for the filing of the motion for re hearing or reconsideration
(See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The
delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness
of the Court of Industrial are concerned.

It should be stressed here that the motion for reconsideration dated September 27,
1969, is based on the ground that the order sought to be reconsidered "is not in
accordance with law, evidence and facts adduced during the hearing," and likewise
prays for an extension of ten (10) days within which to file arguments pursuant to
Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex "G",
pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners
on October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period
required for the filing of such supporting arguments counted from the filing of the
motion for reconsideration. Herein petitioners received only on October 28, 1969 the
resolution dated October 9, 1969 dismissing the motion for reconsideration for
being pro forma since it was filed beyond the reglementary period (Annex "J", pp.
74-75, rec.)

It is true that We ruled in several cases that where a motion to reconsider is filed out
of time, or where the arguments in suppf such motion are filed beyond the 10 day
reglementary period provided for by the Court of Industrial Relations rules, the order
or decision subject of29-a reconsideration becomes final and unappealable. But in all
these cases, the constitutional rights of free expression, free assembly and petition
were not involved.
It is a procedural rule that generally all causes of action and defenses presently
available must be specifically raised in the complaint or answer; so that any cause of
action or defense not raised in such pleadings, is deemed waived. However, a
constitutional issue can be raised any time, even for the first time on appeal, if it
appears that the determination of the constitutional issue is necessary to a decision
of the case, the very lis mota of the case without the resolution of which no final and
complete determination of the dispute can be made. 30 It is thus seen that a
procedural rule of Congress or of the Supreme Court gives way to a constitutional
right. In the instant case, the procedural rule of the Court of Industrial Relations, a
creature of Congress, must likewise yield to the constitutional rights invoked by
herein petitioners even before the institution of the unfair labor practice charged
against them and in their defense to the said charge.

In the case at bar, enforcement of the basic human freedoms sheltered no less by
the organic law, is a most compelling reason to deny application of a Court of
Industrial Relations rule which impinges on such human rights. 30-a

It is an accepted principle that the Supreme Court has the inherent power to
"suspend its own rules or to except a particular case from its operation, whenever
the purposes of justice require." 30-b Mr. Justice Barredo in his concurring opinion
in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that

Under this authority, this Court is enabled to cove with all situations
without concerning itself about procedural niceties that do not square
with the need to do justice, in any case, without further loss of time,
provided that the right of the parties to a full day in court is not
substantially impaired. Thus, this Court may treat an appeal as a
certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly
heard, it matters little that the error of the court a quo is of judgment or
of jurisdiction. We can then and there render the appropriate judgment.
Is within the contemplation of this doctrine that as it is perfectly legal
and within the power of this Court to strike down in an appeal acts
without or in excess of jurisdiction or committed with grave abuse of
discretion, it cannot be beyond the admit of its authority, in appropriate
cases, to reverse in a certain proceed in any error of judgment of a
court a quo which cannot be exactly categorized as a flaw of
jurisdiction. If there can be any doubt, which I do not entertain, on
whether or not the errors this Court has found in the decision of the
Court of Appeals are short of being jurisdiction nullities or excesses,
this Court would still be on firm legal grounds should it choose to
reverse said decision here and now even if such errors can be
considered as mere mistakes of judgment or only as faults in the
exercise of jurisdiction, so as to avoid the unnecessary return of this
case to the lower court for the sole purpose of pursuing the ordinary
course of an appeal. (Emphasis supplied). 30-d

Insistence on the application of the questioned Court industrial Relations rule in this
particular case at bar would an unreasoning adherence to "Procedural niceties"
which denies justice to the herein laborers, whose basic human freedoms, including
the right to survive, must be according supremacy over the property rights of their
employer firm which has been given a full hearing on this case, especially when, as
in the case at bar, no actual material damage has be demonstrated as having been
inflicted on its property rights.

If We can disregard our own rules when justice requires it, obedience to the
Constitution renders more imperative the suspension of a Court of Industrial
Relations rule that clash with the human rights sanctioned and shielded with
resolution concern by the specific guarantees outlined in the organic law. It should
be stressed that the application in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein respondent firm is unreasonable and
therefore such application becomes unconstitutional as it subverts the human rights
of petitioning labor union and workers in the light of the peculiar facts and
circumstances revealed by the record.

The suspension of the application of Section 15 of the Court of Industrial Relations

rules with reference to the case at is also authorized by Section 20 of
Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of Industrial
Relations to "act according to justice and equity and substantial merits of the case,
without regard to technicalities or legal forms ..."

On several occasions, We emphasized this doctrine which was re-stated by Mr.

Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs.
Hamilton, etc., et. al., 30-e thus:

As to the point that the evidence being offered by the petitioners in the
motion for new trial is not "newly discovered," as such term is
understood in the rules of procedure for the ordinary courts, We hold
that such criterion is not binding upon the Court of Industrial Relations.
Under Section 20 of Commonwealth Act No. 103, 'The Court of
Industrial Relations shall adopt its, rules or procedure and shall have
such other powers as generally pertain to a court of justice: Provided,
however, That in the hearing, investigation and determination of any
question or controversy and in exercising any duties and power under
this Act, the Court shall act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal
forms and shall not be bound by any technical rules of legal evidence
but may inform its mind in such manner as it may deem just and
equitable.' By this provision the industrial court is disengaged from the
rigidity of the technicalities applicable to ordinary courts. Said court is
not even restricted to the specific relief demanded by the parties but
may issue such orders as may be deemed necessary or expedient for
the purpose of settling the dispute or dispelling any doubts that may
give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb.
17, 1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.)
For these reasons, We believe that this provision is ample enough to
have enabled the respondent court to consider whether or not its
previous ruling that petitioners constitute a minority was founded on
fact, without regard to the technical meaning of newly discovered
evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker,
46 Phil. 578). (emphasis supplied.)

To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in
the instant case is to rule in effect that the poor workers, who can ill-afford an alert
competent lawyer, can no longer seek the sanctuary of human freedoms secured to
them by the fundamental law, simply because their counsel — erroneously believing
that he received a copy of the decision on September 23, 1969, instead of
September 22, 1969 - filed his motion for reconsideration September 29, 1969,
which practically is only one day late considering that September 28, 1969 was a
Sunday.

Many a time, this Court deviated from procedure technicalities when they ceased to
be instruments of justice, for the attainment of which such rules have been devised.
Summarizing the jurisprudence on this score, Mr. Justice Fernando, speaking for a
unanimous Court in Palma vs. Oreta, 30-f Stated:

As was so aptly expressed by Justice Moreland in Alonso v.

Villamor (16 Phil. 315 [1910]. The Villamor decision was cited with
approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949];
Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy,
14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice and
becomes its great hindrance and chief enemy, deserves scant
consideration from courts." (Ibid., p, 322.) To that norm, this Court has
remained committed. The late Justice Recto in Blanco v. Bernabe, (63
Phil. 124 [1936]) was of a similar mind. For him the interpretation of
procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their
entirety, 'they were adopted not as ends themselves for the compliance
with which courts have organized and function, but as means
conducive to the realization the administration of the law and of justice
(Ibid., p.,128). We have remained steadfastly opposed, in the highly
rhetorical language Justice Felix, to "a sacrifice of substantial rights of
a litigant in altar of sophisticated technicalities with impairment of the
sacred principles of justice." (Potenciano v. Court of Appeals, 104 Phil.
156, 161 [1958]). As succinctly put by Justice Makalintal, they "should
give way to the realities of the situation." (Urbayan v. Caltex, L-15379,
Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest decision in point
promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee
v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar
was partial to an earlier formulation of Justice Labrador that rules of
procedure "are not to be applied in a very rigid, technical sense"; but
are intended "to help secure substantial justice." (Ibid., p. 843) ... 30-g

Even if the questioned Court of Industrial Relations orders and rule were to be given
effect, the dismissal or termination of the employment of the petitioning eight (8)
leaders of the Union is harsh for a one-day absence from work. The respondent
Court itself recognized the severity of such a sanction when it did not include the
dismissal of the other 393 employees who are members of the same Union and who
participated in the demonstration against the Pasig police. As a matter of fact, upon
the intercession of the Secretary of Labor, the Union members who are not officers,
were not dismissed and only the Union itself and its thirteen (13) officers were
specifically named as respondents in the unfair labor practice charge filed against
them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-30,
rec.). Counsel for respondent firm insinuates that not all the 400 or so employee
participated in the demonstration, for which reason only the Union and its thirteen
(13) officers were specifically named in the unfair labor practice charge (p. 20,
respondent's brief). If that were so, then many, if not all, of the morning and regular
shifts reported for work on March 4, 1969 and that, as a consequence, the firm
continued in operation that day and did not sustain any damage.

The appropriate penalty — if it deserves any penalty at all — should have been
simply to charge said one-day absence against their vacation or sick leave. But to
dismiss the eight (8) leaders of the petitioner Union is a most cruel penalty, since as
aforestated the Union leaders depend on their wages for their daily sustenance as
well as that of their respective families aside from the fact that it is a lethal blow to
unionism, while at the same time strengthening the oppressive hand of the petty
tyrants in the localities.

Mr. Justice Douglas articulated this pointed reminder:

 The challenge to our liberties comes frequently not from those who
consciously seek to destroy our system of Government, but from men
of goodwill — good men who allow their proper concerns to blind them
to the fact that what they propose to accomplish involves an
impairment of liberty.

... The Motives of these men are often commendable. What we must
remember, however, is thatpreservation of liberties does not depend
on motives. A suppression of liberty has the same effect whether the
suppress or be a reformer or an outlaw. The only protection against
misguided zeal is a constant alertness of the infractions of the
guarantees of liberty contained in our Constitution. Each surrender of
liberty to the demands of the moment makes easier another, larger
surrender. The battle over the Bill of Rights is a never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the Liberties of none are safe unless the liberties of all are
protected.

... But even if we should sense no danger to our own liberties, even if
we feel secure because we belong to a group that is important and
respected, we must recognize that our Bill of Rights is a code of fair
play for the less fortunate that we in all honor and good conscience
must be observe. 31

The case at bar is worse.

Management has shown not only lack of good-will or good intention, but a complete
lack of sympathetic understanding of the plight of its laborers who claim that they are
being subjected to indignities by the local police, It was more expedient for the firm
to conserve its income or profits than to assist its employees in their fight for their
freedoms and security against alleged petty tyrannies of local police officers. This is
sheer opportunism. Such opportunism and expediency resorted to by the
respondent company assaulted the immunities and welfare of its employees. It was
pure and implement selfishness, if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where
the petitioner Bank dismissed eight (8) employees for having written and published
"a patently libelous letter ... to the Bank president demanding his resignation on the
grounds of immorality, nepotism in the appointment and favoritism as well as
discrimination in the promotion of bank employees." Therein, thru Mr. Justice Castro,
We ruled:

It will avail the Bank none to gloat over this admission of the
respondents. Assuming that the latter acted in their individual
capacities when they wrote the letter-charge they were nonetheless
protected for they were engaged in concerted activity, in the exercise
of their right of self organization that includes concerted activity for
mutual aid and protection, (Section 3 of the Industrial Peace Act ...)
This is the view of some members of this Court. For, as has been aptly
stated, the joining in protests or demands, even by a small group of
employees, if in furtherance of their interests as such, is a concerted
activity protected by the Industrial Peace Act. It is not necessary that
union activity be involved or that collective bargaining be
contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
 xxx xxx xxx

Instead of stifling criticism, the Bank should have allowed the

respondents to air their grievances.

xxx xxx xxx

The Bank defends its action by invoking its right to discipline for what it
calls the respondents' libel in giving undue publicity to their letter-
charge. To be sure, the right of self-organization of employees is not
unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as
the right of the employer to discharge for cause (Philippine Education
Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
undenied. The Industrial Peace Act does not touch the normal exercise
of the right of the employer to select his employees or to discharge
them. It is directed solely against the abuse of that right by interfering
with the countervailing right of self organization (Phelps Dodge Corp. v.
NLRB 313 U.S. 177 [1941])...

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the
Bank's conduct, identified as an interference with the employees' right
of self-organization or as a retaliatory action, and/or as a refusal to
bargain collectively, constituted an unfair labor practice within the
meaning and intendment of section 4(a) of the Industrial Peace Act.
(Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism
in the Republic Savings case, supra, where the complaint assailed the morality and
integrity of the bank president no less, such recognition and protection for free
speech, free assembly and right to petition are rendered all the more justifiable and
more imperative in the case at bar, where the mass demonstration was not against
the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial
Relations dated September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay
from the date of their separation from the service until re instated, minus one day's
pay and whatever earnings they might have realized from other sources during their
separation from the service.

With costs against private respondent Philippine Blooming Company, Inc.

Zaldivar, Castro, Fernando and Esguerra, JJ., concur.

Makalintal, C.J, took no part.

FIRST DIVISION

[G.R. No. 128845. June 1, 2000]

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS
(ISAE), petitioner, vs.HON. LEONARDO A. QUISUMBING in his
capacity as the Secretary of Labor and Employment; HON.
CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary
of Labor and Employment; DR. BRIAN MACCAULEY in his capacity
as the Superintendent of International School-Manila; and
INTERNATIONAL SCHOOL, INC., respondents.

DECISION

KAPUNAN, J.:

Receiving salaries less than their counterparts hired abroad, the local-hires
of private respondent School, mostly Filipinos, cry discrimination. We
agree. That the local-hires are paid more than their colleagues in other
schools is, of course, beside the point. The point is that employees should
be given equal pay for work of equal value. That is a principle long honored
in this jurisdiction. That is a principle that rests on fundamental notions of
justice. That is the principle we uphold today.

Private respondent International School, Inc. (the School, for short),

pursuant to Presidential Decree 732, is a domestic educational institution
established primarily for dependents of foreign diplomatic personnel and
other temporary residents. To enable the School to continue carrying out
[1]

its educational program and improve its standard of instruction, Section

2(c) of the same decree authorizes the School to

employ its own teaching and management personnel selected

by it either locally or abroad, from Philippine or other
nationalities, such personnel being exempt from otherwise
applicable laws and regulations attending their employment,
except laws that have been or will be enacted for the protection
of employees.

Accordingly, the School hires both foreign and local teachers as members
of its faculty, classifying the same into two: (1) foreign-hires and (2) local-
hires. The School employs four tests to determine whether a faculty
member should be classified as a foreign-hire or a local hire:

a.....What is one's domicile?

b.....Where is one's home economy?

c.....To which country does one owe economic allegiance?

d.....Was the individual hired abroad specifically to work in the

School and was the School responsible for bringing that
individual to the Philippines? [2]

Should the answer to any of these queries point to the Philippines, the
faculty member is classified as a local hire; otherwise, he or she is deemed
a foreign-hire.
The School grants foreign-hires certain benefits not accorded local-hires.
These include housing, transportation, shipping costs, taxes, and home
leave travel allowance. Foreign-hires are also paid a salary rate twenty-five
percent (25%) more than local-hires. The School justifies the difference on
two "significant economic disadvantages" foreign-hires have to endure,
namely: (a) the "dislocation factor" and (b) limited tenure. The School
explains:

A foreign-hire would necessarily have to uproot himself from

his home country, leave his family and friends, and take the
risk of deviating from a promising career path-all for the
purpose of pursuing his profession as an educator, but this
time in a foreign land. The new foreign hire is faced with
economic realities: decent abode for oneself and/or for one's
family, effective means of transportation, allowance for the
education of one's children, adequate insurance against illness
and death, and of course the primary benefit of a basic
salary/retirement compensation.

Because of a limited tenure, the foreign hire is confronted

again with the same economic reality after his term: that he will
eventually and inevitably return to his home country where he
will have to confront the uncertainty of obtaining suitable
employment after a long period in a foreign land.

The compensation scheme is simply the School's adaptive

measure to remain competitive on an international level in
terms of attracting competent professionals in the field of
international education. [3]

When negotiations for a new collective bargaining agreement were held on

June 1995, petitioner International School Alliance of Educators, "a
legitimate labor union and the collective bargaining representative of all
faculty members" of the School, contested the difference in salary rates
[4]

between foreign and local-hires. This issue, as well as the question of

whether foreign-hires should be included in the appropriate bargaining unit,
eventually caused a deadlock between the parties.

On September 7, 1995, petitioner filed a notice of strike. The failure of the

National Conciliation and Mediation Board to bring the parties to a
compromise prompted the Department of Labor and Employment (DOLE)
to assume jurisdiction over the dispute. On June 10, 1996, the DOLE
Acting Secretary, Crescenciano B. Trajano, issued an Order resolving the
parity and representation issues in favor of the School. Then DOLE
Secretary Leonardo A. Quisumbing subsequently denied petitioner's
motion for reconsideration in an Order dated March 19, 1997. Petitioner
now seeks relief in this Court.

Petitioner claims that the point-of-hire classification employed by the

School is discriminatory to Filipinos and that the grant of higher salaries to
foreign-hires constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its faculty
members, numbering 38 in all, with nationalities other than Filipino, who
have been hired locally and classified as local hires. The Acting Secretary
[5]

of Labor found that these non-Filipino local-hires received the same

benefits as the Filipino local-hires:

The compensation package given to local-hires has been shown to apply

to all, regardless of race. Truth to tell, there are foreigners who have been
hired locally and who are paid equally as Filipino local hires.
[6]

The Acting Secretary upheld the point-of-hire classification for the

distinction in salary rates:

The principle "equal pay for equal work" does not find
application in the present case. The international character of
the School requires the hiring of foreign personnel to deal with
different nationalities and different cultures, among the student
population.

We also take cognizance of the existence of a system of

salaries and benefits accorded to foreign hired personnel
which system is universally recognized. We agree that certain
amenities have to be provided to these people in order to
entice them to render their services in the Philippines and in
the process remain competitive in the international market.

Furthermore, we took note of the fact that foreign hires have

limited contract of employment unlike the local hires who enjoy
security of tenure. To apply parity therefore, in wages and
other benefits would also require parity in other terms and
conditions of employment which include the employment
contract.

A perusal of the parties' 1992-1995 CBA points us to the

conditions and provisions for salary and professional
compensation wherein the parties agree as follows:

All members of the bargaining unit shall be

compensated only in accordance with Appendix C
hereof provided that the Superintendent of the
School has the discretion to recruit and hire
expatriate teachers from abroad, under terms and
conditions that are consistent with accepted
international practice.

Appendix C of said CBA further provides:

The new salary schedule is deemed at equity with

the Overseas Recruited Staff (OSRS) salary
schedule. The 25% differential is reflective of the
agreed value of system displacement and
 contracted status of the OSRS as differentiated
from the tenured status of Locally Recruited Staff
(LRS).

To our mind, these provisions demonstrate the parties'

recognition of the difference in the status of two types of
employees, hence, the difference in their salaries.

The Union cannot also invoke the equal protection clause to

justify its claim of parity. It is an established principle of
constitutional law that the guarantee of equal protection of the
laws is not violated by legislation or private covenants based
on reasonable classification. A classification is reasonable if it
is based on substantial distinctions and apply to all members of
the same class. Verily, there is a substantial distinction
between foreign hires and local hires, the former enjoying only
a limited tenure, having no amenities of their own in the
Philippines and have to be given a good compensation
package in order to attract them to join the teaching faculty of
the School. [7]

We cannot agree.

That public policy abhors inequality and discrimination is beyond

contention. Our Constitution and laws reflect the policy against these evils.
The Constitution in the Article on Social Justice and Human Rights
[8]

exhorts Congress to "give highest priority to the enactment of measures

that protect and enhance the right of all people to human dignity, reduce
social, economic, and political inequalities." The very broad Article 19 of
the Civil Code requires every person, "in the exercise of his rights and in
the performance of his duties, [to] act with justice, give everyone his due,
and observe honesty and good faith."

International law, which springs from general principles of law, likewise [9]

proscribes discrimination. General principles of law include principles of

equity, i.e., the general principles of fairness and justice, based on the
[10]

test of what is reasonable. The Universal Declaration of Human

[11]

Rights, the International Covenant on Economic, Social, and Cultural

[12]

Rights, the International Convention on the Elimination of All Forms of

[13]

Racial Discrimination, the Convention against Discrimination in

[14]

Education, the Convention (No. 111) Concerning Discrimination in

[15]

Respect of Employment and Occupation - all embody the general

[16]

principle against discrimination, the very antithesis of fairness and justice.

The Philippines, through its Constitution, has incorporated this principle as
part of its national laws.

In the workplace, where the relations between capital and labor are often
skewed in favor of capital, inequality and discrimination by the employer
are all the more reprehensible.
The Constitution specifically provides that labor is entitled to "humane
[17]

conditions of work." These conditions are not restricted to the physical

workplace - the factory, the office or the field - but include as well the
manner by which employers treat their employees.

The Constitution also directs the State to promote "equality of

[18]

employment opportunities for all." Similarly, the Labor Code provides that
[19]

the State shall "ensure equal work opportunities regardless of sex, race or
creed." It would be an affront to both the spirit and letter of these provisions
if the State, in spite of its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and discriminatory
terms and conditions of employment. [20]

Discrimination, particularly in terms of wages, is frowned upon by the Labor

Code. Article 135, for example, prohibits and penalizes the payment of
[21]

lesser compensation to a female employee as against a male employee for

work of equal value. Article 248 declares it an unfair labor practice for an
employer to discriminate in regard to wages in order to encourage or
discourage membership in any labor organization.

Notably, the International Covenant on Economic, Social, and Cultural

Rights, supra, in Article 7 thereof, provides:

The States Parties to the present Covenant recognize the right

of everyone to the enjoyment of just and favourable conditions
of work, which ensure, in particular:

a.....Remuneration which provides all workers, as a minimum,

with:

i.....Fair wages and equal remuneration for work of

equal value without distinction of any kind, in
particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with
equal pay for equal work;

x x x.

The foregoing provisions impregnably institutionalize in this jurisdiction the

long honored legal truism of "equal pay for equal work." Persons who work
with substantially equal qualifications, skill, effort and responsibility, under
similar conditions, should be paid similar salaries. This rule applies to the
[22]

School, its "international character" notwithstanding.

The School contends that petitioner has not adduced evidence that local-
hires perform work equal to that of foreign-hires. The Court finds this
[23]

argument a little cavalier. If an employer accords employees the same

position and rank, the presumption is that these employees perform equal
work. This presumption is borne by logic and human experience. If the
employer pays one employee less than the rest, it is not for that employee
to explain why he receives less or why the others receive more. That would
be adding insult to injury. The employer has discriminated against that
employee; it is for the employer to explain why the employee is treated
unfairly.

The employer in this case has failed to discharge this burden. There is no
evidence here that foreign-hires perform 25% more efficiently or effectively
than the local-hires. Both groups have similar functions and
responsibilities, which they perform under similar working conditions.

The School cannot invoke the need to entice foreign-hires to leave their
domicile to rationalize the distinction in salary rates without violating the
principle of equal work for equal pay.

"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or

recompense for services performed." Similarly, the Philippine Legal
Encyclopedia states that "salary" is the "[c]onsideration paid at regular
intervals for the rendering of services." In Songco v. National Labor
Relations Commission, we said that:
[24]

"salary" means a recompense or consideration made to a

person for his pains or industry in another man's business.
Whether it be derived from "salarium," or more fancifully from
"sal," the pay of the Roman soldier, it carries with it the
fundamental idea of compensation for services
rendered. (Emphasis supplied.)

While we recognize the need of the School to attract foreign-hires, salaries

should not be used as an enticement to the prejudice of local-hires. The
local-hires perform the same services as foreign-hires and they ought to be
paid the same salaries as the latter. For the same reason, the "dislocation
factor" and the foreign-hires' limited tenure also cannot serve as valid
bases for the distinction in salary rates. The dislocation factor and limited
tenure affecting foreign-hires are adequately compensated by certain
benefits accorded them which are not enjoyed by local-hires, such as
housing, transportation, shipping costs, taxes and home leave travel
allowances.

The Constitution enjoins the State to "protect the rights of workers and
promote their welfare," "to afford labor full protection." The State,
[25] [26]

therefore, has the right and duty to regulate the relations between labor
and capital. These relations are not merely contractual but are so
[27]

impressed with public interest that labor contracts, collective bargaining

agreements included, must yield to the common good. Should such
[28]

contracts contain stipulations that are contrary to public policy, courts will
not hesitate to strike down these stipulations.

In this case, we find the point-of-hire classification employed by respondent

School to justify the distinction in the salary rates of foreign-hires and local
hires to be an invalid classification. There is no reasonable distinction
between the services rendered by foreign-hires and local-hires. The
practice of the School of according higher salaries to foreign-hires
contravenes public policy and, certainly, does not deserve the sympathy of
this Court.

We agree, however, that foreign-hires do not belong to the same

bargaining unit as the local-hires.

A bargaining unit is "a group of employees of a given employer, comprised

of all or less than all of the entire body of employees, consistent with equity
to the employer indicate to be the best suited to serve the reciprocal rights
and duties of the parties under the collective bargaining provisions of the
law." The factors in determining the appropriate collective bargaining unit
[29]

are (1) the will of the employees (Globe Doctrine); (2) affinity and unity of
the employees' interest, such as substantial similarity of work and duties, or
similarity of compensation and working conditions (Substantial Mutual
Interests Rule); (3) prior collective bargaining history; and (4) similarity of
employment status. The basic test of an asserted bargaining unit's
[30]

acceptability is whether or not it is fundamentally the combination which will

best assure to all employees the exercise of their collective bargaining
rights. [31]

It does not appear that foreign-hires have indicated their intention to be

grouped together with local-hires for purposes of collective bargaining. The
collective bargaining history in the School also shows that these groups
were always treated separately. Foreign-hires have limited tenure; local-
hires enjoy security of tenure. Although foreign-hires perform similar
functions under the same working conditions as the local-hires, foreign-
hires are accorded certain benefits not granted to local-hires. These
benefits, such as housing, transportation, shipping costs, taxes, and home
leave travel allowance, are reasonably related to their status as foreign-
hires, and justify the exclusion of the former from the latter. To include
foreign-hires in a bargaining unit with local-hires would not assure either
group the exercise of their respective collective bargaining rights.

WHEREFORE, the petition is GIVEN DUE COURSE. The petition is

hereby GRANTED IN PART. The Orders of the Secretary of Labor and
Employment dated June 10, 1996 and March 19, 1997, are hereby
REVERSED and SET ASIDE insofar as they uphold the practice of
respondent School of according foreign-hires higher salaries than local-
hires.

SO ORDERED.

Puno, and Pardo, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.

Ynares-Santiago, J., on leave.

EN BANC
BAYAN MUNA, as represented by G.R. No. 159618
Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, and Rep. Present:
LIZA L. MAZA,
Petitioner, CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
ALBERTO ROMULO, in his MENDOZA, and
capacity as Executive Secretary, SERENO, JJ.
and BLAS F. OPLE, in his capacity
as Secretary of Foreign Affairs, Promulgated:
Respondents.
February 1, 2011
x-----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:

The Case

This petition[1] for certiorari, mandamus and prohibition under Rule 65

assails and seeks to nullify the Non-Surrender Agreement concluded by and
between the Republic of the Philippines (RP) and the United States of America
(USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to

represent the marginalized sectors of society. Respondent Blas F. Ople, now
deceased, was the Secretary of Foreign Affairs during the period material to this
case. Respondent Alberto Romulo was impleaded in his capacity as then
Executive Secretary.[2]

Rome Statute of the International Criminal Court

 Having a key determinative bearing on this case is the Rome
Statute[3] establishing the International Criminal Court (ICC) with the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to the national
criminal jurisdictions.[4] The serious crimes adverted to cover those considered
grave under international law, such as genocide, crimes against humanity, war
crimes, and crimes of aggression.[5]

On December 28, 2000, the RP, through Charge dAffaires Enrique A.

Manalo, signed the Rome Statute which, by its terms, is subject to ratification,
acceptance or approval by the signatory states.[6] As of the filing of the instant
petition, only 92 out of the 139 signatory countries appear to have completed
the ratification, approval and concurrence process. The Philippines is not
among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US

Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing
the terms of the non-surrender bilateral agreement (Agreement, hereinafter)
between the USA and the RP.

Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N
BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US Embassy
Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and defines
as persons of the RP and US from frivolous and harassment suits that might be
brought against them in international tribunals.[8] It is reflective of the
increasing pace of the strategic security and defense partnership between the
two countries. As of May 2, 2003, similar bilateral agreements have been
effected by and between the US and 33 other countries.[9]

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, persons are current or

former Government officials, employees (including contractors), or
military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other

shall not, absent the express consent of the first Party,
 (a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other

entity or third country, or expelled to a third country, for
the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the
UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers

a person of the Philippines to a third country, the [US] will not agree
to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government
of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise

transfers a person of the [USA] to a third country, the [GRP] will not
agree to the surrender or transfer of that person by the third country
to any international tribunal, unless such tribunal has been established
by the UN Security Council, absent the express consent of the
Government of the [US].

5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the
effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on

the status of the non-surrender agreement, Ambassador Ricciardone replied in
his letter of October 28, 2003 that the exchange of diplomatic notes constituted
a legally binding agreement under international law; and that, under US law, the
said agreement did not require the advice and consent of the US Senate.[10]

In this proceeding, petitioner imputes grave abuse of discretion to

respondents in concluding and ratifying the Agreement and prays that it be
struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to maintain a suit

and counter that the Agreement, being in the nature of an executive agreement,
does not require Senate concurrence for its efficacy. And for reasons detailed in
their comment, respondents assert the constitutionality of the Agreement.
 The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA]

SECRETARY x x x GRAVELY ABUSED THEIR
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION FOR CONCLUDING THE RP-US NON
SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-
028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE
GOVERNMENT HAS ALREADY SIGNED THE ROME
STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents
gravely abused their discretion when they capriciously
abandoned, waived and relinquished our only legitimate recourse
through the Rome Statute of the [ICC] to prosecute and try
persons as defined in the x x x Agreement, x x x or literally any
conduit of American interests, who have committed crimes of
genocide, crimes against humanity, war crimes and the crime of
aggression, thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome

Statute of the [ICC] the [RP] President and the [DFA] Secretary
x x x are obliged by the principle of good faith to refrain from
doing all acts which would substantially impair the value of the
undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats

the object and purpose of the Rome Statute of the International
Criminal Court and contravenes the obligation of good faith
inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether the
x x x Agreement is void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and

unenforceable for grave abuse of discretion amounting to lack or
excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER

AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR
OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING

AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT
LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.[11]
 The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of
whether or not respondents gravely abused their discretion in concluding it;
and second, whether or not the Agreement, which has not been submitted to the
Senate for concurrence, contravenes and undermines the Rome Statute and
other treaties. But because respondents expectedly raised it, we shall first tackle
the issue of petitioners legal standing.
The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the

issue of the validity or invalidity of the Agreement carries with it constitutional
significance and is of paramount importance that justifies its standing. Cited in
this regard is what is usually referred to as the emergency powers cases, [12] in
which ordinary citizens and taxpayers were accorded the personality to question
the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given
question.[13]Specifically, it is a partys personal and substantial interest in a case
where he has sustained or will sustain direct injury as a result[14] of the act being
challenged, and calls for more than just a generalized grievance.[15] The term
interest refers to material interest, as distinguished from one that is merely
incidental.[16] The rationale for requiring a party who challenges the validity of a
law or international agreement to allege such a personal stake in the outcome of
the controversy is to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.[17]

Locus standi, however, is merely a matter of procedure and it has been

recognized that, in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act, but by
concerned citizens, taxpayers, or voters who actually sue in the public
interest.[18] Consequently, in a catena of cases,[19]this Court has invariably
adopted a liberal stance on locus standi.
 Going by the petition, petitioners representatives pursue the instant suit
primarily as concerned citizens raising issues of transcendental importance,
both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other

government action, a petitioner needs to meet certain specific requirements
before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na
mga Manananggol ng mga Manggagawang Pilipino, Inc.[20] expounded on this
requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and

legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or
act complained of. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.[21]

In the case at bar, petitioners representatives have complied with the

qualifying conditions or specific requirements exacted under the locus
standi rule. As citizens, their interest in the subject matter of the petition is
direct and personal. At the very least, their assertions questioning
the Agreement are made of a public right, i.e., to ascertain that
the Agreement did not go against established national policies, practices, and
obligations bearing on the States obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of

the issue at hand impels the Court to brush aside the procedural barrier posed by
the traditional requirement of locus standi, as we have done in a long line of
earlier cases, notably in the old but oft-cited emergency powers
cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of transcendental
importance, we wrote again in Bayan v. Zamora,[24] The Court may relax the
standing requirements and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.
 Moreover, bearing in mind what the Court said in Taada v. Angara, that
it will not shirk, digress from or abandon its sacred duty and authority to uphold
the Constitution in matters that involve grave abuse of discretion brought before
it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government,[25] we cannot but resolve head on the issues
raised before us. Indeed, where an action of any branch of government is
seriously alleged to have infringed the Constitution or is done with grave abuse
of discretion, it becomes not only the right but in fact the duty of the judiciary
to settle it. As in this petition, issues are precisely raised putting to the fore the
propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its

threshold posture being that E/N BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable. One of these is the
doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted principles
of international law and international jurisprudence as part of the law of the
land and adheres to the policy of peace, cooperation, and amity with all
nations.[26] An exchange of notes falls into the category of inter-governmental
agreements,[27] which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty Reference Guide)
defines the term as follows:

An exchange of notes is a record of a routine agreement, that

has many similarities with the private law contract. The agreement
consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other.
Under the usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the letters may
be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.[28]

In another perspective, the terms exchange of notes and executive

agreements have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action.[29] On the other hand, executive agreements concluded by the
President sometimes take the form of exchange of notes and at other times that
of more formal documents denominated agreements or protocols.[30] As former
US High Commissioner to the Philippines Francis B. Sayre observed in his
work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and
other governments ends and agreements whether denominated
executive agreements or exchange of notes or otherwise begin, may
sometimes be difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be
it viewed as the Non-Surrender Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be boundis a recognized mode of
concluding a legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a

treaty as an international agreement concluded between states in written form
and governed by international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular
designation.[32] International agreements may be in the form of (1) treaties that
require legislative concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties.[33]

Under international law, there is no difference between treaties and

executive agreements in terms of their binding effects on the contracting states
concerned,[34] as long as the negotiating functionaries have remained within
their powers.[35] Neither, on the domestic sphere, can one be held valid if it
violates the Constitution.[36] Authorities are, however, agreed that one is distinct
from another for accepted reasons apart from the concurrence-requirement
aspect.[37] As has been observed by US constitutional scholars, a treaty has
greater dignity than an executive agreement, because its constitutional efficacy
is beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people;[38] a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.[39]
 Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly concurred in
by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern
Sea Trading, in which the Court reproduced the following observations made
by US legal scholars: [I]nternational agreements involving political issues or
changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties [while] those embodying
adjustments of detail carrying out well established national policies and
traditions and those involving arrangements of a more or less temporary
nature take the form of executive agreements. [40]

Pressing its point, petitioner submits that the subject of

the Agreement does not fall under any of the subject-categories that are
enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations, most-favored
nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo

v. CFI of Zambales and Merchant,[41] holding that an executive agreement
through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered

by international agreements mentioned in Eastern Sea Trading is not cast in
stone. There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of agreement is
the parties intent and desire to craft an international agreement in the form they
so wish to further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the enforcement
of a treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda[42] principle.

As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign
affairs has become more complex and the domain of international law wider, as
to include such subjects as human rights, the environment, and the sea. In fact,
in the US alone, the executive agreements executed by its President from 1980
to 2000 covered subjects such as defense, trade, scientific cooperation, aviation,
atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others.[43] Surely, the enumeration in Eastern Sea
Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best
interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into
under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of
vessels, navigation dues, income tax on shipping profits, the
admission of civil air craft, custom matters and commercial relations
generally, international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-

authorized[44]or a treaty-implementing executive agreement,[45] which
necessarily would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact thatsave for
the situation and matters contemplated in Sec. 25, Art. XVIII of the
Constitution[46]when a treaty is required, the Constitution does not classify any
subject, like that involving political issues, to be in the form of, and ratified as,
a treaty. What the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete the ratification
process.

Petitioners reliance on Adolfo[47] is misplaced, said case being

inapplicable owing to different factual milieus. There, the Court held that an
executive agreement cannot be used to amend a duly ratified and existing
treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not
require the concurrence of the Senate for its ratification may not be used to
amend a treaty that, under the Constitution, is the product of the ratifying acts
of the Executive and the Senate. The presence of a treaty, purportedly being
subject to amendment by an executive agreement, does not obtain under the
premises.
 Considering the above discussion, the Court need not belabor at length
the third main issue raised, referring to the validity and effectivity of
the Agreement without the concurrence by at least two-thirds of all the members
of the Senate. The Court has, in Eastern Sea Trading,[48] as reiterated
in Bayan,[49] given recognition to the obligatory effect of executive agreements
without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding

agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of
our history, we have entered executive agreements covering such
subjects as commercial and consular relations, most favored-nation
rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the

establishment of the ICC and is null and void insofar as it unduly restricts the
ICCs jurisdiction and infringes upon the effectivity of the Rome
Statute. Petitioner posits that the Agreement was constituted solely for the
purpose of providing individuals or groups of individuals with immunity from
the jurisdiction of the ICC; and such grant of immunity through non-surrender
agreements allegedly does not legitimately fall within the scope of Art. 98 of
the Rome Statute. It concludes that state parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute
is to ensure that those responsible for the worst possible crimes are brought to
justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any
agreementlike the non-surrender agreementthat precludes the ICC from
exercising its complementary function of acting when a state is unable to or
unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as
representatives of a signatory of the Rome Statute, are obliged by the
imperatives of good faith to refrain from performing acts that substantially
devalue the purpose and object of the Statute, as signed.Adding a nullifying
ingredient to the Agreement, according to petitioner, is the fact that it has an
immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioners pretense, the Agreement does not contravene or

undermine, nor does it differ from, the Rome Statute. Far from going against
each other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions [of the signatory states]. [54]Art.
1 of the Rome Statute pertinently provides:

Article 1

The Court

An International Crimininal Court (the Court) is hereby

established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary
to national criminal jurisdictions. The jurisdiction and functioning
of the Court shall be governed by the provisions of this
Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute

declares that it is the duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes. This provision indicates that
primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with the
ICC in appropriate situations contemplated under Art. 17, par. 1 [55] of
the Rome Statute.

Of particular note is the application of the principle of ne bis in

idem[56] under par. 3 of Art. 20, Rome Statute, which again underscores the
primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as
relevant, the provision states that no person who has been tried by another court
for conduct x x x [constituting crimes within its jurisdiction] shall be tried by
the [International Criminal] Court with respect to the same conduct x x x.
 The foregoing provisions of the Rome Statute, taken collectively, argue
against the idea of jurisdictional conflict between the Philippines, as party to the
non-surrender agreement, and the ICC; or the idea of
the Agreement substantially impairing the value of the RPs undertaking under
the Rome Statute. Ignoring for a while the fact that the RP signed the Rome
Statute ahead of the Agreement, it is abundantly clear to us that the Rome
Statute expressly recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the complementary
jurisdiction of the ICC coming into play only when the signatory states are
unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by

entering into the Agreement, violated its duty required by the imperatives of
good faith and breached its commitment under the Vienna Convention[57] to
refrain from performing any act tending to impair the value of a treaty, e.g., the
Rome Statutehas to be rejected outright. For nothing in the provisions of
the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of
the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the
Rome Statute contains a proviso that enjoins the ICC from seeking the
surrender of an erring person, should the process require the requested state to
perform an act that would violate some international agreement it has entered
into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98

Cooperation with respect to waiver of immunity

and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender

which would require the requested State to act inconsistently with
its obligations under international agreements pursuant to which
the consent of a sending State is required to surrender a person of
that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the
surrender.

Moreover, under international law, there is a considerable difference

between a State-Party and a signatory to a treaty. Under the Vienna Convention
on the Law of Treaties, a signatory state is only obliged to refrain from acts
which would defeat the object and purpose of a treaty;[58] whereas a State-Party,
on the other hand, is legally obliged to follow all the provisions of a treaty in
good faith.

In the instant case, it bears stressing that the Philippines is only a

signatory to the Rome Statute and not a State-Party for lack of ratification by
the Senate. Thus, it is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. Any argument obliging
the Philippines to follow any provision in the treaty would be premature.

As a result, petitioners argument that State-Parties with non-surrender

agreements are prevented from meeting their obligations under the Rome
Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that

the Agreement is not incompatible with the Rome Statute. Specifically, Art.
90(4) provides that [i]f the requesting State is a State not Party to this Statute
the requested State, if it is not under an international obligation to extradite the
person to the requesting State, shall give priority to the request for surrender
from the Court. x x x In applying the provision, certain undisputed facts should
be pointed out: first, the US is neither a State-Party nor a signatory to the Rome
Statute; and second, there is an international agreement between the US and
the Philippines regarding extradition or surrender of persons, i.e.,
the Agreement. Clearly, even assuming that the Philippines is a State-Party, the
Rome Statute still recognizes the primacy of international agreements entered
into between States, even when one of the States is not a State-Party to the
Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated
its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US
nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines. Formulating
petitioners argument a bit differently, the RP, by entering into the Agreement,
does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for
erring Americans committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of

affirmance and confirmance of the Philippines national criminal
jurisdiction. National criminal jurisdiction being primary, as explained above, it
is always the responsibility and within the prerogative of the RP either to
prosecute criminal offenses equally covered by the Rome Statute or to accede to
the jurisdiction of the ICC. Thus, the Philippines may decide to try persons of
the US, as the term is understood in the Agreement, under our national criminal
justice system.Or it may opt not to exercise its criminal jurisdiction over its
erring citizens or over USpersons committing high crimes in the country and
defer to the secondary criminal jurisdiction of the ICC over them. As to persons
of the US whom the Philippines refuses to prosecute, the country would, in
effect, accord discretion to the US to exercise either its national criminal
jurisdiction over the person concerned or to give its consent to the referral of
the matter to the ICC for trial. In the same breath, the US must extend the same
privilege to the Philippines with respect to persons of the RP committing high
crimes within USterritorial jurisdiction.

In the context of the Constitution, there can be no serious objection to

the Philippinesagreeing to undertake the things set forth in the Agreement.
Surely, one State can agree to waive jurisdictionto the extent agreed uponto
subjects of another State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote in Nicolas v. Romulo[59]a case
involving the implementation of the criminal jurisdiction provisions of the RP-
US Visiting Forces Agreementis apropos:

Nothing in the Constitution prohibits such agreements

recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects
of such immunity like Heads of State, diplomats and members of the
armed forces contingents of a foreign State allowed to enter another
States territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be

predicated on the postulate that some of its provisions constitute a virtual
abdication of its sovereignty.Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive Philippinesisolated from
the rest of the world. It even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.[60]

By their nature, treaties and international agreements actually have a

limiting effect on the otherwise encompassing and absolute nature of
sovereignty. By their voluntary act, nations may decide to surrender or waive
some aspects of their state power or agree to limit the exercise of their
otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from
a pact or a reciprocal undertaking of one contracting party to grant the same
privileges or immunities to the other. On the rationale that the Philippines has
adopted the generally accepted principles of international law as part of the law
of the land, a portion of sovereignty may be waived without violating the
Constitution.[61] Such waiver does not amount to an unconstitutional diminution
or deprivation of jurisdiction of Philippine courts.[62]

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for
imposing immoral obligations and/or being at variance with allegedly
universally recognized principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner would put it, leaves
criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x.[63]

The above argument is a kind of recycling of petitioners earlier position,

which, as already discussed, contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty and in the process
undermined its treaty obligations under the Rome Statute, contrary to
international law principles.[64]

The Court is not persuaded. Suffice it to state in this regard that the non-
surrender agreement, as aptly described by the Solicitor General, is an assertion
by the Philippines of its desire to try and punish crimes under its national law. x
x x The agreement is a recognition of the primacy and competence of the
countrys judiciary to try offenses under its national criminal laws and dispense
justice fairly and judiciously.

Petitioner, we believe, labors under the erroneous impression that

the Agreementwould allow Filipinos and Americans committing high crimes of
international concern to escape criminal trial and punishment. This is manifestly
incorrect. Persons who may have committed acts penalized under the Rome
Statute can be prosecuted and punished in the Philippines or in the US; or with
the consent of the RP or the US, before the ICC, assuming, for the nonce, that
all the formalities necessary to bind both countries to the Rome Statute have
been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC,
without the consent of the other party, which may desire to prosecute the crime
under its existing laws. With the view we take of things, there is nothing
immoral or violative of international law concepts in the act of
the Philippines of assuming criminal jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.
No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the Senates

concurrence in the Agreement. And without specifically saying so,
petitioner would argue that the non-surrender agreement was executed by the
President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above
posture of petitioner, the same having been discussed at length earlier on. As to
the second portion, We wish to state that petitioner virtually faults the President
for performing, through respondents, a task conferred the President by the
Constitutionthe power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President,
as head of state and government, is the sole organ and authority in the external
affairs of the country.[65] The Constitution vests in the President the power to
enter into international agreements, subject, in appropriate cases, to the required
concurrence votes of the Senate. But as earlier indicated, executive agreements
may be validly entered into without such concurrence. As the President wields
vast powers and influence, her conduct in the external affairs of the nation is,
as Bayan would put it, executive altogether. The right of the President to enter
into or ratify binding executive agreements has been confirmed by long
practice.[66]

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then

President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and discretion vested in her by
the Constitution. At the end of the day, the Presidentby ratifying, thru her
deputies, the non-surrender agreementdid nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of

the other issues raised herein, it may perhaps be pertinent to remind all and
sundry that about the time this petition was interposed, such issue of ratification
was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.[67] As the
Court emphasized in said case, the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the concurrence of the Senate,
whose role relative to the ratification of a treaty is limited merely to concurring
in or withholding the ratification. And concomitant with this treaty-making
power of the President is his or her prerogative to refuse to submit a treaty to
the Senate; or having secured the latters consent to the ratification of the treaty,
refuse to ratify it.[68] This prerogative, the Court hastened to add, is the
Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just
a signatory to the Rome Statute. Under Art. 125[69] thereof, the final acts
required to complete the treaty process and, thus, bring it into force, insofar as
the Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic
Act No. (RA) 9851, otherwise known as the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof,
provides:

Section 17. Jurisdiction. x x x x

In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or prosecution of a crime
punishable under this Act if another court or international tribunal is already
 conducting the investigation or undertaking the prosecution of such
crime. Instead, the authorities may surrender or extradite suspected or
accused persons in the Philippines to the appropriate international court,
if any, or to another State pursuant to the applicable extradition laws and
treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws

on the States obligation in relation to grave crimes against the law of
nations, i.e., genocide, crimes against humanity and war crimes. Relying on the
above-quoted statutory proviso, the view posits that the Philippine is required to
surrender to the proper international tribunal those persons accused of the grave
crimes defined under RA 9851, if it does not exercise its primary jurisdiction to
prosecute them.
The basic premise rests on the interpretation that if it does not decide to
prosecute a foreign national for violations of RA 9851, the Philippines has only
two options, to wit: (1) surrender the accused to the proper international
tribunal; or (2) surrender the accused to another State if such surrender is
pursuant to the applicable extradition laws and treaties. But the Philippines may
exercise these options only in cases where another court or international
tribunal is already conducting the investigation or undertaking the prosecution
of such crime; otherwise, the Philippines must prosecute the crime before its
own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an

international tribunal for any crime under RA 9851, the Philippines has the
option to surrender such US national to the international tribunal if it decides
not to prosecute such US national here. The view asserts that this option of
the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
the US, and any derogation of Sec. 17 of RA 9851, such as requiring the
consent of the US before the Philippines can exercise such option, requires an
amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippineswithout the consent of the USfrom
surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA
9851. Consequently, the view is strongly impressed that the Agreement cannot
be embodied in a simple executive agreement in the form of an exchange of
notes but must be implemented through an extradition law or a treaty with the
corresponding formalities.
 Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where the Philippines adopts, as a national policy, the generally
accepted principles of international law as part of the law of the land, the
Court is further impressed to perceive the Rome Statute as declaratory of
customary international law. In other words, the Statute embodies principles of
law which constitute customary international law or custom and for which
reason it assumes the status of an enforceable domestic law in the context of the
aforecited constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be undertaken via a mere
executive agreement, which, as an exclusive act of the executive branch, can
only implement, but cannot amend or repeal, an existing law. The Agreement,
so the argument goes, seeks to frustrate the objects of the principles of law or
alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced

considers the Agreement inefficacious, unless it is embodied in a treaty duly
ratified with the concurrence of the Senate, the theory being that a Senate-
ratified treaty partakes of the nature of a municipal law that can amend or
supersede another law, in this instance Sec. 17 of RA 9851 and the status of the
Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II
of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find
that the Agreement does not amend or is repugnant to RA 9851. For another, the
view does not clearly state what precise principles of law, if any,
the Agreement alters. And for a third, it does not demonstrate in the concrete
how the Agreement seeks to frustrate the objectives of the principles of law
subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the
Rome Statute as the former merely reinforces the primacy of the national
jurisdiction of the US and the Philippines in prosecuting criminal offenses
committed by their respective citizens and military personnel, among
others. The jurisdiction of the ICC pursuant to the Rome Statute over high
crimes indicated thereat is clearly and unmistakably complementary to the
national criminal jurisdiction of the signatory states.
 Moreover, RA 9851 clearly: (1) defines and establishes the crimes
against international humanitarian law, genocide and other crimes against
humanity;[70] (2) provides penal sanctions and criminal liability for their
commission;[71] and (3) establishes special courts for the prosecution of these
crimes and for the State to exercise primary criminal jurisdiction.[72] Nowhere in
RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA
9851 as requiring the Philippine State to surrender to the proper international
tribunal those persons accused of crimes sanctioned under said law if it does not
exercise its primary jurisdiction to prosecute such persons. This view is not
entirely correct, for the above quoted proviso clearly provides discretion to the
Philippine State on whether to surrender or not a person accused of the crimes
under RA 9851. The statutory proviso uses the word may. It is settled doctrine
in statutory construction that the word may denotes discretion, and cannot be
construed as having mandatory effect.[73] Thus, the pertinent second pararagraph
of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily

required when the Philippines does not exercise its primary jurisdiction in cases
where another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime, still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly
provides that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can already be
considered a treaty following this Courts decision in Nicolas v.
Romulo[74] which cited Weinberger v. Rossi.[75] In Nicolas, We held that an
executive agreement is a treaty within the meaning of that word in international
law and constitutes enforceable domestic law vis--vis the United States.[76]

Likewise, the Philippines and the US already have an existing extradition

treaty, i.e., RP-US Extradition Treaty, which was executed on November 13,
1994. The pertinent Philippine law, on the other hand, is Presidential Decree
No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction
with the RP-US Extradition Treaty, would neither violate nor run counter to
Sec. 17 of RA 9851.

The views reliance on Suplico v. Neda[77] is similarly improper. In that

case, several petitions were filed questioning the power of the President to enter
into foreign loan agreements. However, before the petitions could be resolved
by the Court, the Office of the Solicitor General filed a Manifestation and
Motion averring that the Philippine Government decided not to continue with
the ZTE National Broadband Network Project, thus rendering the petition moot.
In resolving the case, the Court took judicial notice of the act of the executive
department of the Philippines (the President) and found the petition to be indeed
moot. Accordingly, it dismissed the petitions.
 In his dissent in the abovementioned case, Justice Carpio discussed the
legal implications of an executive agreement. He stated that an executive
agreement has the force and effect of law x x x [it] cannot amend or
repeal prior laws.[78] Hence, this argument finds no application in this case
seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.

The view further contends that the RP-US Extradition Treaty is

inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US
Extradition Treaty, [a]n offense shall be an extraditable offense if it
is punishable under the laws in both Contracting Parties x x x,[79] and
thereby concluding that while the Philippines has criminalized under RA 9851
the acts defined in the Rome Statute as war crimes, genocide and other crimes
against humanity, there is no similar legislation in the US. It is further argued
that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal
courts for an international crime unless Congress adopts a law defining and
punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the

high crimes mentioned earlier. In fact, as early as October 2006, the US enacted
a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of
the United States Code Annotated (USCA) provides for the criminal offense of
war crimes which is similar to the war crimes found in both the Rome Statute
and RA 9851, thus:

(a) Offense Whoever, whether inside or outside the United States, commits a
war crime, in any of the circumstances described in subsection (b), shall
be fined under this title or imprisoned for life or any term of years, or
both, and if death results to the victim, shall also be subject to the penalty
of death.
(b) Circumstances The circumstances referred to in subsection (a) are that the
person committing such war crime or the victim of such war crime is a
member of the Armed Forces of the United States or a national of the
United States (as defined in Section 101 of the Immigration and
Nationality Act).
(c) Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions
signed at Geneva12 August 1949, or any protocol to such convention
to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War on
Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in
subsection [d]) when committed in the context of and in association
with an armed conflict not of an international character; or
 (4) Of a person who, in relation to an armed conflict and contrary to the
provisions of the Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on 3 May 1996), when the United
States is a party to such Protocol, willfully kills or causes serious
injury to civilians.[80]

Similarly, in December 2009, the US adopted a law that criminalized

genocide, to wit:
1091. Genocide

(a) Basic Offense Whoever, whether in the time of peace or in

time of war and with specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of
members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to
cause the physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group;
or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).[81]

Arguing further, another view has been advanced that the current US
laws do not cover every crime listed within the jurisdiction of the ICC and that
there is a gap between the definitions of the different crimes under the US laws
versus the Rome Statute. The view used a report written by Victoria K. Holt
and Elisabeth W. Dallas, entitled On Trial: The US Military and the
International Criminal Court, as its basis.

At the outset, it should be pointed out that the report used may not have any
weight or value under international law. Article 38 of the Statute of the
International Court of Justice (ICJ) lists the sources of international law, as
follows: (1) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (2)
international custom, as evidence of a general practice accepted as law; (3) the
general principles of law recognized by civilized nations; and (4) subject to the
provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law. The report does not fall under any of the
foregoing enumerated sources. It cannot even be considered as the teachings of
highly qualified publicists. A highly qualified publicist is a scholar of public
international law and the term usually refers to legal scholars or academic
writers.[82] It has not been shown that the authors[83] of this report are highly
qualified publicists.
 Assuming arguendo that the report has weight, still, the perceived gaps in
the definitions of the crimes are nonexistent. To highlight, the table below
shows the definitions of genocide and war crimes under the Rome Statute vis--
vis the definitions under US laws:
Rome Statute
Article 6
Genocide
For the purpose of this Statute, genocide means
any of the following acts committed with intent
to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the group
to another group.
Article 8
War Crimes
2. For the purpose of this Statute, war crimes
means:
(a) Grave breaches of the Geneva Conventions
of 12 August 1949, namely, any of the
following acts against persons or property
protected under the provisions of the relevant
Geneva Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
international law, namely, any of the following
acts:
xxxx
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely, any
of the following acts committed against
persons taking no active part in the hostilities,
including members of armed forces who have
laid down their arms and those placed hors de
combat by sickness, wounds, detention or any
other cause:
xxxx
(d) Paragraph 2 (c) applies to armed conflicts
not of an international character and thus does
not apply to situations of internal disturbances
and tensions, such as riots, isolated and
US Law
1091. Genocide
(a) Basic Offense Whoever, whether in the
time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of
that group;
(3) causes the permanent impairment of the
mental faculties of members of the
group through drugs, torture, or similar
techniques;
(4) subjects the group to conditions of life that
are intended to cause the physical
destruction of the group in whole or in
part;
(5) imposes measures intended to prevent
births within the group; or
(6) transfers by force children of the group to
another group;
shall be punished as provided in subsection (b).
(a) Definition As used in this Section the term
war crime means any conduct
(1) Defined as a grave breach in any of the
international conventions signed
at Geneva12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of
the Annex to the Hague Convention IV,
Respecting the Laws and Customs of
War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d][85]) when committed in
the context of and in association with an
armed conflict not of an international
character; or
(4) Of a person who, in relation to an armed
conflict and contrary to the provisions of
the Protocol on Prohibitions or
Restrictions on the Use of Mines,
Booby-Traps and Other Devices as
amended at Geneva on 3 May 1996
(Protocol II as amended on 3 May
1996), when the United States is a party
to such Protocol, willfully kills or causes
serious injury to civilians.[86]
sporadic acts of violence or other acts of a
similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of an
international character, within the established
framework of international law, namely, any of
the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present.
In fact, the report itself stated as much, to wit:
Few believed there were wide differences between the crimes under
the jurisdiction of the Court and crimes within the Uniform Code of Military
Justice that would expose US personnel to the Court. Since US military
lawyers were instrumental in drafting the elements of crimes outlined in the
Rome Statute, they ensured that most of the crimes were consistent with those
outlined in the UCMJ and gave strength to complementarity for the US. Small
areas of potential gaps between the UCMJ and the Rome Statute, military
experts argued, could be addressed through existing military laws.[87] x x x

The report went on further to say that [a]ccording to those involved, the
elements of crimes laid out in the Rome Statute have been part of US military
doctrine for decades.[88]Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation,

the US notably follows the doctrine of incorporation. As early as 1900, the
esteemed Justice Gray in The Paquete Habana[89] case already held
international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and

administered by the courts of justice of appropriate jurisdiction as often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subjects
of which they treat. Such works are resorted to by judicial tribunals, not for
the speculations of their authors concerning what the law ought to be, but for
the trustworthy evidence of what the law really is.[90] (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite

the lack of domestic legislation. The cited ruling in U.S. v. Coolidge,[91] which
in turn is based on the holding in U.S. v. Hudson,[92] only applies to common
law and not to the law of nations or international law.[93] Indeed, the Court
in U.S. v. Hudson only considered the question, whether the Circuit Courts of
the United States can exercise a common law jurisdiction in criminal
cases.[94] Stated otherwise, there is no common law crime in the US but this is
considerably different from international law.
 The US doubtless recognizes international law as part of the law of the
land, necessarily including international crimes, even without any local
statute.[95] In fact, years later, US courts would apply international law as a
source of criminal liability despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin[96] the US Supreme Court noted that
[f]rom the very beginning of its history this Court has recognized and applied
the law of war as including that part of the law of nations which prescribes, for
the conduct of war, the status, rights and duties of enemy nations as well as of
enemy individuals.[97] It went on further to explain that Congress had not
undertaken the task of codifying the specific offenses covered in the law of war,
thus:

It is no objection that Congress in providing for the trial of such

offenses has not itself undertaken to codify that branch of international
law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress punishing
the crime of piracy as defined by the law of nations is an appropriate exercise
of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the
offense since it has adopted by reference the sufficiently precise definition of
international law. x x x Similarly by the reference in the 15th Article of War
to offenders or offenses that x x x by the law of war may be triable by such
military commissions. Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are defined as such by
the law of war x x x, and which may constitutionally be included within that
jurisdiction.[98] x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against
humanity. It has been held that genocide, war crimes and crimes against
humanity have attained the status of customary international law. Some even go
so far as to state that these crimes have attained the status of jus cogens.[99]

Customary international law or international custom is a source of

international law as stated in the Statute of the ICJ.[100] It is defined as the
general and consistent practice of states recognized and followed by them from
a sense of legal obligation.[101] In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective
element; and opinio juris sive necessitates, the subjective element.[102]

State practice refers to the continuous repetition of the same or similar

kind of acts or norms by States.[103] It is demonstrated upon the existence of the
following elements: (1) generality; (2) uniformity and consistency; and (3)
duration.[104] While, opinio juris, the psychological element, requires that the
state practice or norm be carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law
requiring it.[105]

The term jus cogens means the compelling law.[106] Corollary, a jus
cogens norm holds the highest hierarchical position among all other customary
norms and principles.[107] As a result, jus cogens norms are deemed peremptory
and non-derogable.[108] When applied to international crimes, jus cogens crimes
have been deemed so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by agreement.[109]

These jus cogens crimes relate to the principle of universal jurisdiction,

i.e., any state may exercise jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even when no other recognized basis
for jurisdiction exists.[110] The rationale behind this principle is that the crime
committed is so egregious that it is considered to be committed against all
members of the international community[111] and thus granting every State
jurisdiction over the crime.[112]

Therefore, even with the current lack of domestic legislation on the part of
the US, it still has both the doctrine of incorporation and universal jurisdiction
to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an

international tribunal, found in the Rome Statute is not declaratory of
customary international law.

The first element of customary international law, i.e., established,

widespread, and consistent practice on the part of States,[113] does not, under the
premises, appear to be obtaining as reflected in this simple reality: As of
October 12, 2010, only 114[114] States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier, or on July 1,
2002. The fact that 114 States out of a total of 194[115] countries in the world, or
roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not
the perceived principles contained in the Statute have attained the status of
customary law and should be deemed as obligatory international law. The
numbers even tend to argue against the urgency of establishing international
criminal courts envisioned in the Rome Statute. Lest it be overlooked,
the Philippines, judging by the action or inaction of its top officials, does not
even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8)
years have elapsed since the Philippine representative signed the Statute, but the
treaty has not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the
application of the concurring elements, thus:

Custom or customary international law means a general and consistent

practice of states followed by them from a sense of legal obligation [opinio
juris] x x x. This statement contains the two basic elements of custom: the
material factor, that is how the states behave, and the psychological factor or
subjective factor, that is, why they behave the way they do.

xxxx
 The initial factor for determining the existence of custom is the actual
behavior of states.This includes several elements: duration, consistency, and
generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important

is the consistency and the generality of the practice. x x x
xxxx

Once the existence of state practice has been established, it

becomes necessary to determine why states behave the way they do. Do
states behave the way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy?Opinio juris, or the belief
that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone

prevalent practice, among the different countries in the world that the
prosecution of internationally recognized crimes of genocide, etc. should be
handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or

the psychological element must be deemed non-existent, for an inquiry on why
states behave the way they do presupposes, in the first place, that they are
actually behaving, as a matter of settled and consistent practice, in a certain
manner. This implicitly requires belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.[117]Like the first
element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal

jurisdiction over the crimes enumerated therein as evidenced by it requiring
State consent.[118] Even further, the Rome Statute specifically and unequivocally
requires that: This Statute is subject to ratification, acceptance or approval by
signatory States.[119] These clearly negate the argument that such has already
attained customary status.

More importantly, an act of the executive branch with a foreign

government must be afforded great respect. The power to enter into executive
agreements has long been recognized to be lodged with the President. As We
held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, [t]he power to enter into an executive agreement is in essence an
executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.[120] The rationale behind this principle is
the inviolable doctrine of separation of powers among the legislative, executive
and judicial branches of the government. Thus, absent any clear contravention
of the law, courts should exercise utmost caution in declaring any executive
agreement invalid.

In light of the above consideration, the position or view that the

challenged RP-US Non-Surrender Agreement ought to be in the form of a
treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is

hereby DISMISSED for lack of merit. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice
EN BANC

ANG LADLAD LGBT PARTY G.R. No. 190582

represented herein by its Chair,
DANTON REMOTO,
Petitioner, Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
COMMISSION ON ELECTIONS, Promulgated:
Respondent. April 8, 2010
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right
to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that

others may make different choices choices we would not make for ourselves, choices
we may disapprove of, even choices that may shock or offend or anger us. However,
choices are not to be legally prohibited merely because they are different, and the right
to disagree and debate about important questions of public policy is a core value
protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition
of, and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral convictions are
concerned, harmony among those theoretically opposed is an insurmountable goal.
Yet herein lies the paradox philosophical justifications about what is moral are
indispensable and yet at the same time powerless to create agreement. This Court
recognizes, however, that practical solutions are preferable to ideological stalemates;
accommodation is better than intransigence; reason more worthy than rhetoric. This
will allow persons of diverse viewpoints to live together, if not harmoniously, then, at
least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang
Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 2009[2] (the First Assailed Resolution)
and December 16, 2009[3] (the Second Assailed Resolution) in SPP No. 09-228 (PL)
(collectively, the Assailed Resolutions). The case has its roots in the COMELECs
refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List System Act.[4]

Ang Ladlad is an organization composed of men and women who identify

themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladladfirst applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization
had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition[5] for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a

marginalized and under-represented sector that is particularly disadvantaged because
of their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-
point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections.[6] Ang Ladlad laid out its national membership base
consisting of individual members and organizational supporters, and outlined its
platform of governance.[7]

On November 11, 2009, after admitting the petitioners evidence, the

COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner
defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT)
Community, thus:

x x x a marginalized and under-represented sector that is

particularly disadvantaged because of their sexual
orientation and gender identity.
and proceeded to define sexual orientation as that which:

x x x refers to a persons capacity for profound emotional,

affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs. In Romans 1:26, 27,
Paul wrote:

For this cause God gave them up into vile affections, for
even their women did change the natural use into that which
 is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and
receiving in themselves that recompense of their error which
was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are

indeed a people transgressing beyond bounds. (7.81) And we rained
down on them a shower (of brimstone): Then see what was the end
of those who indulged in sin and crime! (7:84) He said: O my Lord!
Help Thou me against people who do mischief (29:30).

As correctly pointed out by the Law Department in its Comment

dated October 2, 2008:

The ANG LADLAD apparently advocates sexual

immorality as indicated in the Petitions par. 6F: Consensual
partnerships or relationships by gays and lesbians who are
already of age. It is further indicated in par. 24 of the Petition
which waves for the record: In 2007, Men Having Sex with
Men or MSMs in the Philippines were estimated as 670,000
(Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit,

license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code are
deemed part of the requirement to be complied with for
accreditation.

ANG LADLAD collides with Article 695 of the Civil Code

which defines nuisance as Any act, omission, establishment,
business, condition of property, or anything else which x x x
(3) shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The

contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient,
provided they are not contrary to law, morals, good customs,
public order or public policy. Art 1409 of the Civil Code
provides that Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or
public policy are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised

Penal Code, as amended, penalizes Immoral doctrines, obscene
publications and exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and

exhibitions, and indecent shows. The penalty of prision
 mayor or a fine ranging from six thousand to twelve
thousand pesos, or both such imprisonment and fine, shall be
imposed upon:

1. Those who shall publicly expound or proclaim doctrines

openly contrary to public morals;

2. (a) The authors of obscene literature, published with their

knowledge in any form; the editors publishing such
literature; and the owners/operators of the establishment
selling the same;

(b) Those who, in theaters, fairs, cinematographs or any

other place, exhibit indecent or immoral plays, scenes, acts
or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall
include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market
for violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of prohibited
drugs; and (5) are contrary to law, public order, morals, good
customs,established policies, lawful orders, decrees and
edicts.

3. Those who shall sell, give away or exhibit films, prints,

engravings, sculpture or literature which are offensive to
morals.

Petitioner should likewise be denied accreditation not only for advocating

immoral doctrines but likewise for not being truthful when it said that it or
any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections.

Furthermore, should this Commission grant the petition, we will be exposing our
youth to an environment that does not conform to the teachings of our
faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said
in one article that older practicing homosexuals are a threat to the
youth. As an agency of the government, ours too is the States avowed duty
under Section 13, Article II of the Constitution to protect our youth from
moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to

overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene
V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang
Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito
N. Tagle, and Elias R. Yusoph).The COMELEC Chairman, breaking the tie and
speaking for the majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list

system. Even assuming that it has properly proven its under-representation
and marginalization, it cannot be said that Ladlads expressed sexual
orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the
party-list system of electing congressional representatives is to enable
Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment
of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is
not a tool to advocate tolerance and acceptance of misunderstood persons
or groups of persons. Rather, the party-list system is a tool for the
realization of aspirations of marginalized individuals whose interests
are also the nations only that their interests have not been brought to the
attention of the nation because of their under representation. Until the
time comes when Ladlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its
application for accreditation under the party-list system will remain
just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine

jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a special class of individuals. x x x Significantly, it
has also been held that homosexuality is not a constitutionally protected
fundamental right, and that nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of
homosexual relations, as in the case of race or religion or belief.

xxxx

Thus, even if societys understanding, tolerance, and acceptance of LGBTs

is elevated, there can be no denying that Ladlad constituencies are still
males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.

xxxx
 IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or

Muslim religious practices. Neither is there any attempt to any particular
religious groups moral rules on Ladlad. Rather, what are being adopted as
moral parameters and precepts are generally accepted public morals. They
are possibly religious-based, but as a society, the Philippines cannot
ignore its more than 500 years of Muslim and Christian upbringing,
such that some moral precepts espoused by said religions have sipped
[sic] into society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of
the land. Article 201 of the Revised Penal Code imposes the penalty
of prision mayor upon Those who shall publicly expound or proclaim
doctrines openly contrary to public morals. It penalizes immoral doctrines,
obscene publications and exhibition and indecent shows. Ang
Ladlad apparently falls under these legal provisions. This is clear from its
Petitions paragraph 6F: Consensual partnerships or relationships by gays
and lesbians who are already of age It is further indicated in par. 24 of the
Petition which waves for the record: In 2007, Men Having Sex with
Men or MSMs in the Philippines were estimated as 670,000. Moreoever,
Article 694 of the Civil Code defines nuisance as any act, omission x x x
or anything else x x x which shocks, defies or disregards decency or
morality x x x. These are all unlawful.[10]

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court
annul the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of
a preliminary mandatory injunction against the COMELEC, which had previously
announced that it would begin printing the final ballots for the May 2010 elections
by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to

file its Comment on behalf of COMELEC not later than 12:00 noon of January 11,
2010.[11] Instead of filing a Comment, however, the OSG filed a Motion for
Extension, requesting that it be given until January 16, 2010 to
Comment.[12] Somewhat surprisingly, the OSG later filed a Comment in support of
petitioners application.[13] Thus, in order to give COMELEC the opportunity to fully
ventilate its position, we required it to file its own comment.[14] The COMELEC,
through its Law Department, filed its Comment on February 2, 2010.[15]
 In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing until
further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.[16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed
a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-
in-Intervention.[17] The CHR opined that the denial of Ang Ladlads petition on moral
grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and
Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to
intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to

Intervene[18] which motion was granted on February 2, 2010.[19]

The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees against the
establishment of religion.Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly, and
equal protection of laws, as well as constituted violations of
the Philippines international obligations against discrimination based on sexual
orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred
in denying petitioners application for registration since there was no basis for
COMELECs allegations of immorality. It also opined that LGBTs have their own
special interests and concerns which should have been recognized by the COMELEC
as a separate classification. However, insofar as the purported violations of petitioners
freedom of speech, expression, and assembly were concerned, the OSG maintained
that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that the
petition was validly dismissed on moral grounds. It also argued for the first time that
the LGBT sector is not among the sectors enumerated by the Constitution and RA
7941, and that petitioner made untruthful statements in its petition when it alleged its
national existence contrary to actual verification reports by COMELECs field
personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the

Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlads application for registration on the ground
that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for
the proposition that only those sectors specifically enumerated in the law or related to
said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals)
may be registered under the party-list system. As we explicitly ruled in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections,[20] the enumeration of
marginalized and under-represented sectors is not exclusive. The crucial element is
not whether a sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its
petition when it alleged that it had nationwide existence through its members and
affiliate organizations. The COMELEC claims that upon verification by its field
personnel, it was shown that save for a few isolated places in the country, petitioner
does not exist in almost all provinces in the country.[21]
This argument that petitioner made untruthful statements in its petition when it
alleged its national existence is a new one; previously, the COMELEC claimed that
petitioner was not being truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations
relating to the elections. Nowhere was this ground for denial of petitioners
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself,
is quite curious, considering that the reports of petitioners alleged non-existence were
already available to the COMELEC prior to the issuance of the First Assailed
Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a
change in respondents theory, and a serious violation of petitioners right to procedural
due process.

Nonetheless, we find that there has been no misrepresentation. A cursory

perusal of Ang Ladlads initial petition shows that it never claimed to exist in each
province of the Philippines. Rather, petitioner alleged that the LGBT community in
the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100
affiliates and members around the country, and 4,044 members in its electronic
discussion group.[22] Ang Ladlad also represented itself to be a national LGBT
umbrella organization with affiliates around the Philippines composed of the
following LGBT networks:

Abra Gay Association

Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality
(GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP)
Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
 Zamboanga Gay Association Zamboanga City[23]

Since the COMELEC only searched for the names ANG LADLAD LGBT
or LADLADLGBT, it is no surprise that they found that petitioner had no presence in
any of these regions. In fact, if COMELECs findings are to be believed, petitioner
does not even exist in Quezon City, which is registered as Ang Ladlads principal
place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated
its compliance with the legal requirements for accreditation. Indeed, aside from
COMELECs moral objection and the belated allegation of non-existence, nowhere in
the records has the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under RA 7941 or the
guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang
Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to Accept

Ang Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At
bottom, what our non-establishment clause calls for is government neutrality in
religious matters.[24] Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality.[25] We thus find that it was grave violation
of the non-establishment clause for the COMELEC to utilize the Bible and the Koran
to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed

Resolutions should depend, instead, on whether the COMELEC is able to advance
some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in ways that
have primarily secular effects. As we held in Estrada v. Escritor:[26]

x x x The morality referred to in the law is public and necessarily secular,

not religious as the dissent of Mr. Justice Carpio holds. "Religious
teachings as expressed in public debate may influence the civil public order
but public moral disputes may be resolved only on grounds articulable in
secular terms." Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals
would require conformity to what some might regard as religious programs
 or agenda. The non-believers would therefore be compelled to conform to
a standard of conduct buttressed by a religious belief, i.e., to a "compelled
religion," anathema to religious freedom. Likewise, if government based
its actions upon religious beliefs, it would tacitly approve or endorse that
belief and thereby also tacitly disapprove contrary religious or non-
religious views that would not support the policy. As a result, government
will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality
as expressed in criminal law like concubinage, must have a secular
purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society" and not because the conduct is
proscribed by the beliefs of one religion or the other. Although admittedly,
moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might
also be adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind endeavors to
regulate the temporal and spiritual institutions of society in a uniform
manner, harmonizing earth with heaven. Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in its deepest roots, but it
must have an articulable and discernible secular purpose and justification
to pass scrutiny of the religion clauses. x x x Recognizing the religious
nature of the Filipinos and the elevating influence of religion in society,
however, the Philippine constitution's religion clauses prescribe not a strict
but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time
strive to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests.[27]

Public Morals as a Ground to Deny Ang

Ladlads Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality

and homosexual conduct may be religion-based, it has long been transplanted into
generally accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group

consists of LGBTs but because of the danger it poses to the people
especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring down the
 standard of morals we cherish in our civilized society. Any society without
a set of moral precepts is in danger of losing its own existence.[28]

We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is
not difficult to imagine the reasons behind this censure religious beliefs, convictions
about the preservation of marriage, family, and procreation, even dislike or distrust of
homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that
the Philippines has not seen fit to criminalize homosexual conduct. Evidently,
therefore, these generally accepted public morals have not been convincingly
transplanted into the realm of law.[29]

The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that there should have been a finding
by the COMELEC that the groups members have committed or are committing
immoral acts.[30] The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of

a different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and
action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both
the straights and the gays. Certainly this is not the intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented,
or why special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioners admission into the party-list
system would be so harmful as to irreparably damage the moral fabric of society. We,
of course, do not suggest that the state is wholly without authority to regulate matters
concerning morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered detrimental to
society.Nonetheless, we cannot countenance advocates who, undoubtedly with the
loftiest of intentions, situate morality on one end of an argument or another, without
bothering to go through the rigors of legal reasoning and explanation. In this, the
notion of morality is robbed of all value. Clearly then, the bare invocation of morality
will not remove an issue from our scrutiny.

We also find the COMELECs reference to purported violations of our penal

and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code
defines a nuisance as any act, omission, establishment, condition of property, or
anything else which shocks, defies, or disregards decency or morality, the remedies
for which are a prosecution under the Revised Penal Code or any local ordinance, a
civil action, or abatement without judicial proceedings.[32] A violation of Article 201
of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt
to support a criminal conviction. It hardly needs to be emphasized that mere allegation
of violation of laws is not proof, and a mere blanket invocation of public morals
cannot replace the institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in the
party-list system. The denial of Ang Ladlads registration on purely moral grounds
amounts more to a statement of dislike and disapproval of homosexuals, rather than a
tool to further any substantial public interest.Respondents blanket justifications give
rise to the inevitable conclusion that the COMELEC targets homosexuals themselves
as a class, not because of any particular morally reprehensible act. It is this selective
targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which

provides nor shall any person be denied equal protection of the laws, courts have
never interpreted the provision as an absolute prohibition on classification. Equality,
said Aristotle, consists in the same treatment of similar persons.[33] The equal
protection clause guarantees that no person or class of persons shall be deprived of the
same protection of laws which is enjoyed by other persons or other classes in the
same place and in like circumstances.[34]

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right
nor targets a suspect class, we will uphold the classification as long as it bears a
rational relationship to some legitimate government end.[35] In Central Bank
Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n
our jurisdiction, the standard of analysis of equal protection challenges x x x have
followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution.[37]
 The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient
reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief.No law exists to criminalize homosexual
behavior or expressions or parties about homosexual behavior. Indeed, even if we
were to assume that public opinion is as the COMELEC describes it, the asserted state
interest here that is, moral disapproval of an unpopular minority is not a legitimate
state interest that is sufficient to satisfy rational basis review under the equal
protection clause. The COMELECs differentiation, and its unsubstantiated claim
that Ang Ladlad cannot contribute to the formulation of legislation that would benefit
the nation, furthers no legitimate state interest other than disapproval of or dislike for a
disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the same
basis as other political parties similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply with equal force to
LGBTs, and they deserve to participate in the party-list system on the same basis as
other marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating

LGBTs from heterosexuals insofar as the party-list system is concerned does not
imply that any other law distinguishing between heterosexuals and homosexuals
under different circumstances would similarly fail. We disagree with the OSGs
position that homosexuals are a class in themselves for the purposes of the equal
protection clause.[38] We are not prepared to single out homosexuals as a separate
class meriting special or differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make such a ruling today.
Petitioner itself has merely demanded that it be recognized under the same basis as all
other groups similarly situated, and that the COMELEC made an unwarranted and
impermissible classification not justified by the circumstances of the case.

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal democratic
means.[39] It is in the public square that deeply held convictions and differing opinions
should be distilled and deliberated upon. As we held in Estrada v. Escritor:[40]
 In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or
espousing religious belief, and these citizens have equal access to the
public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for
public deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle in this
democratic governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the
beliefs and preferences of the majority, i.e., the mainstream or median
groups. Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies including protection of religious
freedom "not only for a minority, however small not only for a majority,
however large but for each of us" the majority imposes upon itself a self-
denying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a

democratic society, and this freedom applies not only to those that are favorably
received but also to those that offend, shock, or disturb. Any restriction imposed in
this sphere must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court to impose its views
on the populace. Otherwise stated, the COMELEC is certainly not free to interfere
with speech for no better reason than promoting an approved message or discouraging
a disfavored one.

This position gains even more force if one considers that homosexual conduct
is not illegal in this country. It follows that both expressions concerning ones
homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public morality
does not justify criminalizing same-sex conduct.[41] European and United Nations
judicial decisions have ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection provisions in foreign and
international texts.[42] To the extent that there is much to learn from other jurisdictions
that have reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding on Philippine
courts, may nevertheless have persuasive influence on the Courts analysis.
 In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to expressive
conduct. In order to justify the prohibition of a particular expression of opinion, public
institutions must show that their actions were caused by something more than a mere
desire to avoid the discomfort and unpleasantness that always accompany an
unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and

beliefs, in Europe, with its vibrant human rights tradition, the European Court of
Human Rights (ECHR) has repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with democratic
principles. The ECHR has emphasized that political ideas that challenge the existing
order and whose realization is advocated by peaceful means must be afforded a
proper opportunity of expression through the exercise of the right of association, even
if such ideas may seem shocking or unacceptable to the authorities or the majority of
the population.[44] A political group should not be hindered solely because it seeks to
publicly debate controversial political issues in order to find solutions capable of
satisfying everyone concerned.[45] Only if a political party incites violence or puts
forward policies that are incompatible with democracy does it fall outside the
protection of the freedom of association guarantee.[46]

We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and express
that view. On the other hand, LGBTs and their supporters, in all likelihood, believe
with equal fervor that relationships between individuals of the same sex are morally
equivalent to heterosexual relationships. They, too, are entitled to hold and express
that view. However, as far as this Court is concerned, our democracy precludes using
the religious or moral views of one part of the community to exclude from
consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion, even at its most
liberal, reflect a clear-cut strong consensus favorable to gay rights claims and
we neither attempt nor expect to affect individual perceptions of homosexuality
through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of their
right to voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any

assembly denied. [COMELEC] simply exercised its authority to review
and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be
said to be a transgression of Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members
of the petitioner to freely take part in the conduct of elections. Their right to
vote will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner

contends that the denial of Ang Ladlads petition has the clear and
immediate effect of limiting, if not outrightly nullifying the capacity of its
members to fully and equally participate in public life through engagement
in the party list elections.

This argument is puerile. The holding of a public office is not a

right but a privilege subject to limitations imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its qualifications
to participate in the party-list system, and as advanced by the OSG itself the moral
objection offered by the COMELEC was not a limitation imposed by law. To the
extent, therefore, that the petitioner has been precluded, because of COMELECs
action, from publicly expressing its views as a political party and participating on an
equal basis in the political process with other equally-qualified party-list candidates,
we find that there has, indeed, been a transgression of petitioners fundamental rights.

Non-Discrimination and International

Law

In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically in its
attempt to bring about a more just and humane world order. For individuals and
groups struggling with inadequate structural and governmental support, international
human rights norms are particularly significant, and should be effectively enforced in
domestic legal systems so that such norms may become actual, rather than ideal,
standards of conduct.

Our Decision today is fully in accord with our international obligations to

protect and promote human rights. In particular, we explicitly recognize the principle
of non-discrimination as it relates to the right to electoral participation, enunciated in
the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general

application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or
ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights
Committee has opined that the reference to sex in Article 26 should be construed to
include sexual orientation.[48] Additionally, a variety of United Nations bodies have
declared discrimination on the basis of sexual orientation to be prohibited under
various international agreements.[49]

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
Likewise, the ICCPR states:

Article 25
Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable
restrictions:
 (a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which

shall be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in

his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to

electoral participation is elaborated by the Human Rights Committee in its General
Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of

every citizen to take part in the conduct of public affairs, the right to vote
and to be elected and the right to have access to public service. Whatever
form of constitution or government is in force, the Covenant requires
States to adopt such legislative and other measures as may be necessary to
ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the
consent of the people and in conformity with the principles of the
Covenant.

xxxx

15. The effective implementation of the right and the opportunity to

stand for elective office ensures that persons entitled to vote have a free
choice of candidates. Any restrictions on the right to stand for election,
such as minimum age, must be justifiable on objective and reasonable
criteria. Persons who are otherwise eligible to stand for election should not
be excluded by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political affiliation. No
person should suffer discrimination or disadvantage of any kind because of
that person's candidacy. States parties should indicate and explain the
legislative provisions which exclude any group or category of persons
from elective office.[50]

We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines international law obligations, the
blanket invocation of international law is not the panacea for all social ills. We refer
now to the petitioners invocation of the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to Sexual Orientation and Gender
Identity),[51] which petitioner declares to reflect binding principles of international law.
 At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines. There are declarations
and obligations outlined in said Principles which are not reflective of the current state
of international law, and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International Court of
Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of these
alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of
society wants or demands is automatically a human right. This is not an arbitrary
human intervention that may be added to or subtracted from at will. It is unfortunate
that much of what passes for human rights today is a much broader context of needs
that identifies many social desires as rights in order to further claims that international
law obliges states to sanction these innovations. This has the effect of diluting real
human rights, and is a result of the notion that if wants are couched in rights language,
then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting
of a declaration formulated by various international law professors, are at best de lege
ferenda and do not constitute binding obligations on the Philippines. Indeed, so much
of contemporary international law is characterized by the soft law nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony,
and respect for human rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio juris.[53]

As a final note, we cannot help but observe that the social issues presented by
this case are emotionally charged, societal attitudes are in flux, even the psychiatric
and religious communities are divided in opinion. This Courts role is not to impose its
own view of acceptable behavior. Rather, it is to apply the Constitution and laws as
best as it can, uninfluenced by public opinion, and confident in the knowledge that our
democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the

Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP
No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioners application for party-list accreditation.
SO ORDERED.
 MARIANO C. DEL CASTILLO
Associate Justice

THIRD DIVISION

G.R. No. 202666 September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID

SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN
DOES, Respondents.

DECISION

VELASCO, JR., J.:

The individual's desire for privacy is never absolute, since participation in society is
an equally powerful desire. Thus each individual is continually engaged in a personal
adjustment process in which he balances the desire for privacy with the desire for
disclosure and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.

- Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
in relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on
the Writ of Habeas Data." Petitioners herein assail the July 27, 2012 Decision 2 of the
Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB,
which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were,
during the period material, graduating high school students at St. Theresa's College
(STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for
a beach party they were about to attend, Julia and Julienne, along with several
others, took digital pictures of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at

STC’s high school department, learned from her students that some seniors at STC
posted pictures online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls in the
photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes
Taboada (Chloe), among others.

Using STC’s computers, Escudero’s students logged in to their respective personal

Facebook accounts and showed her photos of the identified students, which include:
(a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and
(b) Julia and Julienne along the streets of Cebu wearing articles of clothing that
show virtually the entirety of their black brassieres. What is more, Escudero’s
students claimed that there were times when access to or the availability of the
identified students’ photos was not confined to the girls’ Facebook friends, 4but were,
in fact, viewable by any Facebook user.5

Upon discovery, Escudero reported the matter and, through one of her student’s
Facebook page, showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-
in-Charge, for appropriate action. Thereafter, following an investigation, STC found
the identified students to have deported themselves in a manner proscribed by the
school’s Student Handbook, to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholicbeverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains

sexually suggestive messages, language or symbols; and 6. Posing and
uploading pictures on the Internet that entail ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr.
Purisima), STC’s high school principal and ICM6 Directress. They claimed that during
the meeting, they were castigated and verbally abused by the STC officials present
in the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda
Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following
day that, as part of their penalty, they are barred from joining the commencement
exercises scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M.
Tan (Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City
against STC, et al., docketed as Civil Case No. CEB-38594.7In it, Tan prayed that
defendants therein be enjoined from implementing the sanction that precluded
Angela from joining the commencement exercises.

On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia,
joined the fray as an intervenor. On March 28, 2012, defendants inCivil Case No.
CEB-38594 filed their memorandum, containing printed copies of the photographs in
issue as annexes. That same day, the RTC issued a temporary restraining order
(TRO) allowing the students to attend the graduation ceremony, to which STC filed a
motion for reconsideration.

Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students
from participating in the graduation rites, arguing that, on the date of the
commencement exercises, its adverted motion for reconsideration on the issuance
ofthe TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of
Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of the following
considerations:

1. The photos of their children in their undergarments (e.g., bra) were taken
for posterity before they changed into their swimsuits on the occasion of a
birthday beach party;
 2. The privacy setting of their children’s Facebook accounts was set at
"Friends Only." They, thus, have a reasonable expectation of privacy which
must be respected.

3. Respondents, being involved in the field of education, knew or ought to

have known of laws that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the girls, whose privacy has
been invaded, are the victims in this case, and not the offenders. Worse, after
viewing the photos, the minors were called "immoral" and were punished
outright;

4. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their rights by
saving digital copies of the photos and by subsequently showing them to
STC’s officials. Thus, the Facebook accounts of petitioners’ children were
intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of

information, data, and digital images happened at STC’s Computer
Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted
by respondents through their memorandum submitted to the RTC in
connection with Civil Case No. CEB-38594. To petitioners, the interplay of the
foregoing constitutes an invasion of their children’s privacy and, thus, prayed
that: (a) a writ of habeas databe issued; (b) respondents be ordered to
surrender and deposit with the court all soft and printed copies of the
subjectdata before or at the preliminary hearing; and (c) after trial, judgment
be rendered declaring all information, data, and digital images accessed,
saved or stored, reproduced, spread and used, to have been illegally
obtained inviolation of the children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order
dated July 5, 2012, issued the writ of habeas data. Through the same Order, herein
respondents were directed to file their verified written return, together with the
supporting affidavits, within five (5) working days from service of the writ.

In time, respondents complied with the RTC’s directive and filed their verified written
return, laying down the following grounds for the denial of the petition, viz: (a)
petitioners are not the proper parties to file the petition; (b) petitioners are engaging
in forum shopping; (c) the instant case is not one where a writ of habeas data may
issue;and (d) there can be no violation of their right to privacy as there is no
reasonable expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas
data. The dispositive portion of the Decision pertinently states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby

DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or threatened
violation of the minors’ right to privacy, one of the preconditions for the issuance of
the writ of habeas data. Moreover, the court a quoheld that the photos, having been
uploaded on Facebook without restrictions as to who may view them, lost their
privacy in some way. Besides, the RTC noted, STC gathered the photographs
through legal means and for a legal purpose, that is, the implementation of the
school’s policies and rules on discipline.

Not satisfied with the outcome, petitioners now come before this Court pursuant to
Section 19 of the Rule on Habeas Data.10

The Issues

The main issue to be threshed out inthis case is whether or not a writ of habeas
datashould be issued given the factual milieu. Crucial in resolving the controversy,
however, is the pivotal point of whether or not there was indeed an actual or
threatened violation of the right to privacy in the life, liberty, or security of the minors
involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas Data

The writ of habeas datais a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.11 It is an independent and
summary remedy designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum to enforce one’s right
to the truth and to informational privacy. It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such information is
being collected through unlawful means in order to achieve unlawful ends. 12

In developing the writ of habeas data, the Court aimed to protect an individual’s right
to informational privacy, among others. A comparative law scholar has, in fact,
defined habeas dataas "a procedure designed to safeguard individual freedom from
abuse in the information age."13 The writ, however, will not issue on the basis merely
of an alleged unauthorized access to information about a person.Availment of the
writ requires the existence of a nexus between the right to privacy on the one hand,
and the right to life, liberty or security on the other.14 Thus, the existence of a
person’s right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or
security of the victim are indispensable before the privilege of the writ may be
extended.15

Without an actionable entitlement in the first place to the right to informational

privacy, a habeas datapetition will not prosper. Viewed from the perspective of the
case at bar,this requisite begs this question: given the nature of an online social
network (OSN)––(1) that it facilitates and promotes real-time interaction among
millions, if not billions, of users, sans the spatial barriers,16 bridging the gap created
by physical space; and (2) that any information uploaded in OSNs leavesan indelible
trace in the provider’s databases, which are outside the control of the end-users––is
there a right to informational privacy in OSN activities of its users? Before
addressing this point, We must first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and
enforced disappearances

Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted

solely for the purpose of complementing the Writ of Amparoin cases of extralegal
killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:

Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas
data. However, in cases of extralegal killings and enforced disappearances, the
petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party

within the fourth civil degreeof consanguinity or affinity, in default of those
mentioned in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to
cases of extralegal killings or enforced disappearances, the above underscored
portion of Section 2, reflecting a variance of habeas data situations, would not have
been made.

Habeas data, to stress, was designed "to safeguard individual freedom from abuse
in the information age."17 As such, it is erroneous to limit its applicability to extralegal
killings and enforced disappearances only. In fact, the annotations to the Rule
preparedby the Committee on the Revision of the Rules of Court, after explaining
that the Writ of Habeas Data complements the Writ of Amparo, pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to

enforce one’s right to privacy, more specifically the right to informational privacy. The
remedies against the violation of such right can include the updating, rectification,
suppression or destruction of the database or information or files in possession or in
control of respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ of
Habeas Datamay also be availed of in cases outside of extralegal killings and
enforced disappearances.

b. Meaning of "engaged" in the gathering, collecting or storing of data or information

Respondents’ contention that the habeas data writ may not issue against STC, it not
being an entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party,
while valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall
be available only against abuses of a person or entity engaged in the businessof
gathering, storing, and collecting of data. As provided under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais a remedy available to any
person whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved party. (emphasis
Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the
idea that habeas data is a protection against unlawful acts or omissions of public
officials and of private individuals or entities engaged in gathering, collecting, or
storing data about the aggrieved party and his or her correspondences, or about his
or her family. Such individual or entity need not be in the business of collecting or
storing data.

To "engage" in something is different from undertaking a business endeavour. To

"engage" means "to do or take part in something."19 It does not necessarily mean
that the activity must be done in pursuit of a business. What matters is that the
person or entity must be gathering, collecting or storing said data or information
about the aggrieved party or his or her family. Whether such undertaking carries the
element of regularity, as when one pursues a business, and is in the nature of a
personal endeavour, for any other reason or even for no reason at all, is immaterial
and such will not prevent the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach
of the writ to a very small group, i.e., private persons and entities whose business is
data gathering and storage, and in the process decreasing the effectiveness of the
writ asan instrument designed to protect a right which is easily violated in view of
rapid advancements in the information and communications technology––a right
which a great majority of the users of technology themselves are not capable of
protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of
the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacyhas, through time, greatly evolved, with technological

advancements having an influential part therein. This evolution was briefly recounted
in former Chief Justice Reynato S. Puno’s speech, The Common Right to
Privacy,20 where he explained the three strands of the right to privacy, viz: (1)
locational or situational privacy;21(2) informational privacy; and (3) decisional
privacy.22 Of the three, what is relevant to the case at bar is the right to informational
privacy––usually defined as the right of individuals to control information about
themselves.23

With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each system’s inherent vulnerability to attacks and
intrusions, there is more reason that every individual’s right to control said flow of
information should be protected and that each individual should have at least a
reasonable expectation of privacy in cyberspace. Several commentators regarding
privacy and social networking sites, however, all agree that given the millions of
OSN users, "[i]n this [Social Networking] environment, privacy is no longer grounded
in reasonable expectations, but rather in some theoretical protocol better known as
wishful thinking."24

It is due to this notion that the Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or
information and to remedy possible violations of the right to privacy.25 In the same
vein, the South African High Court, in its Decision in the landmark case, H v.
W,26promulgated on January30, 2013, recognized that "[t]he law has to take into
account the changing realities not only technologically but also socially or else it will
lose credibility in the eyes of the people. x x x It is imperative that the courts respond
appropriately to changing times, acting cautiously and with wisdom." Consistent with
this, the Court, by developing what may be viewed as the Philippine model of the
writ of habeas data, in effect, recognized that, generally speaking, having an
expectation of informational privacy is not necessarily incompatible with engaging in
cyberspace activities, including those that occur in OSNs.

The question now though is up to whatextent is the right to privacy protected in

OSNs? Bear in mind that informational privacy involves personal information. At the
same time, the very purpose of OSNs is socializing––sharing a myriad of
information,27 some of which would have otherwise remained personal.

b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to
stay connected to other members of the same or different social media platform
through the sharing of statuses, photos, videos, among others, depending on the
services provided by the site. It is akin to having a room filled with millions of
personal bulletin boards or "walls," the contents of which are under the control of
each and every user. In his or her bulletin board, a user/owner can post anything––
from text, to pictures, to music and videos––access to which would depend on
whether he or she allows one, some or all of the other users to see his or her posts.
Since gaining popularity, the OSN phenomenon has paved the way to the creation of
various social networking sites, includingthe one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people use "to
stay connected with friends and family, to discover what’s going on in the world, and
to share and express what matters to them."28

Facebook connections are established through the process of "friending" another

user. By sending a "friend request," the user invites another to connect their
accounts so that they can view any and all "Public" and "Friends Only" posts of the
other.Once the request is accepted, the link is established and both users are
permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships
with other users, whereby the user gives his or her "Facebook friend" access to his
or her profile and shares certain information to the latter.29

To address concerns about privacy,30 but without defeating its purpose, Facebook
was armed with different privacy tools designed to regulate the accessibility of a
user’s profile31 as well as information uploaded by the user. In H v. W,32 the South
Gauteng High Court recognized this ability of the users to "customize their privacy
settings," but did so with this caveat: "Facebook states in its policies that, although it
makes every effort to protect a user’s information, these privacy settings are not
foolproof."33

For instance, a Facebook user canregulate the visibility and accessibility of digital
images(photos), posted on his or her personal bulletin or "wall," except for the
user’sprofile picture and ID, by selecting his or her desired privacy setting:

(a) Public - the default setting; every Facebook user can view the photo;

(b) Friends of Friends - only the user’s Facebook friends and their friends can
view the photo;

(b) Friends - only the user’s Facebook friends can view the photo;

(c) Custom - the photo is made visible only to particular friends and/or
networks of the Facebook user; and
 (d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up
barriers to broaden or limit the visibility of his or her specific profile content, statuses,
and photos, among others, from another user’s point of view. In other words,
Facebook extends its users an avenue to make the availability of their Facebook
activities reflect their choice as to "when and to what extent to disclose facts about
[themselves] – and to put others in the position of receiving such
confidences."34 Ideally, the selected setting will be based on one’s desire to interact
with others, coupled with the opposing need to withhold certain information as well
as to regulate the spreading of his or her personal information. Needless to say, as
the privacy setting becomes more limiting, fewer Facebook users can view that
user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

Without these privacy settings, respondents’ contention that there is no reasonable

expectation of privacy in Facebook would, in context, be correct. However, such is
not the case. It is through the availability of said privacy tools that many OSN users
are said to have a subjective expectation that only those to whomthey grant access
to their profile will view the information they post or upload thereto.35

This, however, does not mean thatany Facebook user automatically has a protected
expectation of privacy inall of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners,manifest the
intention to keepcertain posts private, through the employment of measures to
prevent access thereto or to limit its visibility.36 And this intention can materialize in
cyberspace through the utilization of the OSN’s privacy tools. In other words,
utilization of these privacy tools is the manifestation,in cyber world, of the user’s
invocation of his or her right to informational privacy.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny
access to his or her post orprofile detail should not be denied the informational
privacy right which necessarily accompanies said choice.38Otherwise, using these
privacy tools would be a feckless exercise, such that if, for instance, a user uploads
a photo or any personal information to his or her Facebook page and sets its privacy
level at "Only Me" or a custom list so that only the user or a chosen few can view it,
said photo would still be deemed public by the courts as if the user never chose to
limit the photo’s visibility and accessibility. Such position, if adopted, will not only
strip these privacy tools of their function but it would also disregard the very intention
of the user to keep said photo or information within the confines of his or her private
space.

We must now determine the extent that the images in question were visible to other
Facebook users and whether the disclosure was confidential in nature. In other
words, did the minors limit the disclosure of the photos such that the images were
kept within their zones of privacy? This determination is necessary in resolving the
issue of whether the minors carved out a zone of privacy when the photos were
uploaded to Facebook so that the images will be protected against unauthorized
access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being
violated, insist that Escudero intruded upon their children’s Facebook accounts,
downloaded copies ofthe pictures and showed said photos to Tigol. To them, this
was a breach of the minors’ privacy since their Facebook accounts, allegedly, were
under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure was only limited
since their profiles were not open to public viewing. Therefore, according to them,
people who are not their Facebook friends, including respondents, are barred from
accessing said post without their knowledge and consent. Aspetitioner’s children
testified, it was Angelawho uploaded the subjectphotos which were only viewable by
the five of them,40 although who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that "my students showed me
some pictures of girls cladin brassieres. This student [sic] of mine informed me that
these are senior high school [students] of STC, who are their friends in [F]acebook. x
x x They then said [that] there are still many other photos posted on the Facebook
accounts of these girls. At the computer lab, these students then logged into their
Facebook account [sic], and accessed from there the various photographs x x x.
They even told me that there had been times when these photos were ‘public’ i.e.,
not confined to their friends in Facebook."

In this regard, We cannot give muchweight to the minors’ testimonies for one key
reason: failure to question the students’ act of showing the photos to Tigol disproves
their allegation that the photos were viewable only by the five of them. Without any
evidence to corroborate their statement that the images were visible only to the five
of them, and without their challenging Escudero’s claim that the other students were
able to view the photos, their statements are, at best, self-serving, thus deserving
scant consideration.42

It is well to note that not one of petitioners disputed Escudero’s sworn account that
her students, who are the minors’ Facebook "friends," showed her the photos using
their own Facebook accounts. This only goes to show that no special means to be
able to viewthe allegedly private posts were ever resorted to by Escudero’s
students,43 and that it is reasonable to assume, therefore, that the photos were, in
reality, viewable either by (1) their Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is"Public," it can be surmised
that the photographs in question were viewable to everyone on Facebook, absent
any proof that petitioners’ children positively limited the disclosure of the photograph.
If suchwere the case, they cannot invoke the protection attached to the right to
informational privacy. The ensuing pronouncement in US v. Gines-Perez44 is most
instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances suchas
here, where the Defendant did not employ protective measures or devices that
would have controlled access to the Web page or the photograph itself.45

Also, United States v. Maxwell46 held that "[t]he more open the method of
transmission is, the less privacy one can reasonably expect. Messages sent to the
public at large inthe chat room or e-mail that is forwarded from correspondent to
correspondent loses any semblance of privacy."

That the photos are viewable by "friends only" does not necessarily bolster the
petitioners’ contention. In this regard, the cyber community is agreed that the digital
images under this setting still remain to be outside the confines of the zones of
privacy in view of the following:

(1) Facebook "allows the world to be more open and connected by giving its
users the tools to interact and share in any conceivable way;" 47
 (2) A good number of Facebook users "befriend" other users who are total
strangers;48

(3) The sheer number of "Friends" one user has, usually by the hundreds;
and

(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others
who are not Facebook friends with the former, despite its being visible only
tohis or her own Facebook friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to
"Friends" is no assurance that it can no longer be viewed by another user who is not
Facebook friends with the source of the content. The user’s own Facebook friend
can share said content or tag his or her own Facebook friend thereto, regardless of
whether the user tagged by the latter is Facebook friends or not with the former.
Also, when the post is shared or when a person is tagged, the respective Facebook
friends of the person who shared the post or who was tagged can view the post, the
privacy setting of which was set at "Friends."

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not
Facebook friends. If C, A’s Facebook friend, tags B in A’s post, which is set at
"Friends," the initial audience of 100 (A’s own Facebook friends) is dramatically
increased to 300 (A’s 100 friends plus B’s 200 friends or the public, depending upon
B’s privacy setting). As a result, the audience who can view the post is effectively
expanded––and to a very large extent.

This, along with its other features and uses, is confirmation of Facebook’s proclivity
towards user interaction and socialization rather than seclusion or privacy, as it
encourages broadcasting of individual user posts. In fact, it has been said that OSNs
have facilitated their users’ self-tribute, thereby resulting into the "democratization of
fame."51Thus, it is suggested, that a profile, or even a post, with visibility set at
"Friends Only" cannot easily, more so automatically, be said to be "very private,"
contrary to petitioners’ argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned
students’ Facebook friends, respondent STC can hardly be taken to task for the
perceived privacy invasion since it was the minors’ Facebook friends who showed
the pictures to Tigol. Respondents were mere recipients of what were posted. They
did not resort to any unlawful means of gathering the information as it was voluntarily
given to them by persons who had legitimate access to the said posts. Clearly, the
fault, if any, lies with the friends of the minors. Curiously enough, however, neither
the minors nor their parents imputed any violation of privacy against the students
who showed the images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced

and broadcasted the photographs. In fact, what petitioners attributed to respondents
as an act of offensive disclosure was no more than the actuality that respondents
appended said photographs in their memorandum submitted to the trial court in
connection with Civil Case No. CEB-38594.52 These are not tantamount to a violation
of the minor’s informational privacy rights, contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise,
the photos of minor students scantily clad, are personal in nature, likely to affect, if
indiscriminately circulated, the reputation of the minors enrolled in a conservative
institution. However, the records are bereft of any evidence, other than bare
assertions that they utilized Facebook’s privacy settings to make the photos visible
only to them or to a select few. Without proof that they placed the photographs
subject of this case within the ambit of their protected zone of privacy, they cannot
now insist that they have an expectation of privacy with respect to the photographs
in question.

Had it been proved that the access tothe pictures posted were limited to the original
uploader, through the "Me Only" privacy setting, or that the user’s contact list has
been screened to limit access to a select few, through the "Custom" setting, the
result may have been different, for in such instances, the intention to limit access to
the particular post, instead of being broadcasted to the public at large or all the
user’s friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that "the best filter is the one between your children’s ears."53 This
means that self-regulation on the part of OSN users and internet consumers
ingeneral is the best means of avoiding privacy rights violations.54 As a cyberspace
communitymember, one has to be proactive in protecting his or her own privacy. 55 It
is in this regard that many OSN users, especially minors, fail.Responsible social
networking or observance of the "netiquettes"56 on the part of teenagers has been
the concern of many due to the widespreadnotion that teenagers can sometimes go
too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.57

Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may be
mosttimely. Too, it is not only STC but a number of schools and organizations have
already deemed it important to include digital literacy and good cyber citizenshipin
their respective programs and curricula in view of the risks that the children are
exposed to every time they participate in online activities.58 Furthermore, considering
the complexity of the cyber world and its pervasiveness,as well as the dangers that
these children are wittingly or unwittingly exposed to in view of their unsupervised
activities in cyberspace, the participation of the parents in disciplining and educating
their children about being a good digital citizen is encouraged by these institutions
and organizations. In fact, it is believed that "to limit such risks, there’s no substitute
for parental involvement and supervision."59

As such, STC cannot be faulted for being steadfast in its duty of teaching its
students to beresponsible in their dealings and activities in cyberspace, particularly
in OSNs, whenit enforced the disciplinary actions specified in the Student Handbook,
absenta showing that, in the process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever
they engage incyberspace activities. Accordingly, they should be cautious enough
1âwphi1

to control their privacy and to exercise sound discretion regarding how much
information about themselves they are willing to give up. Internet consumers ought
to be aware that, by entering or uploading any kind of data or information online,
they are automatically and inevitably making it permanently available online, the
perpetuation of which is outside the ambit of their control. Furthermore, and more
importantly, information, otherwise private, voluntarily surrendered by them can be
opened, read, or copied by third parties who may or may not be allowed access to
such.

It is, thus, incumbent upon internet users to exercise due diligence in their online
dealings and activities and must not be negligent in protecting their rights. Equity
serves the vigilant. Demanding relief from the courts, as here, requires that
claimants themselves take utmost care in safeguarding a right which they allege to
have been violated. These are indispensable. We cannot afford protection to
persons if they themselves did nothing to place the matter within the confines of their
private zone. OSN users must be mindful enough to learn the use of privacy tools, to
use them if they desire to keep the information private, and to keep track of changes
in the available privacy settings, such as those of Facebook, especially because
Facebook is notorious for changing these settings and the site's layout often.

In finding that respondent STC and its officials did not violate the minors' privacy
rights, We find no cogent reason to disturb the findings and case disposition of the
court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision

dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc.
No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

EN BANC

G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION,

represented by the Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997
Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the
Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge
Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order
dated December 20, 2001 allowing Juan Antonio Muñoz, private respondent, to post
bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said
Order of December 20, 2001 filed by the Government of Hong Kong Special
Administrative Region, represented by the Philippine Department of Justice (DOJ),
petitioner. The petition alleges that both Orders were issued by respondent judge
with grave abuse of discretion amounting to lack or excess of jurisdiction as there is
no provision in the Constitution granting bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown
Colony of Hong Kong signed an "Agreement for the Surrender of Accused and
Convicted Persons." It took effect on June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and
became the Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court with three (3)
counts of the offense of "accepting an advantage as agent," in violation of Section 9
(1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also
faces seven (7) counts of the offense of conspiracy to defraud, penalized by the
common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of
arrest were issued against him. If convicted, he faces a jail term of seven (7) to
fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of
Justice a request for the provisional arrest of private respondent. The DOJ then
forwarded the request to the National Bureau of Investigation (NBI) which, in turn,
filed with the RTC of Manila, Branch 19 an application for the provisional arrest of
private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest
against private respondent. That same day, the NBI agents arrested and detained
him.

On October 14, 1999, private respondent filed with the Court of Appeals a petition
for certiorari, prohibition and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the
Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on
certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of
Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition of the
DOJ and sustaining the validity of the Order of Arrest against private respondent.
The Decision became final and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special

Administrative Region filed with the RTC of Manila a petition for the extradition of
private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10,
presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the
same case,- a petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying
the petition for bail, holding that there is no Philippine law granting bail in extradition
cases and that private respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil
Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent
judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the
Order denying his application for bail. This was granted by respondent judge in an
Order dated December 20, 2001 allowing private respondent to post bail, thus:

In conclusion, this Court will not contribute to accused’s further erosion of civil
liberties. The petition for bail is granted subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these
proceedings and will at all times hold himself amenable to orders and
 processes of this Court, will further appear for judgment. If accused fails in
this undertaking, the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing

its own motion for hold departure order before this Court even in extradition
proceeding; and

4. Accused is required to report to the government prosecutors handling this

case or if they so desire to the nearest office, at any time and day of the
week; and if they further desire, manifest before this Court to require that all
the assets of accused, real and personal, be filed with this Court soonest, with
the condition that if the accused flees from his undertaking, said assets be
forfeited in favor of the government and that the corresponding lien/annotation
be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order,
but it was denied by respondent judge in his Order dated April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court committed grave
abuse of discretion amounting to lack or excess of jurisdiction in admitting private
respondent to bail; that there is nothing in the Constitution or statutory law providing
that a potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.

In his comment on the petition, private respondent maintained that the right to bail
guaranteed under the Bill of Rights extends to a prospective extraditee; and that
extradition is a harsh process resulting in a prolonged deprivation of one’s liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be
impaired, thus:

Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this

is not the first time that this Court has an occasion to resolve the question of whether
a prospective extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G.

Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a.
Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio
V. Panganiban, later Chief Justice, held that the constitutional provision on bail does
not apply to extradition proceedings. It is "available only in criminal proceedings,"
thus:

x x x. As suggested by the use of the word "conviction," the constitutional provision

on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies
only when a person has been arrested and detained for violation of Philippine
criminal laws. It does not apply to extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom as
thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per
Fernando, J., later CJ). It follows that the constitutional provision on bail will not
apply to a case like extradition, where the presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended" does not detract
from the rule that the constitutional right to bail is available only in criminal
proceedings. It must be noted that the suspension of the privilege of the writ
of habeas corpus finds application "only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII,
Constitution). Hence, the second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal proceedings for the aforementioned
offenses. It cannot be taken to mean that the right is available even in extradition
proceedings that are not criminal in nature.

At first glance, the above ruling applies squarely to private respondent’s case.
However, this Court cannot ignore the following trends in international law: (1) the
growing importance of the individual person in public international law who, in the
20th century, has gradually attained global recognition; (2) the higher value now
being given to human rights in the international sphere; (3) the corresponding duty of
countries to observe these universal human rights in fulfilling their treaty obligations;
and (4) the duty of this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights. Slowly, the
recognition that the individual person may properly be a subject of international law
is now taking root. The vulnerable doctrine that the subjects of international law are
limited only to states was dramatically eroded towards the second half of the past
century. For one, the Nuremberg and Tokyo trials after World War II resulted in the
unprecedented spectacle of individual defendants for acts characterized as
violations of the laws of war, crimes against peace, and crimes against humanity.
Recently, under the Nuremberg principle, Serbian leaders have been persecuted for
war crimes and crimes against humanity committed in the former Yugoslavia. These
significant events show that the individual person is now a valid subject of
international law.

On a more positive note, also after World War II, both international organizations
and states gave recognition and importance to human rights. Thus, on December
10, 1948, the United Nations General Assembly adopted the Universal Declaration
of Human Rights in which the right to life, liberty and all the other fundamental rights
of every person were proclaimed. While not a treaty, the principles contained in
the said Declaration are now recognized as customarily binding upon the
members of the international community. Thus, in Mejoff v. Director of
Prisons,2 this Court, in granting bail to a prospective deportee, held that under
the Constitution,3the principles set forth in that Declaration are part of the law of the
land. In 1966, the UN General Assembly also adopted the International Covenant on
Civil and Political Rights which the Philippines signed and ratified. Fundamental
among the rights enshrined therein are the rights of every person to life, liberty, and
due process.

The Philippines, along with the other members of the family of nations, committed to
uphold the fundamental human rights as well as value the worth and dignity of every
person. This commitment is enshrined in Section II, Article II of our Constitution
which provides: "The State values the dignity of every human person and
guarantees full respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person to liberty and due
process, ensuring that those detained or arrested can participate in the proceedings
before a court, to enable it to decide without delay on the legality of the detention
and order their release if justified. In other words, the Philippine authorities are under
obligation to make available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include the right to be
admitted to bail. While this Court in Purganan limited the exercise of the right to bail
to criminal proceedings, however, in light of the various international treaties giving
recognition and protection to human rights, particularly the right to life and liberty, a
reexamination of this Court’s ruling in Purganan is in order.

First, we note that the exercise of the State’s power to deprive an individual of
his liberty is not necessarily limited to criminal proceedings. Respondents in
administrative proceedings, such as deportation and quarantine, 4 have
likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of
the right to bail to criminal proceedings only. This Court has admitted to bail
persons who are not involved in criminal proceedings. In fact, bail has been
allowed in this jurisdiction to persons in detention during the pendency of
administrative proceedings, taking into cognizance the obligation of the
Philippines under international conventions to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing

deportation for failure to secure the necessary certificate of registration was granted
bail pending his appeal. After noting that the prospective deportee had committed no
crime, the Court opined that "To refuse him bail is to treat him as a person who has
committed the most serious crime known to law;" and that while deportation is not a
criminal proceeding, some of the machinery used "is the machinery of criminal law."
Thus, the provisions relating to bail was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this

Court ruled that foreign nationals against whom no formal criminal charges have
been filed may be released on bail pending the finality of an order of deportation. As
previously stated, the Court in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainee’s right to bail.

If bail can be granted in deportation cases, we see no justification why it should not
also be allowed in extradition cases. Likewise, considering that the Universal
Declaration of Human Rights applies to deportation cases, there is no reason why it
cannot be invoked in extradition cases. After all, both are administrative proceedings
where the innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must
be viewed in the light of the various treaty obligations of the Philippines concerning
respect for the promotion and protection of human rights. Under these treaties, the
presumption lies in favor of human liberty. Thus, the Philippines should see to it that
the right to liberty of every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law)
defines "extradition" as "the removal of an accused from the Philippines with the
object of placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with any criminal investigation
directed against him or the execution of a penalty imposed on him under the penal
or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created by
treaty, to demand the surrender of one accused or convicted of a crime within its
territorial jurisdiction, and the correlative duty of the other state to surrender him to
the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee
is a criminal, an extradition proceeding is not by its nature criminal, for it is not
punishment for a crime, even though such punishment may follow extradition. 10 It
is sui generis, tracing its existence wholly to treaty obligations between different
nations.11 It is not a trial to determine the guilt or innocence of the potential
extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in
character.13 Its object is to prevent the escape of a person accused or convicted of a
crime and to secure his return to the state from which he fled, for the purpose of trial
or punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following:

(a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the
means employed to attain the purpose of extradition is also "the machinery of
criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine
Extradition Law) which mandates the "immediate arrest and temporary detention
of the accused" if such "will best serve the interest of justice." We further note that
Section 20 allows the requesting state "in case of urgency" to ask for the
"provisional arrest of the accused, pending receipt of the request for
extradition;" and that release from provisional arrest "shall not prejudice re-arrest
and extradition of the accused if a request for extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all

earmarks of a criminal process. A potential extraditee may be subjected to
arrest, to a prolonged restraint of liberty, and forced to transfer to the
demanding state following the proceedings. "Temporary detention" may be a
necessary step in the process of extradition, but the length of time of the detention
should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and
remained incarcerated until December 20, 2001, when the trial court ordered his
admission to bail. In other words, he had been detained for over two (2) years
without having been convicted of any crime. By any standard, such an extended
period of detention is a serious deprivation of his fundamental right to liberty. In fact,
it was this prolonged deprivation of liberty which prompted the extradition court to
grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee,
however, there is no provision prohibiting him or her from filing a motion for bail, a
right to due process under the Constitution.

The applicable standard of due process, however, should not be the same as that in
criminal proceedings. In the latter, the standard of due process is premised on the
presumption of innocence of the accused. As Purganancorrectly points out, it is from
this major premise that the ancillary presumption in favor of admitting to bail arises.
Bearing in mind the purpose of extradition proceedings, the premise behind the
issuance of the arrest warrant and the "temporary detention" is the possibility of flight
of the potential extraditee. This is based on the assumption that such extraditee is a
fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears
the onus probandi of showing that he or she is not a flight risk and should be granted
bail.
The time-honored principle of pacta sunt servanda demands that the Philippines
honor its obligations under the Extradition Treaty it entered into with the Hong Kong
Special Administrative Region. Failure to comply with these obligations is a setback
in our foreign relations and defeats the purpose of extradition. However, it does not
necessarily mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditee’s rights to life, liberty, and due process. More so,
where these rights are guaranteed, not only by our Constitution, but also by
international conventions, to which the Philippines is a party. We should not,
therefore, deprive an extraditee of his right to apply for bail, provided that a certain
standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in

granting or denying bail can neither be the proof beyond reasonable doubt in
criminal cases nor the standard of proof of preponderance of evidence in civil cases.
While administrative in character, the standard of substantial evidence used in
administrative cases cannot likewise apply given the object of extradition law which
is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate
Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing
evidence" should be used in granting bail in extradition cases. According to
him, this standard should be lower than proof beyond reasonable doubt but higher
than preponderance of evidence. The potential extraditee must prove by "clear and
convincing evidence" that he is not a flight risk and will abide with all the orders and
processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show
that he is not a flight risk. Consequently, this case should be remanded to the trial
court to determine whether private respondent may be granted bail on the basis of
"clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court
to determine whether private respondent is entitled to bail on the basis of "clear and
convincing evidence." If not, the trial court should order the cancellation of his bail
bond and his immediate detention; and thereafter, conduct the extradition
proceedings with dispatch.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

EN BANC

G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor
for respondents.
TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been
denied in a decision of this Court of July 30, 1949. The history of the petitioner's
detention was thus briefly set forth in that decision, written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to
this country from Shanghai as a secret operative by the Japanese forces
during the latter's regime in these Islands. Upon liberation he was arrested as
a Japanese spy, by U.S. Army Counter Intelligence Corps. Later he was
handed to theCommonwealth Government for disposition in accordance with
Commonwealth Act No. 682. Thereafter, the People's Court ordered his
release. But the deportation Board taking his case up, found that having no
travel documents Mejoff was illegally in this country, and consequently
referred the matter to the immigration authorities. After the corresponding
investigation, the Board of commissioners of Immigration on April 5, 1948,
declared that Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a designation port of
entry and, therefore, it ordered that he be deported on the first available
transportation to Russia. The petitioner was then under custody, he having
been arrested on March 18, 1948. In May 1948 he was transferred to the
Cebu Provincial Jail together with three other Russians to await the arrival of
some Russian vessels. In July and August of that year two boats of Russian
nationality called at the Cebu Port. But their masters refused to take petitioner
and his companions alleging lack of authority to do so. In October 1948 after
repeated failures to ship this deportee abroad, the authorities removed him to
Bilibid Prison at Muntinglupa where he has been confined up to the present
time, inasmuch as the Commissioner of Immigration believes it is for the best
interests of the country to keep him under detention while arrangements for
his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary
detention is a necessary step in the process of exclusion or expulsion of undesirable
aliens and that pending arrangements for his deportation, the Government has the
right to hold the undesirable alien under confinement for a reasonable lenght of
time." It took note of the fact, manifested by the Solicitor General's representative in
the course of the of the oral argumment, that "this Government desires to expel the
alien, and does not relish keeping him at the people's expense . . . making efforts to
carry out the decree of exclusion by the highest officer of the land." No period was
fixed within which the immigration authorities should carry out the contemplated
deportation beyond the statement that "The meaning of 'reasonable time' depends
upon the circumstances, specially the difficulties of obtaining a passport, the
availability of transportation, the diplomatic arrangements with the governments
concerned and the efforts displayed to send the deportee away;" but the Court
warned that "under established precedents, too long a detention may justify the
issuance of a writ of habeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the
writer of this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for
outright discharge of the prisoner from custody. Mr. Justice Paras qualified his
dissent by stating that he might agree "to further detention of the herein petitioner,
provided that he be released if after six months, the Government is still unable to
deport him." This writer joined in the latter dissent but thought that two months
constituted reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found way and means of removing the petitioner out of the
country, and none are in sight, although it should be said in justice to the deportation
authorities, it was through no fault of theirs that no ship or country would take the
petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein

(Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290), even if they are
"stateless," which the petitioner claims to be. It is no less true however, as impliedly
stated in this Court's decision, supra, that foreign nationals, not enemy against
whom no charge has been made other than that their permission to stay has
expired, may not indefinitely be kept in detention. The protection against deprivation
of liberty without due process of law and except for crimes committed against the
laws of the land is not limited to Philippine citizens but extends to all residents,
except enemy aliens, regardless of nationality. Whether an alien who entered the
country in violation of its immigration laws may be detained for as long as the
Government is unable to deport him, is a point we need not decide. The petitioner's
entry into the Philippines was not unlawful; he was brought by the armed and
belligerent forces of a de facto government whose decrees were law furing the
occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally
accepted principles of international law as part of the law of Nation." And in a
resolution entitled "Universal Declaration of Human Rights" and approved by the
General Assembly of the United Nations of which the Philippines is a member, at its
plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there
resolved that "All human beings are born free and equal in degree and rights" (Art.
1); that "Everyone is entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, nationality or social origin, property, birth, or other
status" (Art. 2): that "Every one has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by
the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest,
detention or exile" (Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to
release from custody an alien who has been detained an unreasonably long period
of time by the Department of Justice after it has become apparent that although a
warrant for his deportation has been issued, the warrant can not be effectuated;" that
"the theory on which the court is given the power to act is that the warrant of
deportation, not having been able to be executed, is functus officio and the alien is
being held without any authority of law." The decision cited several cases which, it
said, settled the matter definitely in that jurisdiction, adding that the same result had
reached in innumerable cases elsewhere. The cases referred to were United States
ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d
955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte
Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28,
1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of
Staniszewski vs. Watkins (1948), 90 Fed. Supp., 132, which is nearly foursquare
with the case at hand. In that case a stateless person, formerly a Polish national,
resident in the United States since 1911 and many times serving as a seaman on
American vessels both in peace and in war, was ordered excluded from the United
States and detained at Ellis Island at the expense of the steamship company, when
he returned from a voyage on which he had shipped from New York for one or more
European ports and return to the United States. The grounds for his exclusion were
that he had no passport or immigration visa, and that in 1937 had been convicted of
perjury because in certain documents he presented himself to be an American
citizen. Upon his application for release on habeas corpus, the Court released him
upon his own recognizance. Judge Leibell, of the United States District Court for the
Southern District of New York, said in part:

When the return to the writ of habeas corpus came before this court, I
suggested that all interested parties . . . make an effort to arrange to have the
petitioner ship out of some country that he would receive him as a resident.
He is, a native-born Pole but the Polish Consul has advised him in writing that
he is no longer a Polish subject. This Government does not claim that he is a
Polish citizen. His attorney says he is a stateless. The Government is willing
that he go back to the ship, but if he were sent back aboard a ship and sailed
to the Port (Cherbourg, France) from which he last sailed to the United
States, he would probably be denied permission to land. There is no other
country that would take him, without proper documents.

It seems to me that this is a genuine hardship case and that the petitioner
should be released from custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in
custody almost seven months and practically admits it has no place to send
him out of this country. The steamship company, which employed him as one
of a group sent to the ship by the Union, with proper seaman's papers issued
by the United States Coast Guard, is paying $3 a day for petitioner's board at
Ellis Island. It is no fault of the steamship company that petitioner is an
inadmissible alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the
petitioner on his own recognizance. He will be required to inform the
immigration officials at Ellis Island by mail on the 15th of each month, stating
where he is employed and where he can be reached by mail. If the
government does succeed in arranging for petitioner's deportation to a
country that will be ready to receive him as a resident, it may then advise the
petitioner to that effect and arrange for his deportation in the manner provided
by law.

Although not binding upon this Court as a precedent, the case aforecited affords a
happy solution to the quandry in which the parties here finds themselves, solution
which we think is sensible, sound and compatible with law and the Constitution. For
this reason, and since the Philippine law on immigration was patterned after or
copied from the American law and practice, we choose to follow and adopt the
reasoning and conclusions in the Staniszewski decision with some modifications
which, it is believed, are in consonance with the prevailing conditions of peace and
order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the
return, that the petitioner was engaged in subversive activities, and fear was
expressed that he might join or aid the disloyal elements if allowed to be at large.
Bearing in mind the Government's allegation in its answer that "the herein petitioner
was brought to the Philippines by the Japanese forces," and the fact that Japan is no
longer at war with the United States or the Philippines nor identified with the
countries allied against these nations, the possibility of the petitioner's entertaining or
committing hostile acts prejudicial to the interest and security of this country seems
remote.

If we grant, for the sake of argument, that such a possibility exists, still the
petitioner's unduly prolonged detention would be unwarranted by law and the
Constitution, if the only purpose of the detention be to eliminate a danger that is by
no means actual, present, or uncontrolable. After all, the Government is not impotent
to deal with or prevent any threat by such measure as that just outlined. The thought
eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in
connection with the appliccation for bail of ten Communists convicted by a lower
court of advocacy of violent overthrow of the United States Government is, in
principle, pertinent and may be availed of at this juncture. Said the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior

after conviction, have forfeited their claim to bail. Grave public danger is said
to result from what they may be expected to do, in addition to what they have
done since their conviction. If I assume that defendants are disposed to
commit every opportune disloyal to act helpful to Communist countries, it is
still difficult to reconcile with traditional American law the jailing of persons by
the courts because of anticipated but as yet uncommitted crimes.
lmprisonment to protect society from predicted but unconsummated offenses
is so unprecedented in this country and so fraught with danger of excesses
and injustice that I am loath to resort it, even as a discretionary judicial
technique to supplement conviction of such offenses as those of which
defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped
up in the same constitutional bundle with those of these Communists. If an
anger or disgust with these defendants we throw out the bundle, we alsocast
aside protection for the liberties of more worthy critics who may be in
opposition to the government of some future day.

xxx xxx xxx 1âw phïl .nêt

If, however, I were to be wrong on all of these abstract or theoretical matters

of principle, there is a very practical aspect of this application which must not
be overlooked or underestimated — that is the disastrous effect on the
reputation of American justice if I should now send these men to jail and the
full Court later decide that their conviction is invalid. All experience with
litigation teaches that existence of a substantial question about a conviction
implies a more than negligible risk of reversal. Indeed this experience lies
back of our rule permitting and practice of allowing bail where such questions
exist, to avoid the hazard of unjustifiably imprisoning persons with consequent
reproach to our system of justice. If that is prudent judicial practice in the
ordinary case, how much more important to avoid every chance of handing to
the Communist world such an ideological weapon as it would have if this
country should imprison this handful of Communist leaders on a conviction
that our highest Court would confess to be illegal. Risks, of course, are
involved in either granting or refusing bail. I am naive enough to
underestimate the troublemaking propensities of the defendants. But, with the
Department of Justice alert to the the dangers, the worst they can accomplish
in the short time it will take to end the litigation is preferable to the possibility
of national embarrassment from a celebrated case of unjustified imprisonment
of Communist leaders. Under no circumstances must we permit their
symbolization of an evil force in the world to be hallowed and glorified by any
semblance of martyrdom. The way to avoid that risk is not to jail these men
until it is finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying
principle is of universal application. In fact, its ratio decidendi applies with greater
force to the present petition, since the right of accused to bail pending apppeal of his
case, as in the case of the ten Communists, depends upon the discretion of the
court, whereas the right to be enlarged before formal charges are instituted is
absolute. As already noted, not only are there no charges pending against the
petitioner, but the prospects of bringing any against him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the
petitioner from custody upon these terms: The petitioner shall be placed under the
surveillance of the immigration authorities or their agents in such form and manner
as may be deemed adequate to insure that he keep peace and be available when
the Government is ready to deport him. The surveillance shall be reasonable and the
question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the
above purpose in the amount of P5,000 with sufficient surety or sureties, which bond
the Commissioner of Immigration is authorized to exact by section 40 of
Commonwealth Act No. 613.

No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions

PABLO, M., disidente:

Disiento

En decision disada por este Tribunal en la primera causa de habeas corpus incoada
por el solicitante Boris Mejoff (G.R. No. L-2855, Mejoff vs. Director of Prisons)*, se
declaro que el habia venido a Filipinas procedente de Shanghai como espia
japones; en la liberacion, el ejercito americano le arresto por se espia, habiendo
sido mas tarde entregado al Gobierno del Commonwealth para ser tratado de
acuerdo con la ley No.682; pero como bajo el Codgo Penal Revisado, antes de su
enmienda por la Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga al
extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una
debida investigacion, la Junta de Departacion encontra que el solicitante no tenia
permiso para entrar en Filipinas; fue entregado a la Junta de Inmigacion, la cual
ordeno su deportacion a Rusia por el primer transporte disponible por haber vendo
aqui ilegalmente; fue enviado a Cebu para que alli se embarcase, pero los dos
barcos de nacionalidad rusa que llegaron a dicho puerto en julio y agosto de 1948
rehusaron admitirle. Por no encontrar transportacion para su departacion, Mejoff fue
enviado a la Prison de Muntinglupa, donde esta actualmente de tenido mientras el
Gobierno no encuenra medio de transportarle a Rusia.

La mayoria contiende que "The Petitioner's entry into the Philippines was not
unlawful; he was brought by the armed and belligerent forces of a de
facto government whose decrees were law during the occupation." Es tan ilegal la
entrada del solicitante como la del ejercito al que sirvio como espia. Ninguno tiene
derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que le trajo,
el solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si desea
proteccion, debe acudir al Gobierno Japones a cuyo ejercito el sirvio; el hecho de
que ya esta aqui no le da titulo para permanecer libre aqui. El que ha venido como
espia de enemigo del Pueblo de Filipinas no tiene derecho a pedir igual trato que
aquel ha entrado de buena fe. ¿Es que Filipinos tiene la obligacion de acoger a un
ciudadano indeseable de Rusia? ¿Desde cuando tiene que allanarse una nacion a
ser residencia de una extranjero que entro como enemigo o, peor aun, como espia?
Un Estado tiene indiscutible derecho a deportar y expulsar de su territorio a todo
extranjero indeseable.

El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho
a permanecer aqui. Puede ser departado a Rusio o a Shanghai de donde vino. Si
todos los rusos que, por alguno que otro motivo, o por odio al comunisomo, dejasen
su pais y emigrasen aqui reclamando igual derecho, no habria territorio suficiente
para ellos. Se puede decir otro tanto de los chinos que, so pretexto de no querer
someterse al regimen comunista, optasen por resider para siempre aqui. Y si los
mismos communistas chinos viniesen clandestinamente y despues reclamasen
igual proteccion como la concedida a Mejoff, ¿tendreos que darles por el gusto?

Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas,

titulada "Universal Declaration of Human Rights", en la que se establece, entre otras
cosas, que "no one shall be subjected to arbitrary arrest, detention or exile." Yo soy
de los que creen firmemente en lo sagrado de esta resolucion; no puedo permitir
que se detenga y se arreste a alguien sin motivo justificado, de una manera
arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de una
manera provisional. Tan pronto como haya barco disponible para su deportacion o
tan pronto como pueda embarcarse en algun barco para el extenjero o para
cualquier otro punto a donde quiera ir, dejara de ser detenido. Conste que no esta
preso como un criminal condenado por un delito; esta tratado como cualquier otro
extranjero sujeto a deportacion. Si el solicitante no hubiera sido espia, si no hubiera
venido aqui para ayudar a las hordas japonesas en la subyugacion del pueblo
filipino, si hubiera venido como visitante, por ejemplo, y, por azares de la fortuna, no
pudo salir, yo seria el primero en abogar por su liberacion inmediata.

Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal
of International Law, 732) en el cual el recurrente estuvo detenido ya casi siete
meses cuando se decreto su libertad en un recurso de habeas corpus. En nuestra
opinion, dicho caso no tiene simulitud con la causa presente. Staniszewski era
residente de los Estados desde 1911; estuvo sirviendo como marino en barcos
mercantes americanos en tiempo de guerra y se ordeno su detencion en Ellis Island
cuando volvio a America procedente de un viaje a Europa por no tener papeles de
inmigracion. Staniszewski no habia entrado en los Estados Unidos como espia,
estuvo residiendo en dicho pais por varios años, era ya habitante de los Estados
unidos. La ocupacion de marino es honrosa, la del espia mercenario, detestable. El
espia es peor que el enemigo. Este lucha cara a cara, y el espia, con disimulo y arte
engañosa, escucha lo que a Staniszewski se le haya puesto en libertad. Poner en
libertad a un espia es poner en peligro la seguridad del Estado.

En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija,

depende de la cincunstancia de cada caso particular. Es evidente que los medios de
comunicacion entre Filipinas y Rusia o Shanghai, debico a fala de relciones
diplomaticas, son completamente anormales. No es culpa del gobierno el que no
encuentre medios de transportacion para el.

La Comision de Inmigracion ha dado pasos para que la International Refugee

Organziation of the United Nations (IRO0 se hiciera cargo del recurrente para que
pueda ser repartriado o enviado a otro pais extranjero, pero el Jefe de dicha
organizacion contesto que no estaba en condicines para aceptar dicha
recomendacion.

William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se

decreto su deportacion por el Sub Secretario del Tarabajo por violacion de la Ley de
Inmigracion; solicto su libertad bajo el recurso de Habeas Corpus, y en 16 de
febrero de 1927 se denego su peticion; no se le pudo deportar porque "the
necessary arrangements for his deportation could obviously not be made." (District
Court of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion provisional
de William Martin Jurgans duro mas de seis años; la de Mejoff no ha sido mas que
de 31 meses, y no porque el gobierno no quiere deportarle, sino porque no hay
medio disponible para realizarlo.

En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:

What constitutes a reasonable time for the detention of the petitioner in

custody for deportation depends upon the facts and circumstances of
particular cases. This court cannot shut its eyes to the vitally important
interests of this country at this time with respect to the bottleneck of shipping,
when every available ship, domestic and foreign, must be utilized to the
utmost without delay consequent upon the lack of avilable seamen. Under
these present conditions the court should be liberal indeed in aiding the
executive branch of the govenment in the strict enforcement of laws so vitally
necessary in the common defns. There is sound authority for this view in
United States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97, where
Circuit Judge Lacombe refused to release an alien who had come here from
Germany and was ordered deported in 1915 when, by reason of the then
existing war between Germany and England, his deportation to Germany was
not possible. It was said:

At the present time there is no regular passenger ocean service to German

ports, so the authorities are unable to forward him, and are holding him until
some opportunity of returning him to Germany may present itself. His
continual detention is unfortunate, but certainly is not illegal. His present
condition can be alleviated only by the action of the executive branch of the
government. A federal court would not be justified in discharging him. . . .

If he is not really fit for sea service, it is not probable that he would be forced
into it, although he may be able to serve his government in some other
capacity. But however that may be, while this country has no power under
existing legislation to impress him into sea service against his will, he has no
just cause to be relieved from the strict enforcement of our deportation laws,
and to remain at liberty in this country as a sanctuary contrary to our laws.

No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias

anormales.

La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte

para su deportacion, supon un gasto innecesario.

Footnotes

<sup*< sup="">84 Phil., 218.</sup*<>

EN BANC

G.R. No. L-4253 October 31, 1951

CHARLES K. ANDREU, petitioner,

vs.
COMMISSIONER OF IMMIGRATION and DIRECTOR OF PRISONS, respondents.
Roberto Dollete for petitioner.
First Assistant Solicitor General Roberto Gianzon and Solicitor Florencio Villamor for
respondents.

PADILLA, J.:

Charles K. Andreu applies for a writ of habeas corpus.

Petitioner claims under oath that he is a stateless and was born in Latvia; that since
17 April 1940 he has resided in Manila, conducted himself in an irreproachable
manner, been engaged in the practice of his profession as architect and contractor,
and has never been charged with and convicted of any crime; that on 24 June 1946,
he was arrested by the order of the Commissioner of Immigration; that without
previous hearing he was ordered deported on 18 December 1946; that from 16 May
to 2 June 1947 he was shipped to Shanghai but was refused admission there
because he was not a Chinese citizen; that upon his return to this country he was
detained at the Immigrant Station; that on 9 December 1947, he was released
provisionally by authority of the Secretary of Justice and resumed the practice of his
profession as architect and contractor; that on 20 March 1948, he was again
apprehended and flown to Cebu to be deported aboard any of the two Russian
vessels lying at the anchor in Cebu but the masters of the Russian ships refused his
being placed aboard their ships; that since than he has been detained and confined;
that he applied to this Court for a writ of habeas corpus (G.R. No. L-2838) but his
petition was denied on 16 September 1949; that from that date to the date of the
filing of the petition he has been deprived of his liberty for 13 months and from 24
June 1946, for 46 months. Upon this claim he prays that the writ applied for issue
and that after hearing the writ prayed for be granted.

The return of the writ denies that the petitioner is a stateless and was born in Latvia;
that the Commissioner of Immigration seemingly will fail to carry out the deportation
of the petitioner, he not being a subject of any foreign power; that for that reason his
detention will be endless and without due process of law. The respondents deny any
knowledge or information sufficient to form a belief that the petitioner has resided in
Manila, conducted himself in an irreproachable manner, been engaged in the
practice of his profession, and has never been charged with and convicted of any
crime; that he was not investigated nor he was informed of the charges against him;
that after his release provisionally by the President he resumed the practice of his
profession; and that as a result of his confinement he lost all his property and has
become destitute. They admit that on 24 June 1946 the petitioner was arrested; that
on 18 December 1946, a warrant of deportation as an undesirable alien was issued;
that he was deported in Shanghai but refused admission not on the ground that he
was not a Chinese citizen but for lack of proper visa; that upon return to this country
he was detained at the Immigrant Station; that he was granted a provisional release
not by the Secretary of Justice as claimed by him but by the President of the
Philippines; that on 20 March 1948, he was again arrested and flown to Cebu for the
purpose of deporting him but the captains of the Russian steamers refused to allow
him to board their ships not because he was not a Russian citizen as claimed by him
but for lack of permission of the Russian Government to take him aboard their ships;
that since then he has been detained; that he filed a petition for a writ of habeas
corpus which was denied on 16 September 1949; that he has been detained for
deportation for 13 months since denial of the first petition for a writ of habeas
corpus and for 46 months since he was arrested on 24 June 1946.

It is further stated in the return that the petitioner was investigated upon charges that
he was an undesirable alien having gained entry into the country by fraudulent
means, engaged in espionage and failed to register as such alien in violation of
Com. Act No. 653; that he was a habitual drunkard, without visible means of support
and lawful employment; that after investigation the Deportation Board recommended
his deportation to the President of the Philippines "for being an undesirable alien
whose conduct and mode of life render his presence in the Philippines inimical and
dangerous to public interest;" that the President finding the recommendation well
founded ordered the deportation of the petitioner; that for the best interest of the
country's national security the petitioner's detention is advisable and necessary while
arrangements for his deportation are being made; and that the question raised by
the petitioner has already been adjudged in the previous petitioner's application for
the same writ.

We do not have before us the proceedings held in the Deportation Board to enable
us to determine whether the espionage activities with which the petitioner was
charged fall under the terms of the Proclamation issued by the President on 22
October 1950 which suspended the privilege of the writ of habeas corpus. Not
having such proceedings before us, we may reasonably presume that such activities
with which the petitioner was charged and upon which, after hearing, the Deportation
Board partly relied to make its recommendation to the President of the Philippines,
do not come under the aforesaid Proclamation, for if such activities fall under it, the
Solicitor General would not have failed to allege such fact in the return he made to
the writ, the petition in this case having been filed on 30 October and the return of
the writ by the Solicitor General on 14 November 1950, or subsequent to the
issuance and promulgation of the Proclamation.

Such being the case, we feel bound by the rule laid down in three similar cases, to
wit: Mejoff vs. the Director of Prisons, supra, p. 70; Borovsky vs. The Commissioner
of Immigration and the Director of Prisons, supra, p. 107; Chirskoff vs.
Commissioner of Immigration and Director of Prisons, supra, p. 256. It would serve
no useful purpose to restate the reasons for the rule laid down in those cases which
are incorporated herein. Adhering to our opinion in said cases we order that the writ
issues directing the respondents to release the petitioner from custody under the
following terms and conditions: The petitioner shall be placed under the surveillance
of the immigration authorities or their agents in such form and manner as may be
deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him. The surveillance shall be reasonable a the
question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the
above purpose in the amount of P5,000 with sufficient surety or sureties, which bond
the Commissioner of Immigration is authorized to require by Section 40 of
Commonwealth Act No. 613. No costs will be taxed.

Paras, C.J., Feria, Bengzon, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.

Separate Opinions

PABLO, J., dissenting:

Disiento por las mismas razones que expuse en mis disidencias en las causas Nos.
L-4352, Borovsky contra El Comisionado de Inmigracion y otro, Septiembre 28,
1951, y L-4254, Mejoff contra El Director de Prisiones, Septiembre 26, 1951.

EN BANC

G.R. No. L-22744 March 31, 1966

LAM YIN alias LIM YIN, petitioner-appellee,
vs.
COMMISSIONER OF IMMIGRATION, respondent-appellant.

Office of the Solicitor General for the respondent-appellant.

Aruego, Mamaril and Associates for the petitioner-appellee.

BENGZON, J.P., J.:

Appeal in a proceeding for habeas corpus.

Stating in its judgment rendered on April 11, 1964 that it sustained the argument of
the Solicitor General in opposing the issuance of the writ, the court a
quo nonetheless therein ordered that petitioner be released upon posting of bond,
"to avoid the commission of injustice and for the sake of humanitarian consideration,
because she had been detained too long."

In this appeal the Solicitor General contends that petitioner's detention by the
Bureau of Immigration is legal. This Court has issued preliminary injunction to enjoin,
for the meantime, the enforcement of the court a quo's release orders.

According to stipulation by the parties the facts are as follows:

Petitioner, of legal age, Chinese, is detained by the Bureau of Immigration at

Engineer Island but temporarily confined at the Philippine Chinese General Hospital,
for a serious illness, under security guards of the aforesaid Bureau of Immigration.1

She was admitted into the Philippines on May 3, 1953 as a transient from Sandakan,
Borneo and bound for Hongkong. She stayed beyond the period allowed her.

For overstaying in the Philippines she was — after proper deportation

proceedings — ordered deported by the Commissioner of Immigration on August 6,
1955. She was however allowed temporary release upon posting of surety and cash
bonds.

After August 16, 1963 petitioner was arrested and detained by the Commissioner of
Immigration until December 27, 1963. At the latter date, she was again released
under bond, subject to the condition that she will leave the country on or before
January 2, 1964.

For not leaving the country within the time above-stated, petitioner was rearrested
on January 29, 1964 and thereafter detained. She then filed the petition in this case
for habeas corpus in the Court of First Instance of Manila on March 11, 1964.

It is also stipulated that other than the fact that her permission to stay in the
Philippines has expired, petitioner is not and has never been charged of any offense
against the Philippine Government or any citizen; that nine (9) years have elapsed
since the order of her deportation was issued and the Government has not yet
deported her; that she has asked the Commissioner of Immigration to release her
from detention, but the same was not granted; and that negotiations are being
conducted between the Philippine Government and the Nationalist Government of
China for the return of the so-called over-staying Chinese to which the petitioner
belongs. 1äwphï1.ñët

From the stipulated facts abovementioned it follows that petitioner's further stay in
the Philippines is illegal and that the Government has the right to deport her. As an
incident of the right to deport, the Government, through the Commissioner of
Immigration, has the right to detain the alien to be deported pending the deportation.
Said right to detain, per se, is not questioned herein. Petitioner however contends
that her detention has been unreasonably too long so that she is entitled to be
charged by writ of habeas corpus.

It is true that too long a detention of an alien pending the carrying out of a
deportation order may justify the issuance of a writ of habeas corpus under particular
circumstances (Borovsky v. Commissioner of Immigration, 84 Phil. 161). The
question of what is a reasonable time in this regard, also varies with the
circumstances of every case (Ross v. Wallis, 279 F. 402).

In the present case, the detention complained of started on January 29, 1964. At the
time the petition was filed in the court a quo on March 11, 1964 less than two
months of said detention had taken place. Said length of time does not strike this
Court as unreasonably too long a detention preparatory to deportation.

Now, even taking into account the fact that the detention has continued up to the
present, that is, for about two years, the same is not illegal considering the reason
for the delay. As the parties stipulated, petitioner is a Chinese national and
negotiations are being conducted between the Philippine Government and the
Nationalist Government of China for the return of the so-called over-staying Chinese
to which petitioner belongs.

Accordingly, it is in point to state here what this Court said thru Mr. Justice Barrera
in Tan Seng Pao v. Commissioner of Immigration, L-14246, April 2, 1960:

Respondent finally contends that the lower court erred in granting petitioner
the writ of habeas corpus, on the main ground that he had been under
detention by the immigration authorities for eight (8) years since he was
ordered deported, without said order having been carried out. The lower court
considered said long continued detention of petitioner as unreasonable, citing
the cases of Mejoff vs. Director of Prisons (G.R. No. L-4252, prom.
September 26, 1951); Borovsky vs. Commissioner of Immigration, et al. (G.R.
No. L-4352, prom. September 28, 1951); Chirskoff vs. Commissioner of
Immigration, et al. (G.R. No. L-3802, prom. October 26, 1951); and Andreau
vs. Commissioner of Immigration, et al. (G.R. No. L-4253, prom. October 31,
1951), wherein this Court granted the writ of habeas corpus to petitioners in
said cases, as they had been under detention by the Immigration authorities
from 2 to 4 years, while awaiting deportation.

It is to be noted, however, that this Court was constrained to grant the release
of petitioners in said cases, because there was no ship or country which
would take them. Petitioners therein were stateless Russians who have no
country to which they may be deported or which would be willing to accept
them. In the instant case, petitioner is a Chinese citizen and not a stateless
alien, and has a known country, Formosa (from whence he came), to which
he may be removed. If there is any delay in the shipment of petitioner from
this country, it is not due to the fault or negligence of the Government or of its
officers. If diplomatic negotiations which have been pursued relentlessly by
our Government have not yielded tangible results leading to the immediate or
early removal of petitioner and other aliens similarly situated, the delay should
not be considered a ground for declaring the order of deportation functus
oficio. Otherwise, it would be within the power of the countries of undesirable
aliens ordered deported from this country to render ineffective or
unenforceable warrants of deportation, by simply frustrating all diplomatic
efforts aimed at their removal from this country.
 In conclusion, we hold and declare that, as long as the continued detention of
a deportee is not attributable to the fault or negligence of the Government or
of its officers, and his deportation is not rendered impossible by his citizenship
status by reason of which no country or ship will accept him, warrant for his
deportation should stand in all its force and vigor rather than be
declared functus oficio.

It not being the fault of the Philippine Government or its officers that petitioner is not
as yet deported to her own country, her continued detention preparatory to
deportation is legal. It follows that the writ prayed for cannot be granted "for the sake
of humanitarian considerations." And besides petitioner had sufficiently been
accorded "humanitarian considerations." For two times, the records show, she was
released on the strength of assurances that she was going to leave the country. It is
true the deportation order had been issued nine years before she filed her petition
for habeas corpus. It is however equally true that for eight years of those nine years
from 1955 to 1963, she was released under surety and cash bonds, during which
time she had all the chance to live up to her original commitment of proceeding to
Hongkong, which was why she was allowed to enter the Philippines as a transient in
the first place. As it happened, she succeeded in staying in the
Philippines, undetained, for eight years. For this Court now to sanction her release to
resume such illegal stay would be to open door to entry and indefinite stay of aliens
to this country under the pretext of being transient entrants, and thereby leaving the
country permanently exposed to undesirable elements from abroad to the detriment
of its peace, security and order. Such a situation is far from what this Court can
sanction under the law.

Wherefore, petitioner's motion for release on bail pending the decision of this case is
denied and the judgment appealed from is reversed. Petition for habeas corpus is
denied. Costs against petitioner. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala,

Makalintal, Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

Footnotes

1Said confinement was from 28 January 1964 to 12 August 1964; she is now
back at Engineer Island. (See Petition for Temporary Release dated October
4, 1965, p. 6 of Rollo and Certificate, p. 70 of Rollo).