Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs, vs. THE PROVINCIAL BOARD OF MINDORO, defendant. D. R. Williams & Filemon Sotto for plaintiff. Office of the Solicitor-General Paredes for defendant. MALCOLM, J.: In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight change in phraseology, can be made to introduce the present opinion This cause, in every point of view in which it can be placed, is of the deepest interest. The legislative power of state, the controlling power of the constitution and laws, the rights if they have any, the political existence of a people, the personal liberty of a citizen, are all involved in the subject now to be considered. To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts and the issues, next to give a history of the so called "non-Christians," next to compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve the constitutional questions presented. I. INTRODUCTION. This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away form the reservation. The return of the Solicitor-General alleges: 1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows: The provincial governor, Hon. Juan Morente, Jr., presented the following resolution: "Whereas several attempts and schemes have been made for the advancement of the nonChristian people of Mindoro, which were all a failure, "Whereas it has been found out and proved that unless some other measure is taken for the Mangyan work of this province, no successful result will be obtained toward educating these people. "Whereas it is deemed necessary to obliged them to live in one place in order to make a permanent settlement,

"Whereas the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. "Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it "Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and "Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said homestead applications are previously recommended by the provincial governor." 2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the Secretary of the Interior of February 21, 1917. 3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2 which says: "Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro. "Whereas said resolution has been duly approve by the Honorable, the Secretary of the Interior, on February 21, 1917. "Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the provisions of section 2145 of the revised Administrative Code, do hereby direct that all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917. "Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceed in sixty days, in accordance with section 2759 of the revised Administrative Code." 4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the governor of the same province copied in paragraph 3, were necessary measures for the protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among them. 5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act No. 2711. 6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711. It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor and approved by the provincial board. The action was taken in accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this section of the Administrative Code. This, therefore, becomes the paramount question which the court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows: SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him an approved by the provincial board. In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which read as follows: SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any non-Christian who shall refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall upon conviction be imprisonment for a period not exceeding sixty days. The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical tree of this section, if we may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No. 387. Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category, and in order to understand the policy of the Government of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set down a skeleton history of the attitude assumed by the authorities towards these "non-Christians," with particular regard for the legislation on the subject. II. HISTORY. A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES. The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III, in the following language. LAW I. The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20, 1578, THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES). In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order that they may forget the blunders of their ancient rites and ceremonies to the end that they may live in harmony and in a civilized manner, it has always been endeavored, with great care and special attention, to use all the means most convenient to the attainment of these purposes. To carry out this work with success, our Council of the Indies and other religious persons met at various times; the prelates of new Spain assembled by order of Emperor Charles V of glorious memory in the year one thousand five hundred and forty-six all of which meetings were actuated with a desire to serve God an our Kingdom. At these meetings it was resolved that indios be made to live in communities, and not to live in places divided and separated from one another by sierras and mountains, wherein they are deprived of all spiritual and temporal benefits and wherein they cannot profit from the aid of our ministers and from that which gives rise to those human necessities which men are obliged to give one another. Having realized that

convenience of this resolution, our kings, our predecessors, by different orders, have entrusted and ordered the viceroys, presidents, and governors to execute with great care and moderation the concentration of the indios intoreducciones; and to deal with their doctrine with such forbearance and gentleness, without causing inconveniences, so that those who would not presently settle and who would see the good treatment and the protection of those already in settlements would, of their own accord, present themselves, and it is ordained that they be not required to pay taxes more than what is ordered. Because the above has been executed in the greater part of our Indies, we hereby order and decree that the same be complied with in all the remaining parts of the Indies, and the encomederos shall entreat compliance thereof in the manner and form prescribed by the laws of this title. xxx xxx xxx

LAW VIII. Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618. THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW. The places wherein the pueblos and reducciones shall be formed should have the facilities of waters. lands, and mountains, ingress and egress, husbandry and passageway of one league long, wherein the indios can have their live stock that they may not be mixed with those of the Spaniards. LAW IX. Philip II at Toledo, on February 19, 1956. THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM. With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall not be deprived of the lands and granaries which they may have in the places left by them. We hereby order that no change shall be made in this respect, and that they be allowed to retain the lands held by them previously so that they may cultivate them and profit therefrom. xxx xxx xxx

LAW XIII. THE SAME AS ABOVE. THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT. No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove thepueblos or the reducciones once constituted and founded, without our express order or that of the viceroy, president, or the royal district court, provided, however, that the encomenderos, priests, or indios request such a change or consent to it by offering or giving information to that en. And, because these claims are often made for private interests and not for those of the indios, we hereby order that this law be always complied with, otherwise the change will be considered fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the judge or encomendero who should violate this law. LAW XV.

Philip III at Madrid, on October 10, 1618. THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS." We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion; if there be more than eighty houses, there should be two mayors and two aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more than two mayors and four aldermen, If there be less than eighty indios but not less than forty, there should be not more than one mayor and one alderman, who should annually elect nine others, in the presence of the priests , as is the practice in town inhabited by Spaniards and indios. LAW XXI. Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7. THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES. We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in the reduccionesand towns and towns of the indios, because it has been found that some Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the wrongs done them, the indios would leave their towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad customs, idleness, and also some of their blunders and vices which may corrupt and pervert the goal which we desire to reach with regard to their salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon the commission of the acts above-mentioned which should not be tolerated in the towns, and that the viceroys, presidents, governors, and courts take great care in executing the law within their powers and avail themselves of the cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are children of indias and born among them, and who are to inherit their houses andhaciendas, they all not be affected by this law, it appearing to be a harsh thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.) A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as follows: It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral part of a nation should respect and obey the laws in force therein; while, on other hand, it is the duty to conscience and to humanity for all governments to civilize those backward races that might exist in the nation, and which living in the obscurity of ignorance, lack of all the nations which enable them to grasp the moral and material advantages that may be acquired in those towns under the protection and vigilance afforded them by the same laws. It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the non-Christian races from the social life of the civilized and Christian towns; to allow any longer the commission of depredations, precisely in the Island of Luzon wherein is located the seat of the representative of the Government of the, metropolis. It is but just to admit the fact that all the governments have occupied themselves with this most important question, and that much has been heretofore accomplished with the help and self-denial of the missionary fathers who have even sacrificed their lives to the end that those degenerate races might be brought to the principles of Christianity, but the means and the preaching employed to

allure them have been insufficient to complete the work undertaken. Neither have the punishments imposed been sufficient in certain cases and in those which have not been guarded against, thus giving and customs of isolation. As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the prestige which the country demands and the inevitable duty which every government has in enforcing respect and obedience to the national laws on the part of all who reside within the territory under its control, I have proceeded in the premises by giving the most careful study of this serious question which involves important interests for civilization, from the moral and material as well as the political standpoints. After hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after finding the unanimous conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held for the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding in a practical manner for the submission of the said pagan and isolated races, as well as of the manner and the only form of accomplishing such a task. For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the following: DECREE. 1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by the common law, save those exceptions prescribed in this decree which are bases upon the differences of instructions, of the customs, and of the necessities of the different pagan races which occupy a part of its territory. 2. The diverse rules which should be promulgated for each of these races which may be divided into three classes; one, which comprises those which live isolated and roaming about without forming a town nor a home; another, made up of those subdued pagans who have not as yet entered completely the social life; and the third, of those mountain and rebellious pagans shall be published in their respective dialects, and the officials, priests, and missionaries of the provinces wherein they are found are hereby entrusted in the work of having these races learn these rules. These rules shall have executive character, beginning with the first day of next April, and, as to their compliance, they must be observed in the manner prescribed below. 3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means which their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or settlement already subdued, and shall adopt the necessary regulations for the appointment of local authorities, if there be none as yet; for the construction of courts and schools, and for the opening or fixing up of means of communication, endeavoring, as regards the administrative organization of the said towns or settlements, that this be finished before the first day of next July, so that at the beginning of the fiscal year they shall have the same rights and obligations which affect the remaining towns of the archipelago, with the only exception that in the first two years they shall not be obliged to render personal services other than those previously indicated. 4. So long as these subdued towns or settlements are located infertile lands appropriate for cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and only in case of absolute necessity shall a new residence be fixed for them, choosing for this purpose the place most convenient for them and which prejudices the least their interest; and, in either of these cases, an effort must be made to establish their homes with the reach of the sound of the bell.

5. For the protection and defense of these new towns, there shall be established an armed force composed precisely of native Christian, the organization and service of which shall be determined in a regulations based upon that of the abolished Tercios de Policia (division of the Guardia Civil). 6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties affecting them and the liberty which they have as to where and now they shall till their lands and sell the products thereof, with the only exception of the tobacco which shall be bought by the Hacienda at the same price and conditions allowed other producers, and with the prohibition against these new towns as well as the others from engaging in commerce of any other transaction with the rebellious indios, the violation of which shall be punished with deportation. 7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indiosshall be fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally wherever convenient. 8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all by this fact along be exempt for eight years from rendering personal labor. 9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountains igorrots the following advantages in returns for their voluntary submission: to live in towns; unity among their families; concession of good lands and the right to cultivate them in the manner they wish and in the way them deem most productive; support during a year, and clothes upon effecting submission; respect for their habits and customs in so far as the same are not opposed to natural law; freedom to decide of their own accord as to whether they want to be Christians or not; the establishment of missions and families of recognized honesty who shall teach, direct, protect, and give them security and trust them; the purchase or facility of the sale of their harvests; the exemption from contributions and tributes for ten years and from thequintas (a kind of tax) for twenty years; and lastly, that those who are governed by the local authorities as the ones who elect such officials under the direct charge of the authorities of the province or district. 10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in return, have the obligation of constituting their new towns, of constructing their town hall, schools, and country roads which place them in communication with one another and with the Christians; provided, the location of these towns be distant from their actual residences, when the latter do not have the good conditions of location and cultivations, and provided further the putting of families in a place so selected by them be authorized in the towns already constituted. 11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the peace, protection, and advantages offered them, continue in their rebellious attitude on the first of next April, committing from now on the crimes and vexations against the Christian towns; and for the this purposes, the Captain General's Office shall proceed with the organization of the divisions of the Army which, in conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy their dwelling-houses, labors, and implements, and confiscate their products and cattle. Such a punishment shall necessarily be repeated twice a year, and for this purpose the military headquarters shall immediately order a detachment of the military staff to study the zones where such operations shall take place and everything conducive to the successful accomplishment of the same. 12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to my authorities, local authorities, and other subordinates to may authority, civil as well as military authorities, shall give the most effective aid and cooperation to the said forces in all that is within the attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of the Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them. 14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or permanent commission which shall attend to and decide all the questions relative to the application of the foregoing regulations that may be brought to it for consultations by the chiefs of provinces and priests and missionaries. 15. The secondary provisions which may be necessary, as a complement to the foregoing, in brining about due compliance with this decree, shall be promulgated by the respective official centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.) B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES. Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for dealing with the primitive inhabitants has been a perplexing one. 1. Organic law. The first order of an organic character after the inauguration of the American Government in the Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent congressional legislation. One paragraph of particular interest should here be quoted, namely: In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government and under which many of these tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal governments should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs. Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name the prerequisites for the organization of the Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes. The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The GovernorGeneral of the Philippine Islands was authorized to appoint senators and representatives for the territory which, at the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general supervision over the public affairs of the inhabitants which are represented in the Legislature by appointed senators and representatives( sec. 22). Philippine organic law may, therefore, be said to recognized a dividing line between the territory not inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-Christian tribes, and the territory which is inhabited by Moros or other non-Christian tribes.

2. Statute law. Local governments in the Philippines have been provided for by various acts of the Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried forward into the Administrative Codes of 1916 an d1917. Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No. 547: No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO. By authority of the United States, be it enacted by the Philippine Commission, that: SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government, the provincial governor is authorized, subject to the approval of the Secretary of the Interior, in dealing with these Manguianes to appoint officers from among them, to fix their designations and badges of office, and to prescribe their powers and duties: Provided, That the powers and duties thus prescribed shall not be in excess of those conferred upon township officers by Act Numbered Three hundred and eighty-seven entitled "An Act providing for the establishment of local civil Governments in the townships and settlements of Nueva Vizcaya." SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized, when he deems such a course necessary in the interest of law and order, to direct such Manguianes to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. Manguianes who refuse to comply with such directions shall upon conviction be imprisonment for a period not exceeding sixty days. SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the knowledge and experience necessary for successful local popular government, and his supervision and control over them shall be exercised to this end, an to the end that law and order and individual freedom shall be maintained. SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced sufficiently to make such a course practicable, it may be organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the geographical limits of such township shall be fixed by the provincial board. SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby expedited in accordance with section two of 'An Act prescribing the order of procedure by the Commission in the enactment of laws,' passed September twenty-sixth, nineteen hundred. SEC. 6. This Act shall take effect on its passage. Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes retained the provisions in questions. These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and consistent practice with reference to the methods to be followed for their advancement. C. TERMINOLOGY. The terms made use of by these laws, organic and statutory, are found in varying forms. "Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission. The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be found in Act No. 253 of the Philippines Commission, establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551. "Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission. The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.) D. MEANING OF TERM "NON-CHRISTIAN." If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it a religious signification. Obviously, Christian would be those who profess the Christian religion, and non-Christians, would be those who do not profess the Christian religion. In partial corroboration of this view, there could also be cited section 2576 of the last Administrative Code and certain well-known authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.) Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning. In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes. Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of this article, preceding section 2145, makes the provisions of the article applicable only in specially organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya,

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Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has never seen fit to give all the powers of local self-government. They do not, however, exactly coincide with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still a geographical description. It is well-known that within the specially organized provinces, there live persons some of who are Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.) If the religious conception is not satisfactory, so against the geographical conception is likewise inadquate. The reason it that the motive of the law relates not to a particular people, because of their religion, or to a particular province because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of the inhabitants. At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United States as to the future political status of the Philippine Islands and to provide a more autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.) The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to legislative, judicial, and executive authority. The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-Christian tribes . . . with special view to determining the most practicable means for bringing about their advancement in civilization and material property prosperity." As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal marriage in connection with article 423 of the Penal code concerning the husband who surprises his wife in the act of adultery. In discussing the point, the court makes use of the following language: . . . we are not advised of any provision of law which recognizes as legal a tribal marriage of socalled non-Christians or members of uncivilized tribes, celebrated within that province without compliance with the requisites prescribed by General Orders no. 68. . . . We hold also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, should be taken into consideration as a second marked extenuating circumstance. Of much more moment is the uniform construction of execution officials who have been called upon to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating to the so-called Christians and who had these people under his authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official addressed a letter to all governor of provinces, organized under the Special Provincial Government Act, a letter which later received recognition by the Governor-General and was circulated by the Executive Secretary, reading as follows: Sir: Within the past few months, the question has arisen as to whether people who were originally non-Christian but have recently been baptized or who are children of persons who have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered Christian or nonChristians.

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It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far in civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is so great that it is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt the designation 'non-Christians' as the one most satisfactory, but the real purpose of the Commission was not so much to legislate for people having any particular religious belief as for those lacking sufficient advancement so that they could, to their own advantage, be brought under the Provincial Government Act and the Municipal Code. The mere act of baptism does not, of course, in itself change the degree of civilization to which the person baptized has attained at the time the act of baptism is performed. For practical purposes, therefore, you will give the member of so-called "wild tribes" of your province the benefit of the doubt even though they may recently have embraced Christianity. The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of regularly organized municipalities or what form of government shall be afforded to them should be the degree of civilization to which they have attained and you are requested to govern yourself accordingly. I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above expressed and who will have the necessary instructions given to the governors of the provinces organized under the Provincial Government Act. (Internal Revenue Manual, p. 214.) The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on the subject: As far as names are concerned the classification is indeed unfortunate, but while no other better classification has as yet been made the present classification should be allowed to stand . . . I believe the term carries the same meaning as the expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of civilization rather than of religious denomination, for the hold that it is indicative of religious denomination will make the law invalid as against that Constitutional guaranty of religious freedom. Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point, who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214): The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean not that persons who profess some form of Christian worship are alone subject to the cedula tax, and that all other person are exempt; he has interpreted it to mean that all persons preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long as they live in cities or towns, or in the country in a civilized condition. In other words, it is not so much a matter of a man's form of religious worship or profession that decides whether or not he is subject to the cedula tax; it is more dependent on whether he is living in a civilized manner or is associated with the mountain tribes, either as a member thereof or as a recruit. So far, this question has not come up as to whether a Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a condition similar to that which exist in Manila also exists in most of the large provincial towns. Cedula taxes are therefore

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being collected by this Office in all parts of these Islands on the broad ground that civilized people are subject to such taxes, and non-civilized people preserving their tribal relations are not subject thereto. (Sgd.) JNO. S. HORD, Collector of Internal Revenue. On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads: In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due from members of non-Christian tribes when they come in from the hills for the purposes of settling down and becoming members of the body politic of the Philippine Islands, the following clarification of the laws governing such questions and digest of rulings thereunder is hereby published for the information of all concerned: Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not profess Christianity, but because of their uncivilized mode of life and low state of development. All inhabitants of the Philippine Islands classed as members of non-Christian tribes may be divided into three classes in so far as the cedula tax law is concerned . . . Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life, severs whatever tribal relations he may have had and attaches himself civilized community, belonging a member of the body politic, he thereby makes himself subject to precisely the same law that governs the other members of that community and from and after the date when he so attaches himself to the community the same cedula and other taxes are due from him as from other members thereof. If he comes in after the expiration of the delinquency period the same rule should apply to him as to persons arriving from foreign countries or reaching the age of eighteen subsequent to the expiration of such period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished him without penalty and without requiring him to pay the tax for former years. In conclusion, it should be borne in mind that the prime factors in determining whether or not a man is subject to the regular cedula tax is not the circumstance that he does or does not profess Christianity, nor even his maintenance of or failure to maintain tribal relations with some of the well known wild tribes, but his mode of life, degree of advancement in civilization and connection or lack of connection with some civilized community. For this reason so called "Remontados" and "Montescos" will be classed by this office as members of non-Christian tribes in so far as the application of the Internal Revenue Law is concerned, since, even though they belong to no well recognized tribe, their mode of life, degree of advancement and so forth are practically the same as those of the Igorrots and members of other recognized non-Christina tribes. Very respectfully, (Sgd.) ELLIS CROMWELL, Collector of Internal Revenue, Approved: (Sgd.) GREGORIO ARANETA, Secretary of Finance and Justice. The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327.

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The subject has come before the Attorney-General for consideration. The Chief of Constabulary request the opinion of the Attorney-General as to the status of a non-Christian who has been baptized by a minister of the Gospel. The precise questions were these: "Does he remain non-Christian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an infraction of the law and does the person selling same lay himself liable under the provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same authorities hereinbefore set out, concludes: In conformity with the above quoted constructions, it is probable that is probable that the person in question remains a non-Christian, so that, in purchasing intoxicating liquors both he and the person selling the same make themselves liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these should be the constructions place upon the law until a court shall hold otherwise. Solicitor-General Paredes in his brief in this case says: With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the Administrative code which we are studying, we submit that said phrase does not have its natural meaning which would include all non-Christian inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of the non-Christian tribes of the Philippines who, living without home or fixed residence, roam in the mountains, beyond the reach of law and order . . . The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which live in tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and civilized life, did not intended to establish a distinction based on the religious beliefs of the individual, but, without dwelling on the difficulties which later would be occasioned by the phrase, adopted the expression which the Spanish legislation employed to designate the uncivilized portion of the inhabitants of the Philippines. The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of uncivilized tribes of the Philippines, not only because this is the evident intention of the law, but because to give it its lateral meaning would make the law null and unconstitutional as making distinctions base the religion of the individual. The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-division under the title non-Christian tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to religion. In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart from settled communities. E. THE MANGUIANES. The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro. Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de Rozas de Filipinas, says:

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In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It may be that the use of this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive times without doubt this name was given to those of that island who bear it to-day, but its employed in three Filipino languages shows that the radical ngian had in all these languages a sense to-day forgotten. In Pampango this ending still exists and signifies "ancient," from which we can deduce that the name was applied to men considered to be the ancient inhabitants, and that these men were pushed back into the interior by the modern invaders, in whose language they were called the "ancients." The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic people. They number approximately 15,000. The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.) III. COMPARATIVE THE AMERICAN INDIANS. Reference was made in the Presidents' instructions to the Commission to the policy adopted by the United States for the Indian Tribes. The methods followed by the Government of the Philippines Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States. Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the Act, the opinion goes on "This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists." A leading case which discusses the status of the Indians is that of the United States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution which gives Congress "power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position of the Indians in the United States (a more extended account of which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as follows: The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States, has always been an anomalous one and of a complex character. Following the policy of the European Governments in the discovery of American towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its lands, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relation

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are equally difficult to define. They were, and always have been, regarded as having a semiindependent position when they preserved their tribal relations; not as States, not as nation not a possessed of the fall attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. The opinion then continues: It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the wards of the nation. The are communities dependent on the United States. dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from the no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arise the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen . . . The power of the General Government over these remnants of race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. it must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood. The court looked to the reports of the different superintendent charged with guarding their interests and founds that these Indians are dependent upon the fostering care and protection of the government "like reservation Indians in general." Continuing, the court said "that during the Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection, where subjected to restraints and official supervisions in the alienation of their property." And finally, we not the following: "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indians tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state." With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S.vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomasvs. Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize such measures as may be necessary to give to the Indians thereon full protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.) All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions. The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance

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that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place within the limits of the Indian Territory had departed therefrom without permission from the Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian Territory. The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question, of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the reservations without lawful authority . . . Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld." The decision concluded as follows: The reasoning advanced in support of my views, leads me to conclude: 1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States or where he is restrained of liberty in violation of the constitution or laws of the United States. 2. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws therefore. 3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do. 4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on forbidden ground. And, 5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered. As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of theHabeas Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide. As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservation, without any previous consultation as to their own wishes, and that, when once so located, they have been

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made to remain on the reservation for their own good and for the general good of the country. If any lesson can be drawn form the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for the segregation of the different Indian tribes in the United States. IV. CONSTITUTIONAL QUESTIONS. A. DELEGATION OF LEGISLATIVE POWER. The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full responsibility. That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we agree. An understanding of the rule will, however, disclose that it has not bee violated in his instance. The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of case, namely: "The true distinction therefore is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments of subordinate official thereof, to whom t has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence to the "necessity" of the case. Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the provincial board and the Department Head, discretionary authority as to the execution of the law? Is not this "necessary"? The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out to the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the long established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian Department." (See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.) There is another aspect of the question, which once accepted, is decisive. An exception to the general rule. sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the provincial board. Who but the provincial governor and the provincial board, as the official representatives of the province, are better qualified to judge "when such as course is deemed necessary in the interest of law and order?"

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As officials charged with the administration of the province and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most favorable for improving the people who have the misfortune of being in a backward state? Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature to provincial official and a department head. B. RELIGIOUS DISCRIMINATION The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as language can express, it provides for the segregation of 'non-Christians' and none other." The inevitable result, them, is that the law "constitutes an attempt by the Legislature to discriminate between individuals because of their religious beliefs, and is, consequently, unconstitutional." Counsel's premise once being conceded, his arguments is answerable the Legislature must be understood to mean what it has plainly expressed; judicial construction is then excluded; religious equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued meaning given to a common expression, especially as classification of inhabitants according to religious belief leads the court to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the Administrative Code of 1917, does not discriminate between individuals an account of religious differences. C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS. The third constitutional argument is grounded on those portions of the President's instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution and these provisions, it has been said "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick Wo vs.Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is then as much for the non-Christian as for the Christian. The conception of civil liberty has been variously expressed thus: Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.) Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . that man is free who is protected from injury. (II Webster's Works, p. 393.) Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought not do desire. (Montesque, spirit of the Laws.) Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.)

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Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere with which the individual may asserts the supremacy of his own will, and rightfully dispute the authority of any human government especially of any free government existing under a written Constitution to interfere with the exercise of that will. But it is equally true that in very well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.) Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual. (Apolinario Mabini.) Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array of authorities including epoch-making decisions of the United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's employment, the right to labor, and the right of locomotion. In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.) One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. (See Hall vs. GeigerJones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs.Cruz [1914], 189 Al., 66.) None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of "due process of law" is, that "every citizen shall hold his life, liberty, property, an immunities under the protection of the general rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly

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devised in the discretion of the legislative power, in furtherance of the public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subjectmatter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.) The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature. We break off with the foregoing statement, leaving the logical deductions to be made later on. D. SLAVERY AND INVOLUNTARY SERVITUDE. The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.) So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come a description of the police power under which the State must act if section 2145 is to be held valid. E. THE POLICE POWER. Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the farreaching scope of the power, that it has become almost possible to limit its weep, and that among its purposes is the power to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the government to restrain liberty by the exercise of the police power. "The police power of the State," one court has said, . . . "is a power coextensive with self-protection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. "There can be not doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamental principles which lie at the

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foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.) With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any constitutional provision has indeed been violated by section 2145 of the Administrative Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If legally possible, such legislative intention should be effectuated. F. LEGISLATIVE INTENT. The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure of former attempts for the advancement of the non-Christian people of the province; and (2) the only successfully method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes. The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following: To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found that the site selected is a good one; that creditable progress has been made in the clearing of forests, construction of buildings, etc., that there appears to be encouraging reaction by the boys to the work of the school the requirements of which they appear to meet with enthusiastic interest after the first weeks which are necessarily a somewhat trying period for children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the impression that the results obtained during the period of less than one year since the beginning of the institution definitely justify its continuance and development. Of course, there were many who were protesting against that segregation. Such was naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made the following statement to the press: "It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life and evade the influence of civilization. The Government will follow its policy to organize them into political communities and to educate their children with the object of making them useful citizens of this country. To permit them to live a wayfaring life will ultimately result in a burden to the state and on account of their ignorance, they will commit crimes and make depredation, or if not they will be subject to involuntary servitude by those who may want to abuse them." The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian people, has adopted as the polaris of his administration "the advancement of the non-Christian elements of our population to equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures: (a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild habitat and settle in organized communities. (b) The extension of the public school system and the system of public health throughout the regions inhabited by the non-Christian people. (c) The extention of public works throughout the Mohammedan regions to facilitate their development and the extention of government control.

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(d) Construction of roads and trials between one place and another among non-Christians, to promote social and commercial intercourse and maintain amicable relations among them and with the Christian people. (e) Pursuance of the development of natural economic resources, especially agriculture. ( f ) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of Mindanao and Sulu. The Secretary adds: To attain the end desired, work of a civilizing influence have been continued among the nonChristian people. These people are being taught and guided to improve their living conditions in order that they may fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild habitat and settle in organized settlements. They are being made to understand that it is the purpose of the Government to organize them politically into fixed and per manent communities, thus bringing them under the control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate their children, and show them the advantages of leading a civilized life with their civilized brothers. In short, they are being impressed with the purposes and objectives of the Government of leading them to economic, social, and political equality, and unification with the more highly civilized inhabitants of the country. (See Report of the Department for 1917.) The fundamental objective of governmental policy is to establish friendly relations with the so-called nonChristians, and to promote their educational, agricultural, industrial, and economic development and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian people in the following unequivocal terms: It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster by all adequate means and in a systematical, rapid, and complete manner the moral, material, economic, social, and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between, and complete fusion of, all the Christian and non-Christian elements populating the provinces of the Archipelago. (Sec. 3.) May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan, carefully formulated, and apparently working out for the ultimate good of these people? In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing nothing for the advancement of the Philippine Islands. What the Government wished to do by bringing than into a reservation was to gather together the children for educational purposes, and to improve the health and morals was in fine, to begin the process of civilization. this method was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has been followed with reference to the Manguianes and other peoples of the same class, because it required, if they are to be improved, that they be gathered together. On these few reservations there live under restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes protection for the manguianes. Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all the

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rights which citizenship implies. And true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are punished by the Penal Code, because these penalties are imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to guarantee peace and order. Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing. To quote again from the instructive memorandum of the Secretary of the Interior: Living a nomadic and a wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. Not bringing any benefit to the State but instead injuring and damaging its interests, what will ultimately become of these people with the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a heavy burden to the State and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. There is no doubt in my mind that this people a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being deprived thereof without due process of law? xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people should be let along in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience. xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. The progress of those people under the tutelage of the Government is indeed encouraging and the signs of the times point to a day which is not far distant when they will become useful citizens. In the light of what

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has already been accomplished which has been winning the gratitude of most of the backward people, shall we give up the noble work simply because a certain element, believing that their personal interests would be injured by such a measure has come forward and challenged the authority of the Government to lead this people in the pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem this people from the claws of ignorance and superstition, now willingly retire because there has been erroneously invoked in their favor that Constitutional guaranty that no person shall be deprived of his liberty without due process of law? To allow them to successfully invoke that Constitutional guaranty at this time will leave the Government without recourse to pursue the works of civilizing them and making them useful citizens. They will thus left in a permanent state of savagery and become a vulnerable point to attack by those who doubt, nay challenge, the ability of the nation to deal with our backward brothers. The manguianes in question have been directed to live together at Tigbao. There they are being taught and guided to improve their living conditions. They are being made to understand that they object of the government is to organize them politically into fixed and permanent communities. They are being aided to live and work. Their children are being educated in a school especially established for them. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. Certainly their living together in Tigbao does not make them slaves or put them in a condition compelled to do services for another. They do not work for anybody but for themselves. There is, therefore, no involuntary servitude. But they are compelled to live there and prohibited from emigrating to some other places under penalty of imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and wayfaring life, do not have permanent individual property. They move from one place to another as the conditions of living warrants, and the entire space where they are roving about is the property of the nation, the greater part being lands of public domain. Wandering from one place to another on the public lands, why can not the government adopt a measure to concentrate them in a certain fixed place on the public lands, instead of permitting them to roam all over the entire territory? This measure is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you can not make them live together and the noble intention of the Government of organizing them politically will come to naught. G. APPLICATION AND CONCLUSION. Our exhaustive study should have left us in a position to answer specific objections and to reach a general conclusion. In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could be not, however, be kept away from certain localities ? To furnish an example from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for the apprehension of marauding Indians. Without any doubt, this law and other similar were accepted and followed time and again without question. It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of any oppressed Manguian? The answer would naturally be that the official into whose hands are given the enforcement of the law would have little or not motive to oppress these people; on the contrary, the presumption would all be that they would endeavor to carry out the purposes of the law intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always exists the power of removal in the hands of superior officers, and the courts are always open for a redress of grievances. When, however, only the validity of the law is generally challenged and no particular case of oppression is

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called to the attention of the courts, it would seems that the Judiciary should not unnecessarily hamper the Government in the accomplishment of its laudable purpose. The question is above all one of sociology. How far, consistently with freedom, may the right and liberties of the individual members of society be subordinated to the will of the Government? It is a question which has assailed the very existence of government from the beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very existence of government renders imperatives a power to restrain the individual to some extent, dependent, of course, on the necessities of the class attempted to be benefited. As to the particular degree to which the Legislature and the Executive can go in interfering with the rights of the citizen, this is, and for a along time to come will be, impossible for the courts to determine. The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the past. The modern period has shown as widespread belief in the amplest possible demonstration of governmental activity. The courts unfortunately have sometimes seemed to trial after the other two branches of the government in this progressive march. Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a great malady requires an equally drastic remedy. Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. To go back to our definition of due process of law and equal protection of the law, there exists a law ; the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to all of a class. As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that section 2145 is valid. it the attitude which the courts should assume towards the settled policy of the Government. In a late decision with which we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes: We can seen objection to the application of public policy as a ratio decidendi. Every really new question that comes before the courts is, in the last analysis, determined on that theory, when not determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible contingencies. Distinctions must be made from time to time as sound reason and a true sense of justice may dictate." Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians has been in vain, if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea to unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good and the good of the country. Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the best considered case is toward non-interference on the part of the courts whenever political ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other mortal contrivances,

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has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave questions which this case presents, the courts must take "a chance," it should be with a view to upholding the law, with a view to the effectuation of the general governmental policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but with that broad conception which will make the courts as progressive and effective a force as are the other departments of the Government. We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a person of his liberty without due process of law and does not deny to him the equal protection of the laws, and that confinement in reservations in accordance with said section does not constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional. Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered. Arellano, C.J., Torres and Avancea, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 127685 July 23, 1998 BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

PUNO, J.: The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right most valued by civilized men." 1 Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional grounds,viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further erosion. A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows: ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

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WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government intrumentalities is required to achieve such a system; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following: Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized Identification Reference System among the key basic services and social security providers is hereby established. Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members: Head, Presidential Management Staff Secretary, National Economic Development Authority Secretary, Department of the Interior and Local Government Secretary, Department of Health Administrator, Government Service Insurance System, Administrator, Social Security System, Administrator, National Statistics Office Managing Director, National Computer Center. Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC. Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems. Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference.

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Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies. Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President through the IACC, on the status of implementation of this undertaking. Sec. 8. Effectivity. This Administrative Order shall take effect immediately. DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six. (SGD.) FIDEL V. RAMOS A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation. Petitioner contends: A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES. B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE. C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. 2 Respondents counter-argue: A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW; B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS; C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES; D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. We now resolve. I
3

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As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated. These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the Government Service Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds to implement A.O. No. 308. 5 The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the manufacture of the National Identification (ID) card. 6 Respondent Executive Secretary Torres has publicly announced that representatives from the GSIS and the SSS have completed the guidelines for the national identification system. 7 All signals from the respondents show their unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an important constitutional principle and a fundamental right. II We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy. Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court. The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. 9 The grant of legislative power to Congress is broad, general and comprehensive. 10 The legislative body possesses plenary power for all purposes of civil government. 11 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. 12 In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. 13 While Congress is vested with the power to enact laws, the President executes the laws. 14 The executive power is vested in the Presidents. 15 It is generally defined as the power to enforce and administer the laws. 16 It is the power of carrying the laws into practical operation and enforcing their due observance. 17 As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. 18 He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office or interfere with the discretion of its officials. 19 Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted

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administrative power over bureaus and offices under his control to enable him to discharge his duties effectively. 20 Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. 21 It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. 22 To this end, he can issue administrative orders, rules and regulations. Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. An administrative order is: Sec. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders. 23 An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. 24 We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and "incorporates in a unified document the major structural, functional and procedural principles of governance." 25 and "embodies changes in administrative structure and procedures designed to serve the people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch, Book V on Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guideline for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e, internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. 27 It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes for the first time a National Computerized Identification Reference System. Such a System requires a delicate adjustment of various contending state policies the primacy of national security, the extent of privacy interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law. Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no right, imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with government agencies delivering basic services to the people without the contemplated identification card. No citizen will refuse to get this identification card for no one can avoid dealing with government. It is thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality, the contention that A.O. No. 308 gives no right and imposes no duty cannot stand. Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and consequently erodes the plenary power of Congress to make laws. This is contrary to the established approach defining the traditional limits of administrative legislation. As well stated by Fisher: ". . . Many

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regulations however, bear directly on the public. It is here that administrative legislation must he restricted in its scope and application. Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws." 28 III Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31 viz: Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help give them life and substance . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ''right of the people to be secure in their persons, houses and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held: xxx xxx xxx The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offence on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider implications though. The constitutional right to privacy has come into its own. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of Rights:

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Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: 34 Sec. 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. Sec. 2. The right of the people to be secure in their persons, houses papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. xxx xxx xxx 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. xxx xxx xxx Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 17. No person shall be compelled to be a witness against himself. Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. 35 It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, 36 and recognizes the privacy of letters and other private communications. 37 The Revised Penal Code makes a crime the violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual Property Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of certain information. 44 Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provides our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger. The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a "common reference number to establish a linkage among concerned agencies" through the use of "Biometrics Technology" and "computer application designs."

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Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a mathematical analysis of biological data." 45 The term "biometrics" has evolved into a broad category of technologies which provide precise confirmation of an individual's identity through the use of the individual's own physiological and behavioral characteristics. 46 A physiological characteristic is a relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial features. A behavioral characteristic is influenced by the individual's personality and includes voice print, signature and keystroke. 47 Most biometric idenfication systems use a card or personal identificatin number (PIN) for initial identification. The biometric measurement is used to verify that the individual holding the card or entering the PIN is the legitimate owner of the card or PIN. 48 A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the unique pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer data banks 49 and becomes a means of identifying an individual using a service. This technology requires one's fingertip to be scanned every time service or access is provided. 50 Another method is the retinal scan. Retinal scan technology employs optical technology to map the capillary pattern of the retina of the eye. This technology produces a unique print similar to a finger print. 51 Another biometric method is known as the "artificial nose." This device chemically analyzes the unique combination of substances excreted from the skin of people. 52 The latest on the list of biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using infra-red cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all contribute to the individual's personal "heat signature." 53 In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts. Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses various technologies in encoding any and all biological characteristics of an individual for identification. It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage. Considering the banquest of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless. A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the adoption of the Identification Reference System will contribute to the "generation of population data for development planning." 54 This is an admission that the PRN will not be used solely for identification but the generation of other data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN. The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge formidable informatin base through the electronic linkage of the files. 55 The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. 56 We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal infomation about the individual. 57 Even that hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall he handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. 58 Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without

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fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system. 59 It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. 60 The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. 62They threaten the very abuses that the Bill of Rights seeks to prevent. 63 The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit it over a national network is one of the most graphic threats of the computer revolution. 64 The computer is capable of producing a comprehensive dossier on individuals out of information given at different times and for varied purposes. 65 It can continue adding to the stored data and keeping the information up to date. Retrieval of stored date is simple. When information of a privileged character finds its way into the computer, it can be extracted together with other data on the subject. 66 Once extracted, the information is putty in the hands of any person. The end of privacy begins. Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court will not be true to its role as the ultimate guardian of the people's liberty if it would not immediately smother the sparks that endanger their rights but would rather wait for the fire that could consume them. We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard to the Natioal ID and the use of biometrics technology as it stands on quicksand. The reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable.67 The factual circumstances of the case determines the reasonableness of the expectation. 68 However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. 69 The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable expectation of privacy. 70 As technology advances, the level of reasonably expected privacy decreases. 71 The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. 72 The security of the computer data file depends not only on the physical inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions. The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the policy of the law or order. On its face, A.O. No. gives the IACC virtually infettered discretion to determine the metes and bounds of the ID System. Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy. Commonwealth Act. No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment and fine. 73 Republic Act. No. 1161 prohibits public disclosure of SSS employment records and reports. 74 These laws, however, apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to data with the other government agencies forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is another reason why its enactment should be given to Congress. Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the rational relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to streamline and

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speed up the implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3) generate population data for development planning. He cocludes that these purposes justify the incursions into the right to privacy for the means are rationally related to the end. 76 We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not infringe on the individual's right to privacy. The law was enacted to promote morality in public administration by curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. 78 The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. IN the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hod that when the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling state interests and that the law, rule or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitutions. The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the United States Supreme Court was presented with the question of whether the State of New York could keep a centralized computer record of the names and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The New York State Controlled Substance Act of 1972 required physicians to identify parties obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names and addresses of the patients can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication because of their fear that the computerized data may be readily available and open to public disclosure; and that once disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e., the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions. The U.S. Supreme Court held that while an individual's interest in avoiding disclosuer of personal matter is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification requirement was a product of an orderly and rational legislative decision made upon recommmendation by a specially appointed commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure and requirements for the gathering, storage and retrieval of the informatin. It ebumerated who were authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards. Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the use of computers to accumulate, store, process, retvieve and transmit data to improve our bureaucracy. Computers work wonders to achieve the efficiency which both government and private industry seek. Many information system in different countries make use of the computer to facilitate important social objective, such as better law enforcement, faster delivery of public services, more efficient management of credit and insurance programs, improvement of telecommunications and streamlining of financial activities. 81 Used wisely, data stored in the computer could help good administration by making accurate and comprehensive information for those who have to frame policy and make key decisions. 82 The

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benefits of the computer has revolutionized information technology. It developed the internet, 83 introduced the concept of cyberspace 84 and the information superhighway where the individual, armed only with his personal computer, may surf and search all kinds and classes of information from libraries and databases connected to the net. In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused 85 and a compelling interest justify such intrusions. 86 Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit: The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic disctinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society. 87 IV The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources governments, journalists, employers, social scientists, etc. 88 In th case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for flattery. IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" declared null and void for being unconstitutional. SO ORDERED. Bellosillo and Martinez, JJ., concur. Narvasa, C.J., I join Justices Kapunan and Mendoza in their dissents. Regalado, J., In the result. Davide, Jr., In the result and I join Mr. Justice Panganiban in his separate opinion. Romero, J., Please see separate opinion.

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Melo, J., I join the dissents of Justices Kapunan and Mendoza. Vitug, J., See separate opinion. Kapunan, J., See dissenting opinion. Mendoza, J., Please see dissenting opinion. Panganiban, J., Please see Separate Opinion. Quisumbing, J., I join in dissenting opinion of JJ. Mendoza and Kapunan. Purisima, J., I join in Justice Mendoza's dissenting. EN BANC

[G.R. No. 148560. November 19, 2001]

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents. DECISION BELLOSILLO, J.: JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for nonobservance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1]as amended by RA 7659,[2] wishes to impress upon us that the

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assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par.

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(e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. [3] Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon [4] we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of

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unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada,THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused,WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE , did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE

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OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS ( P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with coaccused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS ( P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied). (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS ( P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS ( P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK." We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process.

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The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them;[6] much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, [7] unless it is evident that the legislature intended a technical or special legal meaning to those words. [8] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also? REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts. REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

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REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term series? REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha... REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words a series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be.... SENATOR MACEDA: Yes, because a series implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts of plunder there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President. Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan [9] that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

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x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.[10] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.[11] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[12] It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." [14] A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."[15] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

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This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." [19] In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." [20] As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."[21] Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. [22] It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.[23] But, as the U.S. Supreme Court pointed out in Younger v. Harris[24] [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"[25]and is generally disfavored.[26] In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged. [27] In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage.

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The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. [29] The use of the "reasonable

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doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990 MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him? MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied). It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00.[31] A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the

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prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.[32] We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby.

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Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[33] However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .[34] Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."[35] Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight

50

penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:[36] The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se[37] and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray[38] to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by

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responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED. Buena, and De Leon, Jr., JJ., concur. Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza. Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion. Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion. Mendoza, J., please see concurring opinion. Panganiban J., please see separate concurring opinion. Carpio, J., no part. Was one of the complainants before Ombudsman. EN BANC
PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
*

G.R. No. 171396 Present: PANGANIBAN, C.J., PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JJ. Promulgated:

- versus GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents. x-------------------------------------------------x NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners, - versus HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents. x-------------------------------------------------x FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners, - versus EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents. x-------------------------------------------------x

May 3, 2006 G.R. No. 171409

G.R. No. 171485

52

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners, - versus HER EXCELLENCY, PRESIDENT GLORIA MACAPAGALARROYO, THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents. x-------------------------------------------------x ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, - versus G.R. No. 171483 EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents. x-------------------------------------------------x JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners, - versus HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents. x-------------------------------------------------x LOREN B. LEGARDA, Petitioner, - versus GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.

G.R. No. 171400

G.R. No. 171489 G.R. No. 171424

x---------------------------------------------------------------------------------------------x

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DECISION SANDOVAL-GUTIERREZ, J.: All powers need some restraint; practical adjustments rather than rigid formula are necessary. Superior strength the use of force cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.
[1]

Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: In cases involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their constitutional validity.[2] These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria MacapagalArroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?[3] On February 24, 2006, as the nation celebrated the 20 th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . ., and in my capacity as their Commander-inChief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. She cited the following facts as bases: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists the historical enemies of the democratic Philippine State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down the President; WHEREAS, the claims of these elements have been recklessly magnifed by certain segments of the national media;

54

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including hindering the growth of the economy and sabotaging the peoples confdence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present dangerto the safety and the integrity of the Philippine State and of the Filipino people; On the same day, the President issued G. O. No. 5 implementing PP 1017, thus: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the dulyconstituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the peoples confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country;

55

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads: WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist. In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo. [4] They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger. During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O. No. 5. Signifcantly, there was no refutation from petitioners counsels. The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While he explained that it is not respondents task to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues. On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms. [5] On February 17, 2006, the authorities got hold of a document entitled Oplan Hackle I which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself.[6] Upon the advice of her security, President Arroyo decided not to attend the Alumni

56

Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground. On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents. [7] Prior to his arrest, Lt. San Juan announced through DZRH that the Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I. On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to disavow any defection. The latter promptly obeyed and issued a public statement: All SAF units are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty. On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said it was all systems go for the planned movement against Arroyo.[8] B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio. Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal declared: The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end it.[9] On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly announced: Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field. He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage in the first half of 2006. Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.[10] By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain of command remains solid and

57

undivided. To protect the young students from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region. For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O.

No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20thanniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that warrantless arrests and take-over of facilities, including media, can already be implemented.[11] Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members ofKilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. [12] According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-listAkbayan. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the building.[13] A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The raid, according to Presidential Chief of Staff Michael Defensor, is meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. The PNP warned that it would take over any media organization that would not follow standards set by the government during the state of national emergency. Director General Lomibao stated that if they do not follow the standards and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks tocooperate with the government for the duration of the state of national emergency. He asked for balanced reporting from broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened. [14]

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Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody. Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite. Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan MunaRepresentative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the Batasan 5 decided to stay indefinitely. Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions. On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent. In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial law; and(3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of censorship or prior restraint. They also claimed that the term emergency refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is absolutely no emergency that warrants the issuance of PP 1017. In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute usurpation of legislative powers; violation of freedom of expression and a declaration of martial law. They alleged that President Arroyo gravely abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so. In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws

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and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances. In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII of the Constitution. In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an arbitrary and unlawful exercise by the President of her Martial Law powers. And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that it amounts to an exercise by the President of emergency powers without congressional approval. In addition, petitioners asserted that PP 1017 goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code. And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution. In this regard, she stated that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal. In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free expression and redress of grievances. On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be summarized as follows: PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.),171489 (Cadiz et al.), and 171424 (Legarda) have legal standing. B. SUBSTANTIVE: 1) Whether the Supreme Court can review the factual bases of PP 1017. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. a. Facial Challenge b. Constitutional Basis c. As Applied Challenge A. PROCEDURAL First, we must resolve the procedural roadblocks. I- Moot and Academic Principle One of the greatest contributions of the American system to this country is the concept of judicial review enunciated inMarbury v. Madison.[21] This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited powers on the national government. x x x If the government consciously or unconsciously oversteps these limitations there must A.

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be some authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of judicial review.[22] But the power of judicial review does not repose upon the courts a self-starting capacity. [23] Courts may exercise such power only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself. [24] Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon. An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a real and substantial controversy admitting of specific relief. [25] The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered moot and academic by President Arroyos issuance of PP 1021. Such contention lacks merit. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,[26] so that a declaration thereon would be of no practical use or value. [27] Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29] The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative.[30] The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;[31] second, the exceptional character of the situation and the paramount public interest is involved;[32] third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; [33] and fourth, the case is capable of repetition yet evading review.[34] All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. [35] And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive Secretary.[36] However, they failed to take into account the Chief Justices very statement that an otherwise moot case may still be decided provided the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its

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issuance. The present case falls right within this exception to the mootness rule pointed out by the Chief Justice. II- Legal Standing In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. Locus standi is defined as a right of appearance in a court of justice on a given question. [37] In private suits, standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in interest. Accordingly, the real-party-in interest is the party who stands to be benefted or injured by the judgment in the suit or the party entitled to the avails of the suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[40] In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied. However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent direct injury test in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not suffcient that he has a general interest common to all members of the public. This Court adopted the direct injury test in our jurisdiction. In People v. Vera,[44] it held that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,[45]Manila Race Horse Trainers Association v. De la Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48] However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where the transcendental importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the issues raised due to the far-reaching implications of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and

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civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.[51] Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of transcendental importance. Pertinent are the following cases: (1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review of the Visiting Forces Agreement; (3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that Balikatan 02-01 involves the exercise of Congress taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora, [55] that in cases of transcendental importance, the cases must be settled promptly and defnitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) (2) (3) (4) (5) the cases involve constitutional issues; for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; for voters, there must be a showing of obvious interest in the validity of the election law in question; for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing. In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a peoples organization does not give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the Court reiterated the direct injury test with respect to concerned citizens cases involving constitutional issues. It held

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that there must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act. In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson. Now, the application of the above principles to the present petitions. The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct injury resulting from illegal arrest and unlawful search committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing. In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic rights. In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine Amusement and Gaming Corporation, [63] and Taada v. Tuvera,[64] that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their members.[65] We take judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5. In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, [66] the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view of the transcendental importance of the issue, this Court declares that petitioner have locus standi. In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her

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from pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more the transcendental importance of the issue involved, this Court may relax the standing rules. It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the liberality doctrine on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the transcendental importance doctrine, a relaxation of the standing requirements for the petitioners in the PP 1017 cases. This Court holds that all the petitioners herein have locus standi. Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency, [67] may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people[68] but he may be removed from office only in the mode provided by law and that is by impeachment. [69]

B. SUBSTANTIVE I. Review of Factual Bases Petitioners maintain that PP 1017 has no factual basis. Hence, it was not necessary for President Arroyo to issue such Proclamation. The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era of Lansang v. Garcia, [72] [73] Aquino, Jr. v. Enrile, and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the line defining political questions, particularly those questions in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. [75] Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the President and his decision is fnal and conclusive on the courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and balances, under which the President is supreme, x x x only if and when he acts within the sphere allotted 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.[76] In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question. [78] Then came Garcia-Padilla v. Enrile which greatly dilutedLansang. It declared that there is a need to re-examine the latter case, ratiocinating that in times of war or national emergency, the President must be given absolute control for the very life of the nation and the

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government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God.[79] The Integrated Bar of the Philippines v. Zamora [80] -- a recent case most pertinent to these cases at bar -- echoed a principle similar to Lansang. While the Court considered the Presidents calling-out power as a discretionary power solely vested in his wisdom, it stressed that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. This ruling is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only to settle actual controversies involving rights which are legally demandable and enforceable, but also 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. The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government. [81] It speaks of judicial prerogative not only in terms of power but also of duty.[82] As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that judicial inquiry can go no further than to satisfy the Court not that the Presidents decision is correct, but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis and that if he fails, by way of proof, to support his assertion, then this Court cannot undertake an independent investigation beyond the pleadings. Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty. II. Constitutionality of PP 1017 and G.O. No. 5 Doctrines of Several Political Theorists on the Power of the President in Times of Emergency This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion. John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation, positive law enacted

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by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative power to act according to discretion for the public good, without the proscription of the law and sometimes even against it.[84] But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven.[85] Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency. According to him: The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. Even Sparta allowed its law to lapse... If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear that the peoples first intention is that the State shall not perish.[86] Rosseau did not fear the abuse of the emergency dictatorship or supreme magistracy as he termed it. For him, it would more likely be cheapened by indiscreet use. He was unwilling to rely upon an appeal to heaven. Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship. [87] John Stuart Mill concluded his ardent defense of representative government: I am far from condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory, thus: Now, in a well-ordered society, it should never be necessary to resort to extra constitutional measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it.[89] Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective constitutional restraints.
[90]

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Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have employed the doctrine of constitutional dictatorship. [91] Frederick M. Watkins saw no reason why absolutism should not be used as a means for the defense of liberal institutions, provided it serves to protect established institutions from the danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political life.[92] He recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional governance: increasing administrative powers of the executive, while at the same time imposing limitation upon that power.[93] Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a dictatorship: The period of dictatorship must be relatively shortDictatorship should always be strictly legitimate in character Final authority to determine the need for dictatorship in any given case must never rest with the dictator himself[94] and the objective of such an emergency dictatorship should be strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] It is a problem of concentrating power in a government where power has consciously been divided to cope with situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end.[96] Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: The emergency executive must be appointed by constitutional means i.e., he must be legitimate; he should not enjoy power to determine the existence of an emergency; emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of constitutional dictatorship as solution to the vexing problems presented by emergency. [98] Like Watkins and Friedrich, he stated a priori the conditions of success of the constitutional dictatorship, thus: 1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the State and its constitutional order 2) the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute the dictator 3) No government should initiate a constitutional dictatorship without making specific provisions for its termination 4) all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of constitutional or legal requirements 5) no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely necessary for the conquest of the particular crisis . . . 6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in character or effect 7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the existing constitutional order. . .

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8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . . 9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in the hands of the man or men who constitute the dictator. . . 10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted 11) the termination of the crisis must be followed by a complete return as possible to the political and governmental conditions existing prior to the initiation of the constitutional dictatorship[99] Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of congressional investigating committees.[100] Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, the suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory. To appraise emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term dictator is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. However used, constitutional dictatorship cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead the concept of constitutionalism articulated by Charles H. McIlwain: A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of adequate processes for keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that the really effective checks on despotism have consisted not in the weakening of government but, but rather in thelimiting of it; between which there is a great and very significant difference. In associating constitutionalism with limited as distinguished from weak government, McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fght are the legal limits to arbitrary power and a complete political responsibility of government to the governed.[101]

In the final analysis, the various approaches to emergency of the above political theorists - from Locks theory of prerogative, to Watkins doctrine of constitutional dictatorship and, eventually, to McIlwains principle of constitutionalism --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks. Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jacksons balanced power structure. [102] Executive, legislative, and judicial

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powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon the other. This system does not weaken the President, it just limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed procedural limitations. a. Facial Challenge Petitioners contend that PP 1017 is void on its face because of its overbreadth. They claim that its enforcement encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a chilling effect to the citizens. A facial review of PP 1017, using the overbreadth doctrine, is uncalled for. First and foremost, the overbreadth doctrine is an analytical tool developed for testing on their faces statutes in free speech cases, also known under the American Law as First Amendment cases.[103] A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,[104] the US Supreme Court held that we have not recognized an overbreadth doctrine outside the limited context of the First Amendment (freedom of speech). Moreover, the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct. Undoubtedly, lawless violence, insurrection and rebellion are considered harmful and constitutionally unprotected conduct. In Broadrick v. Oklahoma,[105] it was held: It remains a matter of no little difficulty to determine when a law may properly be held void on its face and when such summary action is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that refect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.[106] Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation. Second, facial invalidation of laws is considered as manifestly strong medicine, to be used sparingly and only as a last resort, and is generally disfavored;[107] The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. [108] A writer and scholar in Constitutional Law explains further:

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The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute on its face, not merely as applied for so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the chilling; deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws very existence may cause others not before the court to refrain from constitutionally protected speech or expression. An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris,[109]it was held that: [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists. Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. unwarranted. This, too, is

Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application.[110] It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing on their faces statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. b. Constitutional Basis of PP 1017 Now on the constitutional foundation of PP 1017. The operative portion of PP 1017 may be divided into three important provisions, thus: First provision:

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by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion Second provision: and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; Third provision: as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency. First Provision: Calling-out Power The first provision pertains to the Presidents calling-out power. In

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Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows: Sec. 18. 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. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ ofhabeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. CitingIntegrated Bar of the Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out power is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best position to determine the actual condition of the country. Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a state of rebellion (inSanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority to declare a state of rebellion emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:

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SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. President Arroyos declaration of a state of rebellion was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas. Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power. The declaration of Martial Law is a warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. [113] In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides: A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires. Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-inChief only where there is a valid declaration of Martial Law or suspension of the writ ofhabeas corpus. Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyos calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

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Second Provision: Take Care Power The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads: SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested, [115] the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, execute its laws.[116] In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country, [117] including the Philippine National Police[118] under the Department of Interior and Local Government. [119] Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. \ Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted[120] from Former President Marcos Proclamation No. 1081, which partly reads: NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to alldecrees, orders and regulations promulgated by me personally or upon my direction. Is it within the domain of President Arroyo to promulgate decrees? PP 1017 states in part: to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction.

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The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987). She may issue any of the following: Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders. Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders. Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars. Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders. President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution.[121] This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate decrees. Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that [t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. Can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to laws, she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over The pertinent provision of PP 1017 states:

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x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency. The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience to all the laws and to all decrees x x x but also to act pursuant to the provision of Section 17, Article XII which reads: Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017? The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest. This provision was first introduced in the 1973 Constitution, as a product of the martial law thinking of the 1971 Constitutional Convention. [122] In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency. Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency powers. This is an area that needs delineation. A distinction must be drawn between the Presidents authority to declare a state of national emergency and toexercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. Section 23, Article VI of the Constitution reads: SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

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It may be pointed out that the second paragraph of the above provision refers not only to war but also to other national emergency. If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a state of national emergency pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a state of national emergency. The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a

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different matter.

This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other. [123] Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) There must be a war or other emergency. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest, it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held: It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that The executive Power shall be vested in a President . . . .; that he shall take Care that the Laws be faithfully executed; and that he shall be Commander-in-Chief of the Army and Navy of the United States. The order cannot properly be sustained as an exercise of the Presidents military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though theater of war be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nations lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the Presidents power to see that the laws are faithfully executed refutes

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the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The frst section of the frst article says that All legislative Powers herein granted shall be vested in a Congress of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under Section 17, Article XII refers to tsunami, typhoon, hurricane and similar occurrences. This is a limited view of emergency.

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. [127] Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic,[128] b) natural disaster,[129] and c) national security.
[130]

Emergency, as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. [131] This is evident in the Records of the Constitutional Commission, thus: MR. GASCON. Yes. What is the Committees definition of national emergency which appears in Section 13, page 5? It reads: When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. MR. VILLEGAS. What I mean example, calamities or natural disasters. is threat from external aggression, for

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots? MR. VILLEGAS. Strikes, no; those would not be covered by the term national emergency. MR. BENGZON. Unless they are of such proportions such that they would paralyze government service. [132] x x x x x x

MR. TINGSON. May I ask the committee if national emergency refers to military national emergency or could this be economic emergency? MR. VILLEGAS. Yes, it could refer to both military or economic dislocations. MR. TINGSON. Thank you very much. [133]

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It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the President the power to take over privately-owned public utility or business affected with public interest. In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis. x x x After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that the Constitution has set up this form of government, with all its defects and shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share the faith of other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the United States, the basic features of whose Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws been surrendered to another department unless we regard as legislating the carrying out of a legislative policy according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-anddeath struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances the various branches, executive, legislative, and judicial, given the ability to act, are called upon to perform the duties and discharge the responsibilities committed to them respectively. Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. c. AS APPLIED CHALLENGE One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right against warrantless arrest;and the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow. Of the seven (7) petitions, three (3) indicate direct injury. In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on their way to EDSA to celebrate the 20 th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.

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In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG operatives raided and ransacked without warrant their office. Three policemen were assigned to guard their office as a possible source of destabilization. Again, the basis was PP 1017. And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were turned away and dispersed when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I. A perusal of the direct injuries allegedly suffered by the said petitioners shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017. Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal implementation of a law render it unconstitutional? Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused[135]and may afford an opportunity for abuse in the manner of application.[136] The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.[137] PP 1017 is merely an invocation of the Presidents calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of power, and not a mere incidental result arising from its exertion.[138] This is logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long time ago. President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines. They are internal rules issued by the executive officer to his subordinates precisely for the proper and effcient administration of law. Such rules and regulations create no relation except between the official who issues them and the official who receives them. [139] They are based on and are the product of, a relationship in which power is their source, and obedience, their object. [140] For these reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious. G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. Unlike the term lawless violence which is unarguably extant in our statutes and the Constitution, and which is invariably associated with invasion, insurrection or rebellion, the phrase acts of terrorism is still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this definitional predicament or the absence of an agreed definition of terrorism confronts not only our country, but the international community as well. The following observations are quite apropos:

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In the actual unipolar context of international relations, the fight against terrorism has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states sponsoring terrorism and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the public, but are clearly determined by strategic interests. The basic problem underlying all these military actions or threats of the use of force as the most recent by the United States against Iraq consists in the absence of an agreed definition of terrorism. Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as liberation movements, or by individuals. The dilemma can by summarized in the saying One countrys terrorist is another countrys freedom fighter. The apparent contradiction or lack of consistency in the use of the term terrorism may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became internationally respected statesmen. What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those acts from eventually legitimate acts of national resistance or self-defense? Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate terrorism with any violent act by non-state groups against civilians, state functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is concerned. The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations and movements such as Palestine Liberation Organization (PLO) which is a terrorist group for Israel and a liberation movement for Arabs and Muslims the Kashmiri resistance groups who are terrorists in the perception of India, liberation fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the United States, terrorists for the Socialist camp or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way because of opposing political interests that are at the roots of those perceptions. How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the definition of terrorism will fluctuate accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a liberation struggle, not of terrorism when acts of violence by this group are concerned, and vice-versa.

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The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A policy of double standards on this vital issue of international affairs has been the unavoidable consequence. This definitional predicament of an organization consisting of sovereign states and not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! has become even more serious in the present global power constellation: one superpower exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United States.
[141]

The absence of a law defining acts of terrorism may result in abuse and oppression on the part of the police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding penalty thereon. So far, the word terrorism appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations. The word terrorism is mentioned in the following provision: That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define acts of terrorism. Since there is no law defining acts of terrorism, it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the acts of terrorism portion of G.O. No. 5 is unconstitutional. Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal. We first examine G.R. No. 171396 (David et al.) The Constitution provides that the right of the people to be secured in their persons, houses, papers and effects against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[142] The plain import of the language of the Constitution is that searches, seizures and arrests are normallyunreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and police must

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stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.[143] In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was arrested without warrant;second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated brusquely by policemen who held his head and tried to push him inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880[145] and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was eventually released for insufficiency of evidence. Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective Oust Gloria Now and their erroneous assumption that petitioner David was the leader of the rally. [146] Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner David was the leader of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but also their right to peaceably assemble. Section 4 of Article III guarantees: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on

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a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly cannot be made a crime, thus: Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting was held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al.(G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent.[149] Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens right to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated. Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits. [150] The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribunes offices were searched without warrant; second, the police operatives seized several materials for publication; third, the search was conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily

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Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity of theDaily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. Director General Lomibao further stated that if they do not follow the standards and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outft that violates rules set out for media coverage during times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG operatives.

Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court held that -As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the Metropolitan Mail and We Forum newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. [153] Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to

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comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes offices and the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible for any purpose, thus: JUSTICE CALLEJO: You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the admissibility of these clippings that were taken from the Tribune? SOLICITOR GENERAL BENIPAYO: Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for any purpose.[155] xxx xxx xxx

SR. ASSO. JUSTICE PUNO: These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why do you have to go there at 1 oclock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what? SOLGEN BENIPAYO: Well, it was the police that did that, Your Honor. Not upon my instructions. SR. ASSO. JUSTICE PUNO: Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation 1017. SOLGEN BENIPAYO: It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go and inspect and gather clippings from Daily Tribune or any other newspaper. SR. ASSO. JUSTICE PUNO: Is it based on any law? SOLGEN BENIPAYO: As far as I know, no, Your Honor, from the facts, no.

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SR. ASSO. JUSTICE PUNO: So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO: Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do not condone this. If the people who have been injured by this would want to sue them, they can sue and there are remedies for this.[156] Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot be condoned, thus: CHIEF JUSTICE PANGANIBAN: There seems to be some confusions if not contradiction in your theory. SOLICITOR GENERAL BENIPAYO: I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These are acts of the police officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and should result in no constitutional or statutory breaches if applied according to their letter. The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens rights under the Constitution, this Court has to declare such acts unconstitutional and illegal. In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered an integral part of this ponencia. SUMMATION In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed if the May 1 rallies become unruly and violent. Consequently, the transcendental issues raised by the parties should not be evaded; they must now be resolved to prevent future constitutional aberration.

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The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires andunconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard that the military and the police should take only the necessary and appropriate actions and measures to suppress and prevent acts of lawless violence. But the words acts of terrorism found in G.O. No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While terrorism has been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFPs authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of theTribune offices and the whimsical seizures of some articles for publication and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5. Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our peoples liberty. Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism:the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.[158] WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not

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authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is necessary and appropriate actions and measures to suppress and prevent acts of lawless violence. Considering that acts of terrorism have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declaredUNCONSTITUTIONAL. No costs. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice WE CONCUR:
ARTEMIO V. PANGANIBAN Chief Justice

(On leave) REYNATO S. PUNO Associate Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

CANCIO C. GARCIA Associate Justice

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PRESBITERO J. VELASCO, JR. Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. ARTEMIO V. PANGANIBAN Chief Justice SECOND DIVISION

[G.R. No. 108461. October 21, 1996]

PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioners, vs. HON PRESIDING JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC, MAKATI; REMINGTON INDUSTRIAL SALES CORPORATION; AND FIRESTONE CERAMIC, INC., respondents. DECISION TORRES, JR., J.: The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed this Petition for Review on Certiorari, seeking the reversal of the Decision dated January 4, 1993 of public respondent Hon. Zosimo Z. Angeles. Presiding Judge of the Regional Trial Court of Makati, Branch 58, in civil Case No.92-158 entitled Remington Industrial Sales Corporation, et. al. vs. Philippine Industrial Trading Corporation. The said decision upheld the Petition for Prohibition and Mandamus of REMINGTON INDUSTRIAL SALES CORPORATION (Remington, for brevity) and FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in the process, declared as null and void and unconstitutional, PITCs Administrative Order No. SOCPEC 89-08-01 and its appurtenant regulations. The dispositive portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of Petitioner and Intervenor and against the Respondent, as follows: 1) Enjoining the further implementation by the respondent of the following issuances relative to the applications for importation of products from the Peoples Republic of China, to wit: a) b) c) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A, Amended petition); Prescribed Export Undertaking Form (Annex B, Id.); Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.);

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d) Memorandum dated April 16, 1990 relative to amendments of Administrative Order NO. SOCPEC 8908-01 (Annex D, Id.); e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the processing of import applications (Annexes E, E-1., Ind.); f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and expired export credits (Annex Z, Supplemental Petition), the foregoing being all null and void and unconstitutional; and, 2) Commanding respondent to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without the requirements prescribed in a the above-mentioned issuance. IT IS SO ORDERED." The controversy springs from the issuance by the PITC of Administrative Order No. SOCPEC 89-0801,[1] under which, applications to the PITC for importation from the Peoples Republic of China (PROC. for brevity) must be accompanied by a viable and confirmed Export Program of Philippine Products to PROC carried out by the importer himself or through a tie-up with a legitimate importer in an amount equivalent to the value of the importation from PROC being applied for, or, simply, at one is to one ratio. Pertinent provisions of the questioned administrative order read: 3. COUNTERPART EXPORTS TO PROC In addition to existing requirements for the processing of import application for goods and commodities originating from PROC, it is declared that: 3.1 All applications covered by these rules must be accompanied by a viable and confirmed EXPORT PROGRAM of Philippine products to PROC in an amount equivalent to the value of the importation from PROC being applied for. Such export program must be carried out and completed within six (6) months from date of approval of the Import Application by PITC. PITC shall reject/deny any application for importation from PROC without the accompanying export program mentioned above. 3.2 The EXPORT PROGRAM may be carried out by any of the following:

a. By the IMPORTER himself if he has the capabilities and facilities to carry out the export of Philippine products to PROC in his own name; or b. Through a tie-up between the IMPORTER and a legitimate exporter (of Philippine products) who is willing to carry out the export commitments of the IMPORTER under these rules. The tie-up shall not make the IMPORTER the exporter of the goods but shall merely ensure that the importation sought to be approved is matched one-to-one (1:1) in value with a corresponding export of Philippine Products to PROC.[2] 3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the importer together with his Import Application are as follows: a) b) Firm Contract, Sales Invoice or Letter of Credit. Export Performance Guarantee (See Article 4 hereof).

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c) IMPORTER-EXPORTER AGREEMENT for non-exporter IMPORTER (PITC Form No. M-1006). This form should be used if IMPORTER has a tie-up with an exporter for the export of Philippine Products to PROC. 4. EXPORT GUARANTEE To ensure that the export commitments of the IMPORTER are carried out in accordance with these rules, all IMPORTERS concerned are required to submit an EXPORT PERFORMANCE GUARANTEE (the Guarantee) at the time of filing of the Import Application. The amount of the guarantee shall be as follows: For essential commodities: 15% of the value of the imports applied for. For other commodities: 50% of the value of the imports applied for. 4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit; (ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic Letter of Credit (with all bank opening charges for account of Importer) opened in favor of PITC as beneficiary. 4.2 The guarantee shall be made in favor of PITC and will be automatically forfeited in favor of PITC, fully or partially, if the required export program is not completed by the importer within six (6) months from date of approval of the Import Application. 4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a (i) refund of the cash deposited without interest; (ii) cancellation of the Bank holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that he has completed the export commitment pertaining to his importation and provided further that the following documents are submitted to PITC: a) b) c) d) Final Sales Invoice Bill of lading or Airway bill Bank Certificate of Inward remittance PITC EXPORT APPLICATION FOR NO. M-1005

5. MISCELLANEOUS 5.1 All other requirements for importations of goods and commodities from PROC must be complied with in addition to the above. 5.2 PITC shall have the right to disapprove any and all import application not in accordance with the rules and regulations herein prescribed. 5.3 Should the IMPORTER or any of his duly authorized representatives make any false statements or fraudulent misrepresentations in the Import/Export Application, or falsify, forge or simulate any document required under these rules and regulations, PITC is authorized to reject all pending and future import/export applications of said IMPORTER and/or disqualify said IMPORTER and/or disqualify said IMPORTER from doing any business with SOCPEC through PITC. Desiring to make importations from PROC, private respondents Remington and Firestone, both domestic corporations, organized and existing under Philippines laws, individually applied for authority to import from PROC with the petitioner, They were granted such authority after satisfying the requirements for importers, and after they executed respective undertakings to balance their importations from PROC with corresponding export of Philippine products to PROC.

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Private respondent Remington was allowed to import tools, machineries and other similar goods. Firestones, on the other hand, importedCalcine Vauxite, which it used for the manufacture of fire bricks, one of its products. Subsequently, for failing to comply with their undertakings to submit export credits equivalent to the value of their importations, further import applications were withheld by petitioner PITC from private respondents, such that the latter both barred from importing goods from PROC. [3] Consequently, Remington filed a Petition for Prohibition and Mandamus, with prayer for issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction on January 20, 1992, against PITC in the RTC Makati Branch 58.[4] The court issued a Temporary Restraining Order on January 21, 1992, ordering PITC to cease from exercising any power to process applications of goods from PROC. [5] Hearings on the application for writ of preliminary injunction ensued. Private respondents Firestones was allowed to intervene in the petition on July 2, 1992,[6] thus joining Remington in the latters charges against PITC. It specifically asserts that the questioned Administrative Order is an undue restrictions of trade, and hence, unconstitutional. Upon trial, it was agreed that the evidence adduced upon the hearing on the Preliminary Injunction was sufficient to completely adjudicate the case, thus, the parties deemed it proper that the entire case be submitted for decision upon the evidence so far presented. The court rendered its Decision [7] on January 4, 1992. The court ruled that PITCs authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. No. 1071, has already been repealed by EO No. 133, issued onFebruary 27, 1987 by President Aquino. The court observed: Given such obliteration and/or withdrawal of what used to be PITCs regulatory authority under the Special provisions embodied in LOI 444 from the enumeration of powers that it could exercise effective February 27, 1987 in virtue of Section 16 (d), EO No. 133, it may now be successfully argued that the PITC can no longer exercise such specific regulatory power in question conformably with the legal precept expresio unius est exclusio alterius. Moreover, the court continued, none of the Trade protocols of 1989, 1990 or 1991, has empowered the PITC, expressly or impliedly to formulate or promulgate the assailed Administrative Order. This fact, makes the continued exercise by PITC of the regulatory powers in question unworthy of judicial approval. Otherwise, it would be sanctioning an undue exercise of legislative power vested solely in the Congress of thePhilippines by Section 1, Article VII of the 1987 Philippine Constitution. The lower court stated that the subject Administrative Order and other similar issuances by PITC suffer from serious constitutional infirmity, having been promulgated in pursuance of an international agreement (the Memorandum of Agreement between the Philippine and PROC), which has not been concurred in by at least 2/3 of all the members of the Philippine Senate as required by Article VII, Section 21, of the 1987 Constitution, and therefore, null and void. Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Furthermore, the subject Administrative Order was issued in restraint of trade, in violation of Sections 1 and 19, Article XII of the 1987 Constitution, which reads: Section 1. The goals of the national economy are a more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and, an expanding productivity as the key to raising the equality of life for all, especially the underprivileged.

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Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combination is restraint of trade or unfair competition shall be allowed. Lastly, the court declared the Administrative Order to be null and void, since the same was not published, contrary to Article 2 of the New Civil Code which provides, that: Article 2. Laws shall take effect fifteen (15) days following the completion of their publication in the Official Gazette, unless the law otherwise provides. xxx Petitioner now comes to us on a Petition for Review on Certiorari,[8] questioning the courts decision particularly on the propriety of the lower courts declarations on the validity of Administrative Order No. 89-08-01. The Court directed the respondents to file their respective Comments. Subsequent events transpired, however, which affect to some extent, the submissions of the parties to the present petition. Following President Fidel V. Ramos trip to Beijing, Peoples Republic of China (PROC), from April 25 to 30, 1993, a new trade agreement was entered into between the Philippines and PROC, encouraging liberalization of trade between the two countries. In line therewith, on April 20, 1993, the President, through Chief Presidential Legal Counsel Antonio T. Carpio, directed the Department of Trade and Industry and the PITC to cease implementing Administrative Order No. SOCPEC 89-08-01, as amended by PITC Board Resolution Nos. 92-01-05 and 92-03-08.[9] In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a corporate Memorandum[10] instructing that all import applications for the PROC filed with the PITC as of April 20, 1993 shall no longer be covered by the trade balancing program outlined in the Administrative Order. Forthwith, the PITC allowed the private respondents to import anew from the PROC, without being required to comply anymore with the lifted requirement of balancing its imports with exports of Philippine products to PROC.[11] In its Constancia[12] filed with the Court on November 22, 1993, Remington expressed its desire to have the present action declared moot and academic considering the new supervening developments. For its part, respondent Firestone made a Manifestation [13] in lieu of its Memorandum, informing the court of the aforesaid developments of the new trade program of the Philippines with China, and prayed for the courts early resolution of the action. To support its submission that the present action is now moot and academic, respondent Remington cites Executive Order No. 244,[14]issued by President Ramos on May 12, 1995. The Executive Order states: WHEREAS, continued coverage of the Peoples Republic of China by letter of Instructions No. 444 is no longer consistent with the countrys national interest, as coursing Republic of the Philippines-Peoples Republic of China Trade through the Philippine International Trading Corporation as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to trade; NOW, THEREFORE, I FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: The Committee on Scientific and Technical Cooperation with Socialist Countries to delete the Peoples Republic of China from the list of countries covered by Letter of Instructions No. 444. Done in the City of Manila, this 12th day of May in the year of Our Lord, Nineteen Hundred and NinetyFive. PITC filed its own Manifestation[15] on December 15, 1993, wherein it adopted the arguments raised in its Petition as its Memorandum. PITC disagrees with Remington on the latters submission that the case has become moot and academic as a result of the abrogation of Administrative Order SOCPEC No. 89-0801, since respondent Remington had incurred obligations to the petitioner consisting of charges for the 0.5% Counter Export Development Service provided by PITC to Remington, which obligations remain

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outstanding.[16] The propriety of such charges must still be resolved, petitioner argues, thereby maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it was abrogated by Executive fiat. There is no question that from April 20, 1993, when trade balancing measures with PROC were lifted by the President, Administrative Order SOCPEC No. 89-08-01 no longer has force and effect, and respondents are thus entitled anew to apply for authority to import from the PROC, without the trade balancing requirements previously imposed on proposed importers. Indeed, it appears that since the lifting of the trade balancing measures, Remington had been allowed to import anew from PROC. There remains, however, the matter of outstanding obligations of the respondents for the charges relating to the 0.5% Counter Export Development Service in favor of PITC, for the period when the questioned Administrative Order remained in effect. Is the obligation still subsisting, or are the respondents freed from it? To resolve this issue, we are tasked to consider the constitutionality of Administrative Order No. SOCPEC 89-08-01, based on the arguments set up by the parties in their Petition and Comment. In so doing, we must inquire into the nature of the functions of the PITC, in the light of present realities. The PITC is a government owned or controlled corporation created under P.D. No. 252[17] dated August 6, 1973. P.D. No. 1071,[18] issued on May 9, 1977 which revised the provisions of P.D. 252. The purposes and powers of said governmental entity were enumerated under Section 5 and 6 thereof.[19] On August 9, 1976, the late President Marcos issued Letter of Instruction (LOI) No. 444, directing, inter alia, that trade (export or import of all commodities), whether direct or indirect, between the Philippines and any of the Socialist and other Centrally Planned Economy Countries (SOCPEC), including the Peoples Republic of China (PROC) shall be undertaken or coursed through the PITC. Under the LOI, PITC was mandated to: 1) participate in all official trade and economic discussions between the Philippines and SOCPEC; 2) adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under its instructions; and 3) Undertake the processing and approval of all applications for export to or import from the SOCPEC.
[20]

Pertinent provisions of the Letter of Instruction are herein reproduced: LETTER OF INSTRUCTION 444 xxx II. CHANNELS OF TRADE 1. The trade, direct or indirect, between the Philippines and any of the Socialist and other centrallyplanned economy countries shall upon issuance hereof, be undertaken by or coursed through the Philippine International Trading Corporation. This shall apply to the export and import of all commodities of products including those specified for export or import by expressly authorized government agencies. xxx 4. The Philippine International Trading Corporation shall participate in all official trade and economic discussions between the Philippines and other centrally-planned economy countries. xxx V. SPECIAL PROVISIONS The Philippine International Trading Corporation shall adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under these instructions. In this connection, the processing and approval of applications for export to or import

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from the Socialist and other centrally-planned economy countries shall, henceforth, be performed by the said Corporation. (Emphasis ours) After the EDSA Revolution, or more specifically on February 27, 1987, then President Corazon C. Aquino promulgated Executive Order (EO) No. 133[21] reorganizing the Department of Trade and Industry (DTI) empowering the said department to be the "primary coordinative, promotive, facilitative and regulatory arm of the government for the countrys trade, industry and investment activities (Sec. 2, EO 133). The PITC was made one of DTIs line agencies. [22] The Executive Order reads in part: EXECUTIVE ORDER NO. 133 XXX Section 16. Line Corporate Agencies and Government Entities. The following line corporate agencies and government entities defined in Section 9 (c) of this Executive Order that will perform their specific regulatory functions, particularly developmental responsibilities and specialized business activities in a manner consonant with the Department mandate, objectives, policies, plans and programs: xxx d) Philippine International Trading Corporation. This corporation, which shall be supervised by the Undersecretary for International Trade, shall only engage in both export and trading on new or nontraditional products and markets not normally pursued by the private business sector; provide a wide range of export oriented auxiliary services to the private sector; arrange for a establish comprehensive system and physical facilities for handling the collection, processing, and distribution of cargoes and other commodities; monitor or coordinate risk insurance services for the existing institutions; promote and organize, whenever warranted, production enterprises and industrial establishments and collaborate or associate in joint venture with any person, association, company or entity, whether domestic or foreign, in the fields of production, marketing, procurement, and other relate businesses; and provide technical advisory, investigatory, consultancy and management services with respect to any and all of the functions, activities, and operations of the corporation. Sometime in April, 1988, following the State visit of President Aquino to the PROC, the Philippines and PROC entered into a memorandum of Understanding[23] (MOU) wherein the two countries agreed to make joint efforts within the next five years to expand bilateral trade to US $600 US $800 Million by 1992, and to strive for a steady progress towards achieving a balance between the value of their imports and exports during the period, agreeing for the purpose that upon the signing of the Memorandum, both sides shall undertake to establish the necessary steps and procedures to be adopted within the framework of the annual midyear review meeting under the Trade Protocol, in order to monitor and ensure the implementation of the MOU. Conformably with the MOU, the Philippines and PROC entered into a Trade Protocol for the years 1989, 1990 and 1991,[24] under which was specified the commodities to be traded between them. The protocols affirmed their agreement to jointly endeavor to achieve more or less a balance between the values of their imports and exports in their bilateral trade. It is allegedly in line with its powers under LOI 444 and in keeping with the MOU and Trade Protocols with PROC that PITC issued its now assailed Administrative Order No. SOCPEC 89-0801[25] on August 30, 1989 (amended in March, 1992). Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and amend the provisions of LOI 444, which was issued by then President Marcos, both issuances being executive directives. As observed by us in Philippine Association of Service Exporters , Inc. vs. Torres, [26]

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there is no need for legislative delegation of power to the President to revoke the Letter of Instruction by way of an Executive Order. This is notwithstanding the fact that the subject LOI 1190 was issued by President Marcos, when he was extraordinarily empowered to exercise legislative powers, whereas EO 450 was issued by Pres. Aquino when her transitional legislative powers have already ceased, since it was found that LOI 1190 was a mere administrative directive, hence, may be repealed, altered, or modified by EO 450. We do not agree, however, with the trial courts ruling that PITCs authority to issue rules and regulations pursuant to the Special Provisions of LOI 444 and P.D. No. 1071, have already been repealed by EO 133. While PITCs power to engage in commercial import and export activities is expressly recognized and allowed under Section 16 (d) of EO 133, the same is now limited only to new or non-traditional products and markets not normally pursued by the private business sector. There is no indication in the law of the removal of the powers of the PITC to exercise its regulatory functions in the area of importations from SOCPEC countries. Though it does not mention the grant of regulatory power, EO 133, as worded, is silent as to the abolition or limitation of such powers, previously granted under P.D. 1071, from the PITC. Likewise, the general repealing clause in EO 133 stating that all laws, ordinances, rules , and regulations, or other parts thereof, which are inconsistent with the Executive Order are hereby repealed or modified accordingly, cannot operate to abolish the grant of regulatory powers to the PITC. There can be no repeal of the said powers, absent any cogency of irreconcilable inconsistency or repugnancy between the issuances, relating to the regulatory power of the PITC. The President, in promulgating EO 133, had not intended to overhaul the functions of the PITC. The DTI was established, and was given powers and duties including those previously held by the PITC as an independent government entity, under P.D. 1071 and LOI 444. The PITC was thereby attached to the DTI as an implementing arm of the said department. EO 133 established the DTI as the primary coordinative, promotive, facilitative and regulatory arm of government for the countrys trade, industry and investment activities, which shall act as a catalyst for intensified private sector activity in order to accelerate and sustain economic growth. [27] In furtherance of this mandate, the DTI was empowered, among others, to plan, implement, and coordinate activities of the government related to trade industry and investments; to formulate and administer policies and guidelines for the investment priorities plan and the delivery of investment incentives; to formulate country and product export strategies which will guide the export promotion and development thrust of the government.[28] Corollarily, the Secretary of Trade and Industry is given the power to promulgate rules and regulations necessary to carry out the departments objectives, policies, plans, programs and projects. The PITC, on the other hand, was attached as an integral part to the said department as one of its line agencies,[29] and was given the focal task of implementing the departments programs. [30] The absence of the regulatory power formerly enshrined in the Special Provisions of LOI 444, from Section 16 of EO 133, and the limitation of its previously wide range of functions, is noted. This does not mean, however, that PITC has lost the authority to issue the questioned Administrative Order. It is our view that PITC still holds such authority, and may legally exercise it, as an implementing arm, and under the supervision of, the Department of Trade and Industry. Furthermore, the lower courts ruling to the effect that the PITCs authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. 1071 has been repealed by EO 133, is misplaced, and did not consider the import behind the issuance of the later presidential edict. The President could not have intended to deprive herself of the power to regulate the flow of trade between the Philippines and PROC under the two countries Memorandum of Understanding, a power which necessarily flows from her office as Chief Executive. In issuing Executive Order 133, the President intended merely to reorganize the Department of Trade and Industry to cope with the need of streamlined bureaucracy.[31] Thus, there is no real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the administrative functions among the administrative bodies affected by the edict, but not an abolition of executive power. Consistency in statutes as in executive issuances, is of prime importance, and, in the

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absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and reconcile them, and to adopt a constructions of a statutory provision which harmonizes and reconciles it with other statutory provisions.[32] The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the latter, since the law may be cumulative or a continuation of the old one. [33] Similarly, the grant of quasi-legislative powers in administrative bodies is not unconstitutional. Thus, as a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular field assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial powers in what is now not unreasonably called the fourth department of the government. [34] Evidently, in the exercise of such powers, the agency concerned must commonly interpret and apply contracts and determine the rights of private parties under such contracts. One thrust of the multiplication of administrative agencies is that the interpretation of contracts and the determination of private rights thereunder is no longer uniquely judicial function, exercisable only by our regular courts. (Antipolo Realty Corporation vs. National Housing Authority, G.R. No. L- 50444,August 31, 1987, 153 SCRA 399). With global trade and business becoming more intricate nay even with new discoveries in technology and electronics notwithstanding, the time has come to grapple with legislations and even judicial decisions aimed at resolving issues affecting not only individual rights but also activities of which foreign governments or entities may have interests. Thus, administrative policies and regulations must be devised to suit these changing business needs in a faster rate than to resort to traditional acts of the legislature. This tendency finds support in a well-stated work on the subject, viz.: Since legislatures had neither the time nor the knowledge to create detailed rules, however, it was soon clear that new governmental arrangements would be needed to handle the job of rule-making. The courts, moreover, many of them already congested, would have been swamped if they had to adjudicate all the controversies that the new legislation was bound to create; and the judges, already obliged to handle a great diversity of cases, would have been hard pressed to acquire the knowledge they needed to deal intelligently with all the new types of controversy. So the need to create a large number of specialized administrative agencies and to give them broader powers than administrators had traditionally exercised. These included the power to issue regulations having the force of law, and the power to hear and decide cases powers that had previously been reserved to the legislatures and the courts. (Houghteling/Pierce, Lawmaking by Administrative Agencies, p. 166.) The respondents likewise argue that PITC is not empowered to issue the Administrative Order because no grant of such power was made under the Trade Protocols of 1989, 1990 or 1991. We do not agree. The Trade Protocols aforesaid, are only the enumeration of the products and goods which the signatory countries have agreed to trade. They do not bestow any regulatory power, for executive power is vested in the Executive Department, [35] and it is for the latter to delegate the exercise of such power among its designated agencies. In sum, the PITC was legally empowered to issue Administrative Orders, as a valid exercise of a power ancillary to legislation. This does not imply however, that the subject Administrative Order is a valid exercise of such quasilegislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads:

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Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in thePhilippines), unless it is otherwise provided. xxx The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order. This court, in Tanada vs. Tuvera[36] stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers or, at present, directly conferred by the Constitution. Administrative rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation, Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the socalled letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. xxx We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133. Thus, even before the trade balancing measures issued by the petitioner were lifted by President Fidel V. Ramos, the same were never legally effective, and private respondents, therefore, cannot be made subject to them, because Administrative Order 89-08-01 embodying the same was never published, as mandated by law, for its effectivity. It was only on March 30, 1992 when the amendments to the said Administrative Order were filed in the UP Law Center, and published in the National Administrative Register as required by the Administrative Code of 1987. Finally, it is the declared Policy of the Government to develop and strengthen trade relations with the Peoples Republic of China. As declared by the President in EO 244 issued on May 12, 1995, continued coverage of the Peoples Republic of China by Letter of Instructions No. 444 is no longer consistent with the countrys national interest, as coursing RP-PROC trade through the PITC as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to trade. [37] Conformably with such avowed policy, any remnant of the restrained atmosphere of trading between the Philippines and PROC should be done away with, so as to allow economic growth and renewed trade relations with our neighbors to flourish and may be encouraged. ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to the effect that judgment is hereby rendered in favor of the private respondents, subject to the following MODIFICATIONS: 1) Enjoining the petitioner: a) From further charging the petitioners the Counter Export Development Service fee of 0.5% of the total value of the unliquidated or unfulfilled Undertakings of the private respondents;

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b) From further implementing the provisions of Administrative Order No. SOCPEC 89-08-01 and its appurtenant rules; and 2) Requiring petitioner to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without complying with the requirements prescribed in the above-stated issuances. SO ORDERED Regalado (Chairman), Romero, Puno, and Mendoza, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-54597 December 15, 1982 FELICIDAD ANZALDO, petitioner, vs. JACOBO C. CLAVE as Chairman of the Civil Service Commission and as Presidential Executive Assistant; JOSE A. R. MELO, as Commissioner of the Civil Service Commission, and EULALIA L. VENZON,respondents. Antonio P. Amistad for petitioner. Artemio E. Valenton for private respondent. Madamba, Deza & Almario Law Offices for respondent . Demegildo Laborte & Lazano Law Offices for respondent public officials.

AQUINO, J.: This is a controversy over the position of Science Research Supervisor II, whose occupant heads the Medical Research Department in the Biological Research Center of the National Institute of Science and Technology (NIST). Doctor Felicidad Estores-Anzaldo 55, seeks to annul the decision of Presidential Executive Assistant Jacobo C. Clave dated March 20, 1980, revoking her appointment dated January 5, 1978 as Science Research Supervisor IIand directing the appointment to that position of Doctor Eulalia L. Venzon, 48. The contested position became vacant in 1974 when its incumbent, Doctor Quintin Kintanar, became Director of the Biological Research Center. Doctor Kintanar recommended that Doctor Venzon be appointed to that position. Doctor Anzaldo protested against that recommendation. The NIST Reorganization Committee found her protest to be valid and meritorious (p. 34, Rollo). Because of that impasse, which the NIST Commissioner did not resolve, the position was not filled up. At the time the vacancy occurred, or on June 30, 1974, both Doctors Anzaldo and Venzon were holding similar positions in the Medical Research Department: that of Scientist Research Associate IV with an annual compensation of P12,013 per annum. Both were next-in-rank to the vacant position.

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Later, Doctor Pedro G. Afable, Vice-Chairman, became the Officer-in-Charge of the NIST. Effective January 5, 1978, he appointed Doctor Anzaldo to the contested position with compensation at P18,384 per annum. The appointment was approved by the Civil Service Commission. Doctor Afable, in his letter dated January 20, 1978, explained that the appointment was made after a thorough study and screening of the qualifications of Doctors Anzaldo and Venzon and upon the recommendation of the NIST Staff Evaluation Committee that gave 88 points to Doctor Anzaldo and 61 points to Doctor Venzon (p. 78, Rollo). Doctor Venzon in a letter dated January 23, 1978, addressed to Jacobo C. Clave, appealed to the Office of the President of the Philippines (pp. 139-40). The appeal was forwarded to the NIST Anzaldo to the contested position (p. 63, Rollo). The appeal-protest was later sent to the Civil Service Commission. Chairman Clave of the Civil Service Commission and Commissioner Jose A. R. Melo recommended in Resolution No. 1178 dated August 23, 1979 that Doctor Venzon be appointed to the contested position, a recommendation which is in conflict with the 1978 appointment of Doctor Anzaldo which was duly attested and approved by the Civil Service Commission (pp. 30 and 48, Rollo). The resolution was made pursuant to section 19(6) of the Civil Service Decree of the Philippines, Presidential Decree No. 807 (which took effect on October 6, 1975) and which provides that "before deciding a contested appointment, the Office of the President shall consult the Civil Service Commission." After the denial of her motion for the reconsideration of that resolution, or on January 5, 1980, Doctor Anzaldo appealed to the Office of the President of the Philippines. As stated earlier, Presidential Executive Assistant Clave (who was concurrently Chairman of the Civil Service Commission) in his decision of March 20, 1980 revoked Doctor Anzaldo's appointment and ruled that, "as recommended by the Civil Service Commission" (meaning Chairman Clave himself and Commissioner Melo), Doctor Venzon should be appointed to the contested position but that Doctor Anzaldo's appointment to the said position should be considered "valid and effective during the pendency" of Doctor Venzon's protest (p. 36, Rollo). In a resolution dated August 14, 1980, Presidential Executive Assistant Clave denied Doctor Anzaldo's motion for reconsideration. On August 25, 1980, she filed in this Court the instant special civil action of certiorari. What is manifestly anomalous and questionable about that decision of Presidential Executive Assistant Clave is that it is an implementation of Resolution No. 1178 dated August 23, 1979 signed by Jacobo C. Clave, as Chairman of the Civil Service Commission and concurred in by Commissioner Jose A. Melo. In that resolution, Commissioner Clave and Melo, acting for the Civil Service Commission, recommended that Doctor Venzon be appointed Science Research Supervisor II in place of Doctor Anzaldo. When Presidential Executive Assistant Clave said in his decision that he was "inclined to concur in the recommendation of the Civil Service Commission", what he meant was that he was concurring with Chairman Clave's recommendation: he was concurring with himself (p. 35, Rollo). It is evident that Doctor Anzaldo was denied due process of law when Presidential Executive Assistant Clave concurred with the recommendation of Chairman Clave of the Civil Service Commission. The case is analogous to Zambales Chromite Mining Co. vs. Court of Appeals, L-49711, November 7, 1979, 94 SCRA 261, where it was held that the decision of Secretary of Agriculture and Natural Resources Benjamin M. Gozon, affirming his own decision in a mining case as Director of Mines was void because it was rendered with grave abuse of discretion and was a mockery of administrative justice. Due process of law means fundamental fairness. It is not fair to Doctor Anzaldo that Presidential Executive Assistant Clave should decide whether his own recommendation as Chairman of the Civil Service Commission, as to who between Doctor Anzaldo and Doctor Venzon should be appointed Science Research Supervisor II, should be adopted by the President of the Philippines.

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Common sense and propriety dictate that the commissioner in the Civil Service Commission, who should be consulted by the Office of the President, should be a person different from the person in the Office of the President who would decide the appeal of the protestant in a contested appointment. In this case, the person who acted for the Office of the President is the same person in the Civil Service Commission who was consulted by the Office of the President: Jacobo C. Clave. The Civil Service Decree could not have contemplated that absurd situation for, as held in the Zambales Chromite case, that would not be fair to the appellant. We hold that respondent Clave committed a grave abuse of discretion in deciding the appeal in favor of Doctor Venzon. The appointing authority, Doctor Afable, acted in accordance with law and properly exercised his discretion in appointing Doctor Anzaldo to the contested position. Doctor Anzaldo finished the pharmacy course in 1950 in the College of Pharmacy, University of the Philippines. She obtained from the Centro Escolar University the degree of Master of Science in Pharmacy in 1962 and in 1965 the degree of Doctor of Pharmacy. Aside from her civil service eligibility as a pharmacist, she is a registered medical technologist and supervisor (unassembled). She started working in the NIST in 1954 and has served in that agency for about twenty-eight (28) years now. As already stated, in January, 1978, she was appointed to the contested Position of Science Research Supervisor II. Her present salary as Science Research Supervisor II, now known as Senior Science Research Specialist, is P 30,624 per annum after she was given a merit increase by Doctor Kintanar, effective July 1, 1981 (p. 259, Rollo). On the other hand, Doctor Venzon finished the medical course in the University of Santo Tomas in 1957. She started working in the NIST in 1960. She has been working in that agency for more than twenty-one (21) years.Doctor Anzaldo is senior to her in point of service. Considering that Doctor Anzaldo has competently and satisfactorily discharged the duties of the contested position for more than four (4) years now and that she is qualified for that position, her appointment should be upheld. Doctor Venzon's protest should be dismissed. WHEREFORE, the decision of respondent Clave dated March 20, 1980 is set aside, and petitioner Anzaldo's promotional appointment to the contested position is declared valid. No costs. SO ORDERED. Makasiar (Chairman), Guerrero, Abad Santos and Escolin, JJ., concur. Concepcion, Jr., J., took no part. De Castro, J., concur in the result. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-68474 February 11, 1986

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NUCLEAR FREE PHILIPPINE COALITION, ET AL., petitioners, vs. NATIONAL POWER CORPORATION, ET AL., respondents. G.R. No. 70632 February 11, 1986 LORENZO M. TAADA, ET AL., petitioners, vs. PHILIPPINE ATOMIC ENERGY COMMISSION, ET AL., respondents. RESOLUTION

PLANA, J.: I. In G.R. No. 70632, (1) petitioners question the competence of respondent PAEC Commissioners to pass judgment on the safety of the Philippine Nuclear Power Plant-1 PNPP-1 in PAEC Licensing Proceedings No. 1-77 without however seeking their ouster from office, although "proven competence" is one of the qualifications prescribed by law for PAEC Commissioners. (2) Petitioners also assail the validity of the motion (application) filed by the National Power Corporation (NPC) for the conversion of its construction permit into an operating license for PNPP-1 on the principal ground that it contained no information regarding the financial qualifications of NPC, its source of nuclear fuel, and insurance coverage for nuclear damage. (3) Petitioners finally charge respondent PAEC Commissioners with bias and prejudgment. 1. The first issue must be resolved against the petitioners. Where the validity of an appointment is not challenged in an appropriate proceeding, the question of competence is not within the field of judicial inquiry. If not considered a qualification the absence of which would vitiate the appointment, competence is a matter of judgment that is addressed solely to the appointing power. 2. As regards the legal sufficiency of the NPC motion for conversion, petitioners contend that the deficiencies they have indicated are jurisdictional infirmities which cannot be cured. The Court believes however that said deficiencies may be remedied and supplied in the course of the hearing before PAEC. For this purpose, respondent-applicant NPC may submit pertinent testimonies and documents when the PAEC hearing is re-opened, subject to controversion and counterproof of herein petitioners. 3. There is merit in the charge of bias and prejudgment. The PAEC pamphlets- particularly Annexes "JJ", "KK" and "LL" of the petition (G.R. 70632)-clearly indicate the pre-judgment that PNPP-1 is safe. Exhibit "JJ" is an official PAEC 1985 pamphlet entitled "The Philippine Nuclear Power Plant-l." It gives an overview specifically of PNPP-1, lauds the safety of nuclear power, and concludes with a statement of the benefits to be derived when the PNPP-1 start operation. . . .When the PNPP-1 starts operating, it will generate a power of 620 megawatts enough to supply 15 percent of the electricity needs in Luzon. This is estimated to result in savings of US $ 160 million a year, representing the amount of oil displaced. Aside from being a reliable source of electricity, nuclear power has an excellect safety record and has been found to result in lower occupational and public risks than fossil fired (coal or oil) stations. (p. 6. Emphasis supplied.) The second pamphlet (Exh. "KK") is entitled "NUCLEAR POWER-SAFE CLEAN ECONOMICAL AND AVAILABLE." On the surface, it merely propagates the use of nuclear power in general. But its numerous

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specific references to the PNPP-1 "which will be operational in 1985." and its advantages give credence to the charge that Exhibit "KK" was in reality designed to project PNPP-1 as safe, among other When Exhibit "KK" was published, PNPP-1 was the only nuclear plant under construction in the Philippines. It is the Philippine nuclear plant specifically mentioned therein that was to be operational in 1985. Therefore, when the pamphlet states that nuclear power is working now in other countries and "it should work for us too" because it is "safe" and economical", it is logical to conclude that the reference is to no other than the nuclear power to be generated at the PNPP-1 Also worth quoting is the following passage in Exhibit "KK" which sweepingly vouch safes all nuclear power plants, including the PNPP-1: No member of the public has ever been injured during the last 25 years that commercial nuclear reactors have been generating electricity. As is to be expected in any complex system as nuclear power plants, there have been failure of equipment and human errors. However in every instance, the safety equipment designed into the nuclear reactor self terminated the accident without injury to the operators or the public. The Three Mile Island Incident, serious as it was, did not result in the loss of life nor did it result in the exposure of anyone beyond permissible limits. The designers of nuclear plants assume failure to occur, and provide multiple safeguards protection against every conceivable malfunction (P. 7, Emphasis supplied.) The third pamphlet (Exh. "LL") is entitled NUCLEAR POWER PLANT and ENVIRONMENTAL SAFETY. Speaking specifically of the PNPP-1 it categorically states that the Bataan nuclear plant will not adversely affect the public or the flora or fauna in the area. One of the stated reasons in support of the conclusion is And environmentally, a nuclear power plant emits only insignificant amount of radioactivity to the environment. It does not cause chemical pollution of air or water, it does not emit sulfur dioxide or nitrogen oxides like plants fired by fossil fuels such as coal and oil, Besides, even coal fired plants may emits radioactive particles of uranium and thorium because these may be found naturally associated with coal deposits. Comparatively therefore, a nucelar power plant is the cleanest and the safest environmently no other technology in modern times has been developed with so dominant concern for public safety as nuclear power. (p. 8) Respondent PAEC Commissioners cannot escape responsibility for these official pamphlets. Exhibit "JJ" was published in 1985, when respondent Commissioners had already been appointed to their present positions. Exhibits "KK" and "LL" were issued earlier, but the majority of respondent Commissioners even then were already occupying positions of responsibility in the PAEC. Commissioner Manuel Eugenio was Acting Chief of the PAEC Department on Nuclear Technology and Engineering from June, 1980 to July, 1984; Commissioner Quirino Navarro was PAEC Chief Science Research Specialist from May, 1980 to September, 1984-, and Commissioner Alejandro Ver Albano was PAEC Deputy Commissioner from March, 1980 to September, 1984. Additionally, the stubborn fact remains unrebutted that Exhibits "J.J." "KK" and "LL" continued to be distributed by PAEC as late as March, 1985. In other words their official distribution continued after the filing of NPC's motion for conversion on June 27, 1984 and even after PAEC had issued its order dated February 26, 1985 formally admitting the said motion for conversion. At any rate, even if it be assumed that there are some doubts regarding the conclusion that there has been a prejudgment of the safety of PNPP-1 the doubts should be resolved in favor of a course of action that will assure an unquestionably objective inquiry, considering the circumstances thereof and the number of people vitally interested therein.

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Having thus prejudged the safety of the PNPP-1 respondent PAEC Commissioners would be acting with grave abuse of discretion amounting to lack of jurisdiction were they to sit in judgment upon the safety of the plant, absent the requisite objectivity that must characterize such an important inquiry. The Court therefore Resolved to RESTRAIN respondent PAEC Commissioners from further acting in PAEC Licensing Proceedings No. 1-77. II. In G.R. No. 68474, acting on the motion filed therein dated June 8, 1985 to order PAEC to reconsider its orders of May 31 and June 5, 1985, the urgent motion for mandatory injunction and/or restraining order dated August 3, 1985, the second urgent motion for mandatory injunction dated August 12, 1985, and the various pleadings and other documents submitted by the parties relative thereto, and considering the paramount need of a reasonable assurance that the operation of PNPP-1 will not pose an undue risk to the health and safety of the people, which dictates that the conduct of the inquiry into the safety aspects of PNPP-1 be characterized by sufficient latitude, the better to achieve the end in view, unfettered by technical rules of evidence (Republic Act 5207, section 34), and in keeping with the requirements of due process in administrative proceedings, the Court Resolved to ORDER respondent PAEC (once reconstituted) to re-open the hearing on PNPP-1 so as to give petitioners sufficient time to complete their cross-examination of the expert witnesses on quality assurance, to cross-examine the witnesses that petitioners have failed to cross-examine on and after August 9, 1985, and to complete the presentation of their evidence, for which purpose, respondent PAEC shall issue the necessary subpoena and subpoena duces tecum to compel the attendance of relevant witnesses and/or the production of relevant documents. For the said purposes, the PAEC may prescribe a time schedule which shall reasonably assure the parties sufficient latitude to adequately present their case consistently with the requirements of dispatch. lt is understood that the PAEC may give NPC the opportunity to correct or supply deficiencies in this application or evidence in support thereof. Justices Teehankee, Concepcion Jr., Melencio-Herrera, De la Fuente and Cuevas concur. Justices Escolin and Alampay took no part.

U.S. Supreme Court TUMEY v. STATE OF OHIO, 273 U.S. 510 (1927) 273 U.S. 510 TUMEY v. STATE OF OHIO. No. 527. Argued Nov. 29, 30, 1926. Decided March 7, 1927. [273 U.S. 510, 511] Messrs. Edward P. Moulinier, James L. Magrish, and Harry H. Shafer, all of Cincinnati, Ohio, for plaintiff in error. [273 U.S. 510, 513] Messrs. Wayne B. Wheeler and Edward Dunford, both of Washington, D. C ., for the State of Ohio. [273 U.S. 510, 514] Mr. Chief Justice TAFT delivered the opinion of the Court. The question in this case is whether certain statutes of Ohio, in providing for the trial by the mayor of a village of one accused of violating the Prohibition Act of the state (Gen. Code, Ohio, 6212-13 et seq.), deprive the accused of due process of law and violate the Fourteenth Amendment to the Federal

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Constitu- [273 U.S. 510, 515] tion, because of the pecuniary and other interest which those statutes give the mayor in the result of the trial. Tumey, the plaintiff in error hereafter to be called the defendant, was arrested and brought before Mayor Pugh, of the village of North College Hill, charged with unlawfully possessing intoxicating liquor. He moved for his dismissal because of the disqualification of the mayor to try him under the Fourteenth Amendment. The mayor denied the motion, proceeded to the trial, convicted the defendant of unlawfully possessing intoxicating liquor within Hamilton county as charged, fined him $100, and ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of exceptions and carried the case on error to the court of common pleas of Hamilton county. That court heard the case and reversed the judgment, on the ground that the mayor was disqualified as claimed. 25 Ohio Nisi Prius (N. S.) 580. The state sought review by the Court of Appeals of the First Appellate District of Ohio, which reversed the common pleas and affirmed the judgment of the mayor. 23 Ohio Law Reporter, 634. On May 4, 1926, the state Supreme Court refused defendant's application to require the Court of Appeals to certify its record in the case. The defendant then filed a petition in error in that court as of right, asking that the judgment of the mayor's court and of the appellate court be reversed on constitutional grounds. On May 11, 1926, the Supreme Court adjudged that the petition be dismissed for the reason that no debatable constitutional question was involved in the cause. The judgment was then brought here upon a writ of error allowed by the Chief Justice of the state Supreme Court, to which it was rightly directed. Matthews v. Huwe, Treasurer, 269 U.S. 262 , 46 S. Ct. 108; Hetrick v. Village of Lindsey, 265 U.S. 384 , 44 S. Ct. 486. This brings us to the merits of the case. [273 U.S. 510, 516] The defendant was arrested and charged with the unlawful possession of intoxicating liquor at White Oak, another village in Hamilton county, Ohio, on a warrant issued by the mayor of North College Hill. The mayor acted under the sections of the state Prohibition Act and Ordinance No. 125 of the village of North College Hill adopted by pursuance thereof. Section 6212-15, General Code, Ohio, provides that: 'No person shall, after the passage of this act ... manufacture , ... possess, ... any intoxicating liquors. ...' Section 6212-17 provides that: '... Any person who violates the provisions of this act (G. C. 6212-13 to 6212-20) for a first offense shall be fined not less than one hundred dollars nor more than one thousand dollars; for a second offense he shall be fined not less than three hundred dollars nor more than two thousand dollars; for a third and each subsequent offense, he shall be fined not less than five hundred dollars nor more than two thousand dollars and be imprisoned in the state penitentiary not less than one year nor more than five years. ...' The mayor has authority, which he exercised in this case, to order that the person sentenced to pay a fine shall remain in prison until the fine and costs are paid. At the time of this sentence, the prisoner received a credit of 60 cents a day for each day's imprisonment. By a recent amendment, that credit has increased to $1.50 a day Sections 13716, 13717, Gen. Code Ohio. Section 6212-18 provides, in part, that: 'Any justice of the peace, mayor, municipal or police judge, probate or common pleas judge within the county with whom the affidavit is filed charging a violation of any of the provisions of this act (G. C . 621213 to 6212-20) when the offense is alleged to have been committed in the county in which such mayor, justice of the peace, or judge [273 U.S. 510, 517] may be sitting, shall have final jurisdiction to try such cases upon such affidavits without a jury, unless imprisonment is a part to the penalty, but error may be prosecuted to the judgment of such mayor, justice of the peace, or judge as herein provided.' Error from the mayor's court lies to the court of common pleas of the county, and a bill of exceptions is necessary to present questions arising on the evidence. Sections 10359, 10361, General Code Ohio. The appellate review in respect to evidence is such that the judgment can only be set aside by the reviewing court on the ground that it is so clearly unsupported by the weight of the evidence as to indicate some misapprehension or mistake or bias on the part of the trial court or a wilful disregard of duties. Datesh v. State, 23 Ohio Nisi Prius (N. S.) 273. Section 6212-19, provides that:

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'Money arising from fines and forfeited bonds shall be paid one-half into the state treasury credited to the general revenue fund, one- half to the treasury of the township, municipality or county where the prosecution is held, according as to whether the officer hearing the case is a township, municipal, or county officer.' Section 6212-37 provides that: 'The council of any city or village may, by ordinance, authorize the use of any part of the fines collected for the violation of any law prohibiting the manufacture and sale of intoxicating liquors, for the purpose of hiring attorneys, detectives, or secret service officers to secure the enforcement of such prohibition law. And such council are hereby authorized to appropriate not more than five hundred dollars annually from the general revenue fund, for the purpose of enforcing the law prohibiting the manufacture and sale of intoxicating liquors, when there are no funds available from the fines collected for the violation of such prohibitory law.' 109 Ohio Laws, p. 9, 17. Under the authority of the last section, the village council of North College Hill passed Ordinance No. 125, as follows: [273 U.S. 510, 518] 'An ordinance to provide for compensation to be paid from the secret service funds of the village of North College Hill, Hamilton county, Ohio, created by authority of section 6212-37, of the General Code of Ohio, to detectives, secret service officers, deputy marshals' and attorneys' fees, costs, etc., for services in securing evidence necessary to conviction and prosecuting violation of the law of the state of Ohio prohibiting the liquor traffic. 'Be it ordained by the council of the village of North College Hill, Hamilton county, Ohio: 'Section I. That fifty per cent. of all moneys hereafter paid into the treasury to said village of North College Hill, Ohio, that is one- half of the share of all fines collected and paid into and belonging to said village of North College Hill, Ohio, received from fines collected under any law of the state of Ohio, prohibiting the liquor traffic, shall constitute a separate fund to be called the secret service fund to be used for the purpose of securing the enforcement of any prohibition law. 'Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive as compensation for their services in securing the evidence necessary to secure the conviction of persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent. of the fine collected, and other fees allowed by law. 'Section III. That the attorney at law of record prosecuting persons charged with violating the law of the state of Ohio, prohibiting the liquor traffic, shall receive as compensation for legal services an amount equal to 10 per cent. of the fine collected, in all cases, whether the plea be guilty or not guilty. 'Section IV. That detectives and secret service officers shall receive as compensation for their services in securing the evidence necessary to secure the conviction of [273 U.S. 510, 519] persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent. of the fine collected. 'Section V. That the mayor of the village of North College Hill, Ohio, shall receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. 'Section VI. This ordinance is hereby declared to be an emergency ordinance, necessary to the immediate preservation of the public peace and safety, made necessary by reason of the flagrant violation of the laws of Ohio, enacted to prohibit traffic in intoxicating liquors, and shall be in effect from and after this passage.' The duties of the mayor of a village in Ohio are primarily executive. Section 4248 of the General Code of Ohio provides as follows: 'Section 4248. The executive power and authority of villages shall be vested in a mayor, clerk, treasurer, marshal, street commissioner, and such other officers and departments thereof as are created by law. 'Section 4255. ... He (the mayor) shall be the chief conservator of the peace within the corporation. ... He shall be the president of the council, and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie. 'Section 4258. ... He shall see that all ordinances, by-laws and resolutions of the council are faithfully obeyed and enforced. ... 'Section 4259. The mayor shall communicate to council from time to time a statement of the finances of the municipality, and such other information relating thereto and to the general condition of the affairs of the municipality as he deems proper or as may be required by council. 'Section 4262. The mayor shall supervise the conduct of the officers of the corporation. ...' [273 U.S. 510, 520] The fees which the mayor and marshal received in this case came to them by virtue of the general

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statutes of the state applying to all state cases, liquor and otherwise. The mayor was entitled to hold the legal fees taxed in his favor. General Code Ohio, 4270; State v. Nolte, 111 Ohio St. 486, 146 N. E. 51, 37 A. L. R. 1426. Moreover, the North College Hill village council sought to remove all doubt on this point by providing ( section 5, Ordinance 125, supra), that he should receive or retain the amount of his costs in each case in addition to his regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him, except by the defendant, if convicted. There is, therefore, no way by which the mayor may be paid for his service as judge, if he does not convict those who are brought before him; nor is there any fund from which marshals, inspectors and detectives can be paid for their services in arresting and bringing to trial and furnishing the evidence to convict in such cases, except it be from the initial $500 which the village may vote from its treasury to set the court going or from a fund created by the fines thereafter collected from convicted defendants. By an act of 1913 (103 O. L. 290), the mayor's court in villages in Hamilton county, and in half a dozen other counties with large cities, was deprived of jurisdiction to hear and punish misdemeanors committed in the county beyond the limits of the corporation. The Prohibition Act, known as the Crabbe Act, adopted in 1920 (108 O. L. pt. 1, p. 388, and part 2, p. 1182) changed this and gave to the mayor of every village in the state jurisdiction within the county in which it was situate to try violations of that act. Counsel for the state in their brief explain the vesting by state Legislatures of this country of jurisdiction in village courts as follows: 'The purpose of extending the jurisdiction in the first instance was to break up places of outlawry that were located on the municipal boundary just outside of the city. The Legislature also [273 U.S. 510, 521] faced the situation that in some of the cities the law enforcement agencies were failing to perform their duty, and therefore, in order that those forces that believe in enforcement and upholding of law might have some courts through which process could be had, it gave to mayors county-wide jurisdiction.' It was further pointed out in argument that the system by which the fines to be collected were to be divided between the state and the village was for the proper purpose of stimulating the activities of the village officers to such due enforcement. The village of North College Hill, in Hamilton county, Ohio, is shown by the federal census to have a population of 1,104. That of Hamilton county, including the city of Cincinnati, is more than half a million. The evidence discloses that Mayor Pugh came to office after Ordinance No. 125 was adopted, and that there was a division of public sentiment in the village as to whether the ordinance should continue in effect. A petition opposing it and signed by a majority of the voters was presented to Mayor Pugh. To this the mayor answered with the declaration that, if the village was in need of finances, he was in favor of and would carry on 'the liquor court,' as it was popularly called, but that, if the court was not needed for village financial reasons, he would not do so. It appears that substantial sums were expended out of the village treasury from the fund made up of the fines thus collected for village improvements and repairs. The mayor was the owner of a house in the village. Between May 11, 1923, and December 31, 1923, the total amount of fines for violation of the prohibition law collected by this village court was upwards of $20,000, from which the state received $8,992.50, North College Hill received $4,471.25 for its general uses, $2,697.25 was placed to the credit of the village safety fund, and the balance was put in the secret service fund. Out of this, the person acting as prosecutor in the liquor court re- [273 U.S. 510, 522] ceived in that period $1,796.50; the deputy marshals, inspectors and other employees, including the detectives, received $2,697.75; and $438.50 was paid for costs in transporting prisoners, serving writs and other services in connection with the trial of these cases. Mayor Pugh received $696.35 from these liquor cases during that period as his fees and costs, in addition to his regular salary. That officers acting in a judicial or quasi judicial capacity are disqualified by their interest in the controversy to be decided is of course the general rule. Dimes v. Grand Junction Canal, 3 H. L. C. 759; Gregory v. Railroad, 4 Ohio St. 675; Pearce v. Atwood, 13 Mass. 324; Taylor v. Commissioners, 105 Mass. 225; Kentish Artillery v. Gardiner, 15 R. I. 296, 3 A. 662; Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114; State v. Crane, 36 N. J. Law, 394; Railroad Company v. Howard, 20 Mich. 18; Stockwell v. Township, 22 Mich. 341; Findley v. Smith, 42 W. Va. 299, 26 S. E. 370; Nettleton's Appeal, 28 Conn. 268; Cooley's Constitutional Limitation (7th Ed.) p. 592 et seq. Nice questions, however, often arise as to what the degree or nature of the interest must be. One is in respect to the effect of the membership of a judge in a class of taxpayers or others to be affected by a principle of law, statutory or constitutional, to be applied in a case between other

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parties and in which the judge has no other interest. Then the circumstance that there is no judge not equally disqualified to act in such a case has been held to affect the question. Wheeling v. Black, 25 W. Va. 266, 280; Peck v. Freeholders of Essex, 20 N. J. Law, 457; Dimes v. Grand Junction Canal, 3 H. L. C. 759 ( see Baron Parke's Answer for the Judges, pp. 785, 787); Year Book, 8 Henry VI, 19; s. c. 2 Roll. Abridg. 93; Evans v. Gore, 253 U.S. 245, 247 , 40 S. Ct. 550, 11 A. L. R. 519; Stuart v. Mechanics' & Farmers' Bank, 19 Johns. (N. Y.) 496; Ranger v. Railroad, 5 H. L. C. 72. We are not embarrassed by such considerations here, for there were available in this case other judicial officers who had [273 U.S. 510, 523] no disqualification, either by reason of the character of their compensation or their relation to the village government. All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W. Va. 266, 270. But it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case. The mayor of the village of North College Hill, Ohio, has a direct personal pecuniary interest in convicting the defendant who came before him for trial, in the $12 of costs imposed in his behalf, which he would not have received if the defendant had been acquitted. This was not exceptional, but was the result of the normal operation of the law and the ordinance. Counsel for the state do not deny this, but assert the validity of the practice as an exception to the general rule. They rely upon the cases of Ownbey v. Morgan, 256 U.S. 94 , 41 S. Ct. 433, 17 A. L. R. 873; Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276-280. These cases show that in determining what due process of law is, under the Fifth or Fourteenth Amendment, the court must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, which were shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. Counsel contend that in Ohio and in other states, in the economy which it is found necessary to maintain in the administration of justice in the inferior courts by justices of the peace and by judicial officers of like jurisdiction, the only compensation which the state and county[273 U.S. 510, 524] and township can afford is the fees and costs earned by them, and that such compensation is so small that it is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty, or as prejudicing the defendant in securing justice. even though the magistrate will receive nothing if the defendant is not convicted. We have been referred to no cases at common law in England, prior to the separation of colonies from the mother country, showing a practice that inferior judicial officers were dependant upon the conviction of the defendant for receiving their compensation. Indeed, in analogous cases it is very clear that the slightest pecuniary interest of any officer, judicial or quasi judicial, in the resolving of the subject-matter which he was to decide, rendered the decision voidable. Bonham's Case, 8 Coke, 118a; same case, 2 Brownlow & Goldesborough's Reports, 255; City of London v. Wood, 12 Modern Reports, 669, 687; Day v. Savage, Hobart, 85, 87; Hesketh v. Braddock, 3 Burrows, 1847, 1856, 1857, 1858 As early as 12 Richard II, A. D. 1388, it was provided that there should be a commission of the justices of the peace, with six justices in the county once a quarter, which might sit for three days, and that the justices should receive four shillings a day 'as wages,' to be paid by the sheriffs out of a fund make up of fines and amercements, and that that fund should be added to out of the fines and amercements from the Courts of the Lords of the Franchises which were hundred courts allowed by the king by grant to individuals. It was required that the justices of the peace should be knights, esquires, or gentlemen of the land, qualifications that were not modified until 1906. The wages paid were used 'to defray their common diet,' and they soon became obsolete. Holdsworth's History of English Law, 288, 289. The wages paid were not dependant on con- [273 U.S. 510, 525] viction of the defendant. They were paid at a time when the distinction between torts and criminal cases was not clear. Holdworth, vol. 2, pp. 363, 365; Id. vol. 3, p. 328. And they came from a fund which was created by fines and amercements collected from both sides in the controversy. There was always a plaintiff, whether in the action for a tort or the prosecution for an offense. In the latter he was called the prosecutor. If he failed to prove his case, whether civil or criminal, he was subject to amercement pro falso clamore, while, if he succeeded, the defendant was in misericordia. See

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Commonwealth v. Johnson, 5 Serg. & R. (Pa.) 195, 198; Musser v. Good, 11 Serg. & R. (Pa.) 247. Thus in the outcome some one would be amerced in every case, and the amercements generally went to the crown, and the fund was considerable. The statute of Richard II remained on the statute book until 1855 when it was repealed by St. 18 and 19 Victoria. Meantime the hundred courts by franchise had largely disappeared. The wages referred to were not part of the costs. The costs at common law were the amounts paid either by the plaintiff or prosecutor or by the defendant for the witnesses or services of the court officers. Burn's Justice, vol. 1, p. 628; Chitty's Criminal Law (4th Ed. 1841) vol. 1, p. 829. See, also, St. 14 George III, c. 20, 1774. For hundreds of years the justices of the peace of England seem not to have received compensation for court work. Instead of that they were required, upon entering upon the office, to pay certain fees. Holdsworth, vol. 1, p. 289; 19 Halsbury's Laws of England, 1152. Local judges in towns are paid salaries. There was at the common law the greatest sensitiveness over the existence of any pecuniary interest however small or infinitesimal in the justices of the peace. In Hawkins, 2 Pleas of the Crown, Bk. 2, ch. 8, 68, 69 we find the following: 'The general rule of law certainly is that justices of the peace ought not to execute their office in their own case (citing 1 Salk. 396); and even in cases where such [273 U.S. 510, 526] proceeding seems indispensably necessary, as in being publicly assaulted or personally abused, or their authority otherwise contemned while in the execution of their duty, yet if another justice be present, his assistance should be required to punish the offender (Stra. 240). 'And by the common law, if an order of removal were made by two justices, and one of them was an inhabitant of the parish from which the pauper was removed, such order was illegal and bad, on the ground that the justice who was an inhabitant, was interested, as being liable to the poor's rate. Rex v. Great Chart, Burr. S. C. 194, Stra. 1173.' And this strict principle, unless there is relief by the statute, is seen in modern cases. Queen v. Recorder of Cambridge, 8 Ellis & Blackburn, 637; Regina v. Hammond, 9 Law Times Reports (N. S.) 423; The Queen v. Rand, Law Reports, 1 Queen's Bench, 230; Queen v. Gaisford (1892) 1 Queen's Bench Division, 381; 19 Halsbury's Laws of England, 1156. There was then no usage at common law by which justices of the peace or inferior judicial officers were paid fees on condition that they convicted the defendants, and such a practice certainly cannot find support as due process of law in English precedent. It may be that the principle as stated in Blackstone, book 3, p. 400, that the king shall neither pay nor receive costs, because it is the king's prerogative not to pay them to a subject and is beneath his dignity to receive them, was misunderstood and led, as suggested by Mr. Lewis in his edition of Blackstone (see Lewis' Blackstone, note No. 60, vol. III, p. 400) to the practice in some states in minor cases of allowing inferior judges no compensation, except by fees collected of the convicted defendant, but, whether it did or not, the principle relied on did not support the practice. That practice has prevailed and still prevails in Arkansas, Kentucky, Nebraska, North Carolina, Georgia, Ohio, and Texas, and it seems [273 U.S. 510, 527] at one time to have obtained in Indiana, Oregon, Illinois, and Alabama. In two of these states only has the question been considered by their courts, and it has been held that provision for payment to the judge of fees only in case of conviction does not disqualify him. Those are Bennett v. State, 4 Tex. App. 72; Wellmaker v. Terrell, 3 Ga. App. 791, 60 S. E. 464. There is no discussion in either of the question of due process of law. The existence of a statute authorizing the practice seems to have been the controlling consideration. Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88, 10 P. 261, the judge was paid a regular salary fixed by law. The fund out of which this was paid was increased by fees and fines collected in his court, but there is no evidence that payment of his salary was dependent on the amount of his collections or convictions. In Herbert v. Baltimore County, 97 Md. 639, 55 A. 376, the action was by a justice of the peace against a county for services in criminal cases. A new law limited him to $10 a month. The statement of the case does not distinctly show that in convictions he would have had a larger compensation from his costs collected out of the defendant, but this may be assumed from the argument. His contention was that the new law was invalid, because it did not give the defendants before him due process. The court held against him, chiefly on the ground that he must be satisfied with the compensation the law afforded him. Responding to his argument that the new law was invalid, because justice would be induced to convict when in justice they should acquit, the court said:

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'We cannot recognize the force of this suggestion, founded as it is upon the assumption that the justices will violate their oaths and the duties of their office, and not upon anything that the law authorizes to be done.' So far as the case goes, it is an authority for the contention of the state, but the issue thus raised was not[273 U.S. 510, 528] considered at length, and was not one which in such an action the court would be patient to hear pressed by the justice, whose constitutional rights were not affected. Tyler v. Court, 179 U.S. 405, 409 , 21 S. Ct. 206; California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 318 , 26 S. Ct. 100. In the case of Probasco v. Raine, Auditor, 50 Ohio St. 378, 34 N. E. 536, the question arose whether the fee of 4 per cent. payable to county auditors for placing omitted property on the duplicate list for taxation, which required investigation and quasi judicial consideration, was invalid. The court held that it was not, and that the objection urged there could not be based on the argument that a man could not be a judge in his own case; that the auditor had no case to be adjudged, but that, on the contrary, he was the taxing officer, before whom other parties were cited to appear and show cause why they should not bear their equal burden of taxation. The court said that the action of the auditor was not final, so as to cut off further inquiry, but that the whole case might be gone into anew by proper proceedings in court. An exactly opposite conclusion was reached by the United States Circuit Court for the Northern District of Ohio in Meyers v. Shields, 61 F. 713, 725, et seq. In other states than those above mentioned the minor courts are paid for their services by the state or county, regardless of acquittal or conviction, except that in Virginia the minor courts receive one-half of the usual fees where there is acquittal. Four states have put into their Constitutions a provision that the state must pay the costs in such cases in case of acquittal. They are California, Florida, Louisiana, and South Carolina. The strict common-law rule was adopted in this country as one to be enforced where nothing but the common law controlled, and citizens and taxpayers have been held incompetent to sit in suits against the municipal corporation of which they have been residents. Diveny v. [273 U.S. 510, 529] Elmira, 51 N. Y. 506; Corwein v. Hames, 11 Johns. (N. Y.) 76; Clark v. Lamb, 2 Allen (Mass.) 396; Dively v. Cedar Falls, 21 Iowa, 565; Fulweiler v. Louis, 61 Mo. 479; Petition of New Boston, 49 N. H. 328; Commonwealth v. McLane, 4 Gray (Mass.) 427; Fine v. St. Louis Public Schools, 30 Mo. 166, 173. With other courts, however, and with the Legislatures, the strict rule seemed to be inconvenient, impracticable, and unnecessary, and the view was taken that such remote or minute interest in the litigation might be declared by the Legislature not to be a reason for disqualification of a judge or juror. A case, much cited, in which this conclusion was reached, and in which the old English corporation cases were considered, was that of City Council v. Pepper, 1 Rich. (S. C.) 364. The recorder of the city of Charleston sentenced a nonresident of the city for violation of a city ordinance requiring him to take out a license for what he did, or to pay a fine not exceeding $20. The contention was that the defendant was a noncorporator and nonresident, and not subject to the jurisdiction of the city court; that the recorder was a corporator and interested in the penalty, and therefore was not competent to try the cause. The court said ( page 366) in respect to Hesketh v. Braddock, 3 Burr. 1847, supra: 'It will be remarked that that case depends altogether upon the common law, and if the city court depended upon the same for its jurisdiction, the objection might be fatal. But the establishment and jurisdiction of the city court commences with the act of 1801. ... By that act it is clothed with the power of trying all offences against the by-laws of the city, and for that purpose is given concurrent jurisdiction with the Court of Sessions. This grant of power is from all the people of the state, through their Legislature, and surely they have the power to dispense with the common-law objection, that the cor- [273 U.S. 510, 530] porators were interested, and ought not to be intrusted with the enforcement of their laws against others. The authority given to the city court to try all offenders against the city ordinances, impliedly declares, that notwithstanding the common-law objection, it was right had proper to give it the power to enforce the city laws against all offenders. That there was great reason in this cannot be doubted, when it is remembered that the interest of the corporators is so minute as not to be even thought of, by sheriff, juror or judge. It is very much like the interest which similar officers would feel in enforcing a state law, the sanction of which was a penalty. The sum thus to be recovered goes in exoneration of some part of the burden of government to which every citizen is subjected; but such an interest has no effect upon the mind. It is too slight to excite prejudice against a defendant. The same thing is the case here. For the judge,

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sheriff and jurors, are members of a corporation of many thousand members. What interest, of value, have they in a fine of $20? It would put a most eminent calculator to great trouble to ascertain the very minute grain of interest which each of these gentlemen might have. To remove so shadowy and slight an objection, the Legislature thought proper to clothe the city court, consisting of its judge, clerk, sheriff and jurors, with authority to try the defendant, and he cannot now object to it.' And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v. Reed, 1 Gray (Mass.) 472, 475; Thomas v. Mt. Vernon, 9 Ohio, 290; Commissioners v. Lytle, 3 Ohio, 289; Wheeling v. Black, 25 W. Va. 266, 280; Board of Justices v. Fennimore, 1 N. J. Law, 190; Foreman v. Marianna, 43 Ark. 324; Cartersville v. Lyon, 69 Ga. 577; Omaha v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pick. (Mass.) 104; Commonwealth v. Emery, 11 Cush. (Mass.) 406; Bennett [273 U.S. 510, 531] v. State, 4 Tex. App. 72; Welmaker v. Terrell, 3 Ga. App. 791, 60 S. E. 464; State v. Craig, 80 Me. 85, 13 A. 129. Mr. Justice Cooley, in his work on Constitutional Limitations (7th edition, page 594), points out that the real ground of the ruling in these cases is that: 'Interest is so remote, trifling, and insignificant that it may fairly be supposed to be incapable of affecting the judgment of or of influencing the conduct of an individual. And where penalties are imposed, to be recovered only in a municipal court, the judge or jurors in which would be interested as corporators in the recovery, the law providing for such recovery must be regarded as precluding the objection of interest.' But the learned judge then proceeds: 'But, except in cases resting upon such reasons, we do not see how the Legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority.' Referring, then, to a remark in the case of the Matter of Leefe, 2 Barb. Ch. (N. Y.) 39, that the people of the state, when framing their Constitution, might possibly establish so great an anomaly, if they saw fit, the learned author says: 'Even this must be deemed doubtful, since the adoption of the fourteenth article of the Amendments to the federal Constitution, which denies to the state the right to deprive one of life, liberty, or property, without due process of law.' From this review we conclude that a system by which an inferior judge is paid for his service only when he convicts the defendant has not become so embedded by custom in the general practice, either at common law or in this country, that it can be regarded as due process of law, unless the costs usually imposed are so small that they may be properly ignored as within the maxim 'de minimis non curat lex.' The mayor received for his fees and costs in the present case $12, and from such costs under the Prohibition Act [273 U.S. 510, 532] for seven months he made about $100 a month, in addition to his salary. We cannot regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling, or insignificant interest. It is certainly not fair to each defendant brought before the mayor for the careful and judicial consideration of his guilt or innocence that the prospect of such a prospective loss by the mayor should weigh against his aquittal. These are not cases in which the penalties and the costs are negligible. The field of jurisdiction is not that of a small community, engaged in enforcing its own local regulations. The court is a state agency, imposing substantial punishment, and the cases to be considered are gathered from the whole county by the energy of the village marshals and detectives regularly employed by the village for the purpose. It is not to be treated as a mere village tribunal for village peccadilloes. There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it, but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law. But the pecuniary interest of the mayor in the result of his judgment is not the only reason for holding that due process of law is denied to the defendant here. The statutes were drawn to stimulate small municipalities, in the country part of counties in which there are large cities, to organize and maintain courts to try persons accused of violations of the Prohibition Act everywhere in the county. The inducement is offered of dividing between [273 U.S. 510, 533] the state and the village the large fines

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provided by the law for its violations. The trial is to be had before a mayor without a jury, without opportunity for retrial, and with a review confined to questions of law presented by a bill of exceptions, with no opportunity by the reviewing court to set aside the judgment on the weighing of evidence, unless it should appear to be so manifestly against the evidence as to indicate mistake, bias, or willful disregard of duty by the trial court. It specifically authorizes the village to employ detectives, deputy marshals, and other assistants to detect crime of this kind all over the county, and to bring offenders before the mayor's court, and it offers to the village council and its officers a means of substantially adding to the income of the village to relieve it from further taxation. The mayor is the chief executive of the village. He supervises all the other executive officers. He is charged with the business of looking after the finances of the village. It appears from the evidence in this case, and would be plain if the evidence did not show it, that the law is calculated to awaken the interest of all those in the village charged with the responsibility of raising the public money and expending it, in the pecuniarily successful conduct of such a court. The mayor represents the village and cannot escape his representative capacity. On the other hand, he is given the judicial duty, first, of determining whether the defendant is guilty at all; and, second, having found his guilt, to measure his punishment between $100 as a minimum and $1,000 as a maximum for first offenses, and $ 300 as a minimum and $2,000 as a maximum for second offenses. With his interest as mayor in the financial condition of the village and his responsibility therefor, might not a defendant with reason say that he feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to help his village by conviction and a heavy fine? The old English cases cited above in the [273 U.S. 510, 534] days of Coke and Holt and Mansfield are not nearly so strong. A situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him. City of Boston v. Baldwin, 139 Mass. 315, 1 N. E. 417; Florida ex rel. Colcord v. Young, 31 Fla. 594, 12 So. 673, 19 L. R. A. 636, 34 Am. St. Rep. 41. It is, of course, so common to vest the mayor of villages with inferior judicial functions that the mere union of the executive power and the judicial power in him cannot be said to violate due process of law. The minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment by that fact. The difference between such a case and the plan and operation of the statutes before us is so plain as not to call for further elaboration. Counsel for the state argue that it has been decided by this court that the Legislature of a state may provide such system of courts as it chooses, that there is nothing in the Fourteenth Amendment that requires a jury trial for any offender, that it may give such territorial jurisdiction to its courts as it sees fit, and therefore that there is nothing sinister or constitutionally invalid in giving to a village mayor the jurisdiction of a justice of the peace to try misdemeanors committed anywhere in the county, even though the mayor presides over a village of 1, 100 people and exercises jurisdiction over offenses committed in a county of 500,000. This is true and is established by the decisions of this court in Missouri v. Lewis, 101 U.S. 22 , 30; In re Claasen, 140 U.S. 200 , 11 S. Ct. 735. See, also, Carey v. State, 70 Ohio St. 121, 70 N. E. 955. It is also correctly pointed out that it is completely within the power of the Legislature to dispose of the fines collected [273 U.S. 510, 535] in criminal cases as it will, and it may therefore divide the fines as it does here, one-half of the state and one-half to the village by whose mayor they are imposed and collected. It is further said with truth that the Legislature of a state may and often ought to stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the state and the people. The Legislature may offer rewards or a percentage of the recovery to informers. United States v. Murphy & Morgan, 16 Pet. 203. It may authorize the employment of detectives. But these principles do not at all affect the question whether the state, by the operation of the statutes we have considered, has not vested the judicial power in on who by reason of his interest, both as an individual and as chief executive of the village, is disqualified to exercise it in the trial of the defendant. It is finally argued that the evidence shows clearly that the defendant was guilty and that he was only fined $100 which was the minimum amount, and therefore that he cannot complain of a lack of due process, either in his conviction or in the amount of the judgment. The plea was not guilty and he was convicted. No matter what the evidence was against him, he had the right to have an impartial judge. He seasonably raised the objection, and was entitled to halt the trial because of the disqualification of the judge, which existed both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village. There were thus presented at the outset both features of the disqualification.

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The judgment of the Supreme Court of Ohio must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Judgment reversed. EN BANC

[G.R. No. 103501-03. February 17, 1997]

LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES,respondents.

[G.R. No. 103507. February 17, 1997]

ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents. DECISION FRANCISCO, J.: Through their separate petitions for review, [1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, [2] as well as the Resolution dated December 20, 1991[3] denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence: (1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day ofreclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. (2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day ofreclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. (3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a

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fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00). In addition, they shall both suffer the penalty of perpetual special disqualification from public office. A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large. There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read: That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx

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That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. Gathered from the documentary and testimonial evidence are the following essential antecedents: Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit: Office of the President of the Philippines Malacaang January 8, 1986 MEMO TO: The General Manager Manila International Airport Authority You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is appreciated. (Sgd.) FERDINAND MARCOS.[4] The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full: MEMORANDUM F o r : The President

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From Date Subject

: Minister Roberto V. Ongpin : 7 January 1985 : Approval of Supplemental Contracts and

Request for Partial Deferment of Repayment of PNCCs Advances for MIA Development Project May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows: 1. 2. Supplemental Contract No. 12 Package Contract No. 2 Supplemental Contract No. 13 Package Contract No. 2 4. Supplemental Contract No. 15 5. Supplemental Contract No. 16 Package Contract No. 2 6. Supplemental Contract No. 17 Package Contract No. 2 7. Supplemental Contract No. 18 Package Contract No. 2 8. Supplemental Contract No. 3 Package Contract No. II 16,617,655.49 6,110,115.75 8,821,731.08 233,561.22 3. Supplemental Contract No. 14 4,586,610.80 1,699,862.69 P11,106,600.95 5,758,961.52

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984) In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million. At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation: Approved by Price Escalation Committee (PEC) P 1.9 million but pended for lack of funds Endorsed by project consultants and currently 30.7 million being evaluated by PEC Submitted by PNCC directly to PEC and currently 66.5 million under evaluation Total P99.1 million There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

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The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract. To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. (Sgd.) ROBERTO V. ONGPIN Minister[5] In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release ofP55 Million of MIAA funds by means of three (3) withdrawals. The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch of MIAA funds, to issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received. Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986. The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuenas co-signatory to the letter- request for a managers check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads: Malacaang Manila January 30, 1986 RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates: Jan. 10 - P25,000,000.00 Jan. 16 Jan. 30 25,000,000.00 5,000,000.00

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(Sgd.) Fe Roa-Gimenez The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, out of the ordinary and not based on the normal procedure. Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986. The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million. With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors [6] committed by the Sandiganbayan for this Courts consideration. It appears, however, that at the core of their plea that we acquit them are the following: 1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and 2) they acted in good faith. Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that: x x x accused x x x conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of x x x. But it would appear that they were convicted of malversation by negligence. In this connection, the Courts attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for reconsideration) wherein the Sandiganbayan said: x x x xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC. It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Underscoring supplied.) To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that: 1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time. 2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation.[7]

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3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.[8] We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Cabello v. Sandiganbayan[9] where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x. In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. xxx Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. x x x. The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significant malversation cases of US v. Catolico[10] and US v. Elvia,[11] the Court stressed that: To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person performing the act complained of is innocent.

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The rule was reiterated in People v. Pacana,[12] although this case involved falsification of public documents and estafa: Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.[13] The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously shown. In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation. First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuenas superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. [15] In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to an order issued by a superior for some lawful purpose.[16] The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said: Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly: a.) for the approval of eight Supplemental Contracts; and b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCCs escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds. Thus: xxx To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

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While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants. If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos Memo was based) they would only be for a sum of up toP34.5 million.[17] x x V. x x xxx Pres. Marcos order to Tabuena dated January 8, 1986 baseless. x x

Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but it was actually baseless. This is easy to see. Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit 1, however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of January 7, 1985 could not therefore serve as a basis for the Presidents order to withdraw P55 million.[18] Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that: ATTY ANDRES Q A xxx ATTY. ANDRES Q A Can you tell us, Mr. Witness, what these obligations represent? These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir. What do you mean by escalation? Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir. xxx ATTY ANDRES Q When you said these are accounts receivable, do I understand from you that these are due and demandable? xxx x x x.[20] WITNESS Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables from MIA as of December 31, 1985? As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit 7-a, sir, P102,475,392.35. xxx x x x.[19]

Q A

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Yes, sir.[21]

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. [22] Such is the ruling in Nassif v. People[23] the facts of which, in brief, are as follows: Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word sold by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal.[24] Second. There is no denying that the disbursement, which Tabuena admitted as out of the ordinary, did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit: a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA) b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that: There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million.[25] c) failure to protest (Sec. 106, P.D. 1445) But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his immediate compliance with the directive that he forward to the Presidents Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in Villacorta v. People[26] where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages, leave allowances, etc., held that: Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in good faith mainly to government personnel, some of them working at the provincial auditors and the provincial treasurers offices. And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable. Likewise controlling is US v. Elvia[27] where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinions reference to certain provisions in the revised Manual on Certificate of Settlement and Balances - apparently made to underscore Tabuenas personal accountability, as agency head, for MIAA funds - would all the more support the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of civilly liable to describe the kind of sanction imposable on a superior officer who performs his duties with bad faith, malice or gross negligence and on a subordinate officer or employee who commits willful or negligent acts x x x which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors.

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Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of conversion: Conversion, as necessary element of offense of embezzlement, being the fraudulent appropriation to ones own use of anothers property which does not necessarily mean to ones personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to his own use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106) - At p. 207, Words and Phrases, Permanent Edition 9A. Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owners right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141) - At page 168, id. xxx xxx xxx

The words convert and misappropriate connote an act of using or disposing of anothers property as if it were ones own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to ones own use includes not only conversion to ones personal advantage but every attempt to dispose of the property of another without right. People vs. Webber, 57 O.G. p. 2933, 2937 By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use. People vs. Luntao, 50 O.G. p. 1182, 1183[28] We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that: Good faith in the payment of public funds relieves a public officer from the crime of malversation. xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to

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believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable.[29] Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan,[31] both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedos conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt: No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof. [32] In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Courts observation therein, that: The petitioners alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed. [33] The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of theP55 Million of the MIAA funds. This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion: We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was independent and fearless. We know it was not; even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity. [34]

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But what appears to be a more compelling reason for their acquittal is the violation of the accuseds basic constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs words, is more important than securing a conviction based on a violation of the rights of the accused.[35] While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. [36] Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes questions and even more than the combined total of direct and cross-examination questions asked by the counsels). After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions.[37] The trend intensified during Tabuenas turn on the witness stand. Questions from the court after Tabuenas cross-examination totalled sixty-seven (67).[38]This is more than five times Prosecutor Viernes questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirtyone (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded a total of fortyone (41) questions.[39] But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation. [40] (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.)

(MONERA) (As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions). CROSS-EXAMINATION BY PROS. VIERNES Q A You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities? I dont have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.

*AJ AMORES *Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount? A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables. And, in fact, we have been following up for payment.

*Q This determination of the escalation costs was it accepted as the correct fgure by MIA?

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I dont have any document as to the acceptance by MIA, your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos.

*PJ GARCHITORENA *Q Basically, the letter of Mr. Ongpin is to what effect? A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor. The details show that most of the accounts refer to our escalations, your Honor.

*Q It has nothing to do with the implementation of the escalation costs? A *Q Does that indicate the computation for escalations were already billed or you do not have any proof of that? A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor.

*AJ AMORES *Q Were there partial payments made by MIA on these escalation billings? A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor.

*PJ GARCHITORENA *Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company? WITNESS A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA *Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash? A Yes, your Honor. *Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts? A A Yes, your Honor. The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987. *Q This is as of December 31, 1985?

*Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985? WITNESS A Yes, your Honor.

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*Q And your records indicate when these adjustments and payments were made? A Yes, your Honor. *AJ AMORES *Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments? A Yes, your Honor. *Q How were these payments made before February 1986, in case or check, if there were payments made? A The P44 million payments was in the form of assignments, your Honor. *PJ GARCHITORENA *Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings? A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger.

*AJ AMORES *Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985? A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor. I do not know, your Honor.

*Q Do you know how the manner of this payment in cash was made by MIA? A *PJ GARCHITORENA *Q But your records will indicate that? A A The records will indicate that, your Honor. Yes, your Honor. *Q Except that you were not asked to bring them? *Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985? A Yes, your Honor. *PJ GARCHITORENA *Q Subsequent thereto, we are talking merely of about P44 million? A A Yes, your Honor, as subsequent settlements. Yes, your Honor. *Q After December 31, 1985? *Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment? A Yes, your Honor.

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*AJ AMORES *Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check? A A I would venture to say it was by check, your Honor. Yes, your Honor. *Q Which is the safest way to do it? *PJ GARCHITORENA *Q And the business way? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits 7 and 7-a? The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir. This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit 7 are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985? The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings.

WITNESS A Q

*PJ GARCHITORENA *Q We are talking about the letter of Minister Ongpin? A A The letter of Minister Ongpin refers to escalation billings, sir. The letter is dated January 7, 1985, your Honor. *Q As of what date? PJ GARCHITORENA Continue. PROS. VIERNES Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA? Yes, sir. In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to PNCC by MIA for the months of January to June 1986?

WITNESS A Q

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A Q A

Yes, sir. And neither was the amount of P22 million remitted to PNCC by MIA? Yes, sir.

PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ AMORES *Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA? WITNESS A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that was on September 25, 1986. After February 1986, your Honor. Per record there is none appearing, your Honor.

*Q But that is already under the present administration? A A *Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC? *PJ GARCHITORENA *Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin? A A A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor. There appears also P23 million as credit, that is a form of settlement, your Honor. Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million. *Q After December 31, 1985? *Q This is as of September 25?

*Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA? A A A Yes, your Honor. Yes, your Honor. I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor. *Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million? *Q Is there a payback agreement?

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*AJ AMORES *Q As of now, is this obligation of MIA, now NAIA, paid to PNCC? A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million.

PJ GARCHITORENA Any clarifications you would like to make Mr. Estebal? ATTY ESTEBAL None, your Honor. PJ GARCHITORENA Mr. Viernes? PROS VIERNES No more, your Honor. PJ GARCHITORENA The witness is excused. Thank you very much Mr. Monera. x x x.[41]

(TABUENA) (In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.) CROSS-EXAMINATION BY PROS. VIERNES Q A Q A Q A The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions? Three times, sir. And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez? Yes, sir. It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez? Yes, sir.

*PJ GARCHITORENA *Q So January 30 is the date of the last delivery? A I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date placed by Mrs. Gimenez. Yes, your Honor. Yes, your Honor.

*Q Are you telling us that this Exhibit 3 was incorrectly dated? A A *Q Because the third delivery was on January 31st and yet the receipt was dated January 30? *Q When was Exhibit 3 delivered actually by Mrs. Gimenez?

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January 31st, your Honor.

PJ GARCHITORENA Continue. PROS VIERNES Q A Q A Q A Q A Q A You did not go to Malacaang on January 30, 1986? Yes, sir, I did not. Do you know at whose instance this Exhibit 3 was prepared? I asked for it, sir. You asked for it on January 31, 1986 when you made the last delivery? Yes, sir. Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez? Yes, sir. This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt? No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.

*PJ GARCHITORENA *Q What you are saying is, you do not know who typed that receipt? WITNESS A A A Yes, your Honor. Yes, your Honor, because she knows how to type. Yes, your Honor. *Q Are you making an assumption that she typed that receipt? *Q Your assumption is that she typed it herself? PJ GARCHITORENA Proceed. PROS. VIERNES Q A Q A Q A Q A This receipt was prepared on January 31, although it is dated January 30? Yes, sir, because I was there on January 31st. In what particular place did Mrs. Gimenez sign this Exhibit 3? In her office at Aguado, sir. Did you actually see Mrs. Gimenez signing this receipt Exhibit 3? No, sir, I did not. She was inside her room. So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed? Yes, sir.

*AJ HERMOSISIMA *Q So, how did you know this was the signature of Mrs. Gimenez?

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WITNESS A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me.

*Q So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful? A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor. That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena. WITNESS Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q A Q A Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit 3? Nobody, sir. I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous? Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.

PJ GARCHITORENA

PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ HERMOSISIMA *Q Why did you not ask for a receipt on the first and second deliveries? A Because I know that the delivery was not complete yet, your Honor. *PJ GARCHITORENA *Q So you know that the total amount to be delivered was P55 million? A Yes, your Honor. PJ GARCHITORENA

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Response by Mr. Peralta to the testimony of Mr. Tabuena. ATTY. ESTEBAL We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor. *AJ DEL ROSARIO *Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more precisely, who handed you this memorandum? A A Mrs. Fe Roa Gimenez, your Honor. The money was in payment for the debt of the MIA Authority to PNCC, your Honor. *Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked? *Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher?Calrky A The instruction to me was to give it to the Office of the President, your Honor. *PJ GARCHITORENA *Q Be that as it may, why was there no voucher to cover this particular disbursement? A I was just told to bring it to the Office of the President, your Honor. *AJ DEL ROSARIO *Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity? WITNESS A No, your Honor, I was just following the Order to me of the President. *PJ GARCHITORENA *Q So the Order was out of the ordinary? A Yes, your Honor. *AJ DEL ROSARIO *Q Did you file any written protest with the manner with which such payment was being ordered? A A No, your Honor. Because with that instruction of the President to me, I followed, your Honor. *Q Why not? *Q Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this matter with you? A A Yes, your Honor. He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor. *Q When was that?

*PJ GARCHITORENA *Q By I OWE, you mean the MIAA? WITNESS

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Yes, your Honor.

*AJ DEL ROSARIO *Q And what did you say in this discussion you had with him? A A I just said, Yes, sir, I will do it/ No, your Honor. *Q Were you the one who asked for a memorandum to be signed by him? *Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation? A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it. Yes, your Honor. Yes, your Honor.

*Q Is this the first time you received such a memorandum from the President? A A *Q And was that the last time also that you received such a memorandum? *Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure? A: No, sir. *AJ DEL ROSARIO *Q Why did you not ask? A I was just ordered to do this thing, your Honor. *AJ HERMOSISIMA *Q You said there was an I OWE YOU? A A Yes, your Honor. All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount. It was not covered, your Honor. *Q Where is that I OWE YOU now?

*Q Was this payment covered by receipt from the PNCC? A *Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment? A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor. I think it is partly government, your Honor.

*Q Is the PNCC a private corporation or government entity? A *PJ GARCHITORENA *Q That is the former CDCP? A Yes, your Honor. *AJ HERMOSISIMA

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*Q Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang? WITNESS A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your Honor. Yes, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC? A *Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board? A PNCC was the one that constructed the MIA, your Honor. *Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA? A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor. I was ordered by the President to do that, your Honor.

*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC? A *Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor? A I saw nothing wrong with that because that is coming from the President, your Honor. *Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary? A I was ordered by the President, your Honor. *PJ GARCHITORENA *Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime? A A A A Yes, your Honor. Yes, your Honor. I became Manager of MIA way back, late 1968, your Honor. Yes, your Honor. *Q Prior to 1986? *Q Can you tell us when you became the Manager of MIA? *Q Long before the MIA was constituted as an independent authority? *PJ GARCHITORENA *Q And by 1986, you have been running the MIA for 18 years? WITNESS A A Yes, your Honor. No, your Honor. *Q And prior to your joining the MIA, did you ever work for the government?

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*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment with the government? A Yes, your Honor. *Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also? A A A A I was also the Chairman of the Games and Amusement Board, your Honor. I was, your Honor. Yes, your Honor. I was also Commissioner of the Game Fowl Commission, your Honor. *Q But you were not the executive or operating officer of the Games and Amusement Board? *Q As Chairman you were running the Games and Amusement Board? *Q What else, what other government positions did you occupy that time? *PJ GARCHITORENA *Q That is the cockfighting? WITNESS A A A A Yes, your Honor. Yes, your Honor. Yes, your Honor. No more, your Honor. *Q Here, you were just a member of the Board? *Q So you were not running the commission? *Q Any other entity? *Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer? A A A Yes, your Honor. Yes, your Honor. I forgot his name, but he retired already, your Honor. *Q And you were a commissioner only of the Game Fowl Commission? *Q Who was running the commission at that time? *Q All of us who joined the government, sooner or later, meet with our Resident COA representative? A Yes, your Honor. *PJ GARCHITORENA *Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: Chairman or Manager, this cannot be. And we learn later on that COA has reasons for its procedure and we learn to adopt to them? WITNESS A Yes, your Honor.

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*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply? A Yes, your Honor. *Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers? A A Yes, your Honor. Yes, your Honor. *Q Sometimes, regardless of the amount? *Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, What will I do here? A I did not, your Honor. *PJ GARCHITORENA *Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly? WITNESS A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor.

*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Managers checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Managers checks? A Yes, your Honor. *Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so? A Yes, your Honor. *Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that? A Yes, your Honor. *PJ GARCHITORENA *Q Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time? WITNESS A No, your Honor. *PJ GARCHITORENA I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that? A Yes, your Honor.

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*Q And usually our best defense is that these activities are properly documented? A Yes, your Honor. *Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car? A A Yes, your Honor. I did not think of that at that time, your Honor. *Q Is that not quite a fearful experience to you? *PJ GARCHITORENA *Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car? WITNESS A We have security at that time your Honor. ATTY. ANDRES Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car. *PJ GARCHITORENA Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience? A As I have said, your Honor, I never thought of that. PJ GARCHITORENA Thank you very much, Mr. Tabuena. You are excused. x x x.[42]

(PERALTA) (He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Managers Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.) CROSS-EXAMINATION BY PROS VIERNES Q A Q A Q A Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Managers check in the amount of P5 million? At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time. As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Managers checks by the PNB? That is the only occasion I signed, sir. Did you say you were ordered by Mr. Tabuena to sign the request? Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for the issuance of Managers check in favor of Mr. Luis Tabuena.

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PROS VIERNES Q A Was there a separate written order for you to co-sign with Mr. Tabuena? Yes, sir, an order was given to me by Mr. Tabuena. WITNESS *PJ GARCHITORENA Was that marked in evidence? WITNESS Yes, your Honor. *PJ GARCHITORENA What exhibit? WITNESS I have here a copy, your Honor. This was the order and it was marked as exhibit N. PROS VIERNES It was marked as Exhibit M, your Honor. Q A How did you know there was an existing liability of MIAA in favor of PNCC at that time? Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor. When was that Financial Statement prepared? I prepared it around January 22 or 24, something like that, of 1986, sir. Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year? Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting.

Q A Q A

*PJ GARCHITORENA *Q This matter of preparing Financial Statement was not an annual activity but a monthly activity? A Yes, your Honor. *Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request?

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A Q A

When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it. It was Mr. Tabuena who showed you the letter of Minister Ongpin? Yes, sir.

*PJ GARCHITORENA And that will be Exhibit? ATTY. ANDRES Exhibit 2 and 2-A, your Honor. PROS VIERNES Q A Q A Q A Q A Q A You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor? Yes, sir. Why was it necessary for you to go with him on that occasion? Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes. Did you actually participate in the counting of the money by bundles? Yes, sir. Bundles of how much per bundle? If I remember right, the bundles consisted of P100s and P50s, sir. No P20s and P10s? Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA *Q If there were other denominations, you can not recall? A Q A Q A Q A Yes, your Honor. In how many boxes were those bills placed? The P5 million were placed in two (2) peerless boxes, sir. And you also went with Mr. Tabuena to Aguado? No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA. But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the afternoon? I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 oclock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time. And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date? Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacaang. And you yourself, returned to your office at MIA? PROS VIERNES

Q A

PROS VIERNES Q

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WITNESS A Q A Q A Yes, sir. Until what time do you hold office at the MIA? Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir. So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office at MIA? Yes, sir.

PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ESTEBAL No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ DEL ROSARIO *Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash? WITNESS A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor.

*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers? A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also. Yes, your Honor. We have a copy, your Honor.

*Q Was such payment of P5 million covered by a Journal Voucher? A A *Q Did you present that Journal Voucher here in Court? *Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment? A We have a copy of the Journal Voucher, your Honor. *Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA? A The payment of P5 million was recorded in a Journal Voucher, your Honor. *PJ GARCHITORENA *Q In other words, the recording was made directly to the Journal? WITNESS

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A A

Yes, your Honor. Yes, your Honor, there was none.

*Q There are no other separate documents as part of the application for Managers Check? *AJ DEL ROSARIO *Q After the payment was made, did your office receive any receipt from PNCC? A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher? A A Your Honor, a Journal Voucher was prepared for that. Inasmuch as this was a request for Managers check, no disbursement voucher was prepared, your Honor. *Q How about a disbursement voucher?

*AJ DEL ROSARIO *Q Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose? ATTY. ESTEBAL With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper. *AJ DEL ROSARIO I will withdraw the question. *PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I dont think there was any basis, your Honor. *PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. *AJ HERMOSISIMA *Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities? A Your Honor, what we did was to send a request for a Managers check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA *Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher? WITNESS

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Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor.

*AJ HERMOSISIMA *Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager? A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider that legal? ATTY. ESTEBAL With due respect to the Honorable Justice, the question calls for a conclusion of the witness. *PJ GARCHITORENA Considering that the witness is an expert, witness may answer. WITNESS A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA *Q Are you saying that this transaction was made on the basis of that P.D. which you referred to? A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check? A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. WITNESS A Yes, your Honor. *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? A Yes, your Honor. *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL

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With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? A Yes, your Honor, because at that time we have also a recorded liability of P27 million. *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? WITNESS When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability. *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

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WITNESS A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? WITNESS A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another.

*PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? A I think the liability was duly recorded and appropriations to pay the amount is..... (interrupted) *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? A No, your Honor. *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? A I was aware of that Decree, your Honor. *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? A No, your Honor. *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? A Yes, your Honor. *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? A Yes, your Honor.

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*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? A Yes, your Honor. *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? A Yes, your Honor. *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? WITNESS A A Yes, your Honor. Yes, your Honor. *Q In your case, you would be the counter check for Mr. Tabuena? *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? A Yes, your Honor. *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? A Yes, your Honor. *Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? A Yes, your Honor. *AJ DEL ROSARIO *Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed? A Yes, your Honor. *Q Did you submit a written protest to the manner in which such amount was being disposed of? A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction? A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor.

PJ GARCHITORENA Thank you very much Mr. Peralta, you are excused. x x x. [43] This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. [44] But not only should his examination be limited to asking clarificatory questions,[45] the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial. [46] Here, these limitations were not

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observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latters questions in length. The cold neutrality of an impartial judge requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was unduly disturbed with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on numbers alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with numbers without necessarily realizing the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on numbers to bolster this. It was pointed out in the De Sisto case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judges questions to the defendant De Sisto totalled 306, the prosecutors 347, and the defense counsels, 201. After referring to these figures, the court stated: . . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendants efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the courts belief in the defendants probable guilt to permit the jury freely to perform its own function of independent determination of the facts. x x x The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a nonjury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta: AJ DEL ROSARIO Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes? ATTY. ESTEBAL With due respect to the Honorable Justice, We are e ground that it is improper. AJ DEL ROSARIO I will withdraw the question. PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and any basis, Your Honor. PJ GARCHITORENA secondly, I dont think there was objecting to the question on th

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Considering the withdrawal of the question, just make the objection on record. Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the Presidents office and the then forthcoming presidential snap election? In another instance, consider the following questions of Presiding Justice Garchitorena: *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? xxx *Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. xxx *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? xxx *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

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*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? xxx *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

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*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? *Q In your case, you would be the counter check for Mr. Tabuena? *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? *Q And this is something you know by the nature of your position and because you are a Certified Public Accountant?[47] How can these questions be considered clarificatory when they clearly border more on crossexamination questions? Thus, the Dissenting Opinions focus on the distinction between the two kinds of trial to justify the Sandiganbayans active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that: A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution.[48] We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society. [49] Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing....This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate....[50] While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays....The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.[51] The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable.[52]

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He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. [53] The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases....[54] Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the peoples faith in our courts. [55] Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.[56] We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking good faith. It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioners acquittal must also be present in subsequent cases. Furthermore, as between a mere apprehension of a dangerous precedent and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent. WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE. SO ORDERED. Narvasa, C.J., Regalado, Bellosillo, Vitug, Kapunan, Mendoza, and Torres, JJ., concur. Padilla, Davide, Romero, Puno, and Panganiban, JJ., dissent. Hermosisima, Jr., J., took no part being a signatory to SB decision.

[1]

Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of the Revised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The petitions were ordered consolidated by the Court in an En Banc Resolution dated October 1, 1992. Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices Garchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del Rosario. Promulgated on January 10, 1992.

[2]

[3]

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[4] [5] [6]

Records, Vol. I, p. 26. Records, Vol. I, pp. 119-120. Tabuena avers that the Sandiganbayan:

A Erred and committed reviewable error in ruling that petitioners withdrawal of the P55 Million was not for a lawful purpose or for a lawful debt. In the process, theSandiganbayan clearly ignored several pieces of evidence submitted by petitioner, and instead misapprehended the full import of the Ongpin Memorandum (Exh. 2, as attachment of Annex I), to which the Marcos order to pay referred (Exh. 1, attachment to Annex I). In so concluding, the Sandiganbayan laid its conclusions open to review as its judgment is in effect based on misapprehension of facts (Cruz vs. Sosing, L-4875, November 27, 1953); and in ignoring several material pieces of evidence abused its discretion (Buyco vs. People, 51 OG 7927). B Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. 2 and 2-A, See Annex I), and the Marcos approval thereof (Exh. 1, id.) did not support the withdrawal and payment of monies by petitioner. In so concluding, the Sandiganbayan again clearly misapprehended the Ongpin and Marcos Memoranda, and the ledger of PNCC. C Erred and committed reviewable error in ruling that petitioner was in bad faith when he complied with the presidential order to pay; in thus concluding the Sandiganbayanindulged in speculations and conjectures (Joaquin vs. Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs. Alco, L-11139, April 23, 1958); theSandiganbayan also erred in not ruling that petitioner is entitled to justifying circumstance under Par. 6, Art. 11, and/or the exempting circumstance provided under Pars. 5 and 6 of Art. 12 of the Revised Penal Code. D Erred and committed reviewable error in ruling that petitioner was unable to account for the money. In so doing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico, 18 Phil. 504. It also erred in holding petitioner accountable for acts not charged in the amended informations, and in so doing convicted him without jurisdiction. E Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided by Sec. 17, Article VII of the 1973 Constitution. The Sandiganbayantherefore had no jurisdiction to try the cases. F Erred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioners guilt was submitted by the prosecution. In so doing, the Sandiganbayan wrongly shifted the burden of proof and denied petitioner the benefits of the presumption of innocence, of Secs. 1 and 2, Rule 131, and the absence of demand under the last paragraph of Art. 217 of the Revised Penal Code. Peralta for his part claim that: 1. Respondent court grossly and seriously erred in convicting herein accused despite the absence of proof that he allegedly converted the funds withdrawn to his own personal benefit as charged in the information in glaring violation of his basic constitutional right to be presumed innocent. 2. Respondent also grossly erred in convicting herein accused on the basis of mere assumptions, conjectures and inferences devoid of factual basis in another court likewise grossly and seriously erred in convicting herein accused for a crime not charged in the information again in violation of another constitutional right, that is the right to be informed of the accusation or right to due process. 3. Respondent court serious and glaring violation of his right to be presumed innocent until his guilt is established by proof beyond reasonable doubt. 4. Respondent court finally erred in refusing to recognize the applicability of the immunity provision embodied in the Constitution and of the justifying circumstance of obedience to a lawful order as valid defenses in this case.

[7]

Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474. Republic of the Philippines SUPREME COURT Manila

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SECOND DIVISION

G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274,respondents.

PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila.

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During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said

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dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:

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(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counteraffidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness

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of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator

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may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in

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United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall.

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At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian

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talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled:30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

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Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he

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may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

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In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determinepersonally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and

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inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act

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No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our

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laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in

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section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case ofMooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding,

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criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the

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discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED. Regalado, J., concurs. Mendoza, J., concurs in the result. Narvasa, C.J., is on leave. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 130442 April 6, 2000

THE SUMMARY DISMISSAL BOARD AND THE REGIONAL APPELLATE BOARD, PNP, REGION VI, ILOILO CITY, petitioners, vs. C/INSP. LAZARO TORCITA, respondent. GONZAGA-REYES, J.: Before us is a Petition for Review by way of Certiorari of the Decision of the Court of Appeals 1 in CA-G.R. SP No. 43872, which set aside the Decision of the Regional Director (RD) of the Philippine National Police (PNP) of Iloilo City, through its Summary Dismissal Board (SDB), suspending herein respondent C/Insp. Lazaro Torcita from the service for twenty (20) days for "Simple Irregularity in the Performance of Duty under Section 41 of R.A. 6975." The antecedents are as follows: On July 6, 1994, the following verified complaints were filed against C/Insp. Lazaro Torcita, herein respondent, by Manuel Puey, Jesus Puey, Alex Edwin del Rosario: 1) Administrative Case Nr. SDHB "B6"-94-01- for Conduct Unbecoming of a Police Officer filed by Jesus H. Puey in a complaint dated June 25, 1994;

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2) Admin. Case Nr. SDHB "B6"-94-02- for Grave Threats filed by Jesus H. Puey; 3) Admin. Case Nr. SDHB "B6"-94-03 for Abuse of Authority and Illegal Search filed by Jesus H. Puey; 4) Admin. Case Nr. SDHB "B6"-94-04 for Abuse of Authority and Violation of Domicile filed by Jesus H. Puey; 5) Admin. Case Nr. SDHB "B6"-94-05 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Jesus H. Puey; 6) Admin. Case Nr. SDHB "B6" -94-06 for Conduct Unbecoming of a Police Officer filed by Manuel H. Puey; 7) Admin. Case Nr. SDHB "B6" -94-07 for Illegal Search filed by Manuel H. Puey; 8) Admin. Case Nr. SDHB "B6" -94-08 for Grave Abuse of Authority and Violation of Domicile filed by Manuel Puey; 9) Admin. Case Nr. SDHB "B6" -94-09 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Manuel Puey; 10) Admin. Case Nr. SDHB "B6" -94-10 for Conduct Unbecoming of a Police Officer filed by Alex Edwin del Rosario; 11) Admin. Case Nr. SDHB "B6" -94-11 for Abuse of Authority and Grave Threats filed by Alex Edwin del Rosario; 12) Admin. Case Nr. SDHB "B6" -94-12 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Alex Edwin del Rosario. The twelve administrative complaints were the subject of administrative hearings before the Summary Dismissal Board of the PNP. At the pre-trial, the parties and their respective counsels agreed that the twelve cases shall be consolidated into one "major complaint" for "conduct unbecoming of a police officer" under Par. e, Sec. 3, Rule II, Memorandum Circular No. 92-006 pursuant to RA 6975 2 . The statement of the case by the Summary Dismissal Board is as follows: That sometime last April 26, 1994, after attending the birthday party of Miss Jessie Vasquez Alex Edwin del Rosario, together with Rosita Bistal, Carmen Braganza and Cristita Dawa boarded Mazda pick up with plate nr. HHP-808 and driven by Reynaldo Consejo, proceeded towards the direction of Cadiz City. While nearing Crossing Cadiz in the vicinity of Sitio Puting Tubig, the aforementioned Mazda pick-up driven by Consejo overtook a red Cortina Ford driven by Major Lazaro Torcita; That on board the motor vehicle driven by Torcita were three females sitted at the back; That Major Lazaro Torcita signaled the passengers of the Mazda pick-up to stop, however, the driver of the Mazda pick-up refused to abide by the signal and instead accelerated and proceeded to Hda. Aimee without stopping. That upon reaching Hda. Aimee Major Lazaro Torcita, entered the compound and was approached by two persons in civilian clothes which prevented him from further proceeding; Moments after, the patrol car of Cadiz PNP arrived and together with Major Torcita, approached Jesus H. Puey and Alex Edwin del Rosario, inquiring as to the identity of the persons who accosted him;

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The complainants alleged that Major Torcita approached and entered the compound of Hda. Aimee, very drunk, with back-up vehicle full of armed policemen, confronted Jesus H. Puey and Alex Edwin del Rosario as who stopped him at the gate, shouting in a very, very loud voice, invectives and remarks; That such act of Major Lazaro Torcita constitute Conduct Unbecoming of an Officer not worth of respect; In his answer, the respondent, Lazaro R. Torcita, while admitting that he entered the premises of the complainants, the same was done on a regular, lawful and proper way for he was in the performance of his official duties in pursuing the suspect who committed a crime in his presence; From the affidavits of the witnesses and testimonies presented by the complainants and the counter affidavits and the counter testimonies of the respondent, the ISSUE before the Board is whether the respondent is guilty of Conduct Unbecoming of a Police Officer under Republic Act 6975 as implemented by Memorandum Circular 92-006 of the National Police Commission under Rule II Section 3, Paragraph C, committed thru a series of illegal acts consisting of Grave Threats, Illegal Search, Abuse of Authority, Violation of Domicile and Violation of COMELEC Gun Ban. The complainant presented documentary evidence and witnesses Congressman Manuel Puey, Rosita Bistal, Alex Edwin del Rosario and Reynaldo Consejo. Respondent Torcita testified in his behalf and presented Nehru Java, a member of the PNP Cadiz, who was with him during the incident in question. The Summary Dismissal Board made the following findings of facts: That sometime last April 26, 1994, at about 10:30 in the evening, a red Cortina Ford, driven by C/Insp. Lazaro H. Torcita, with his aide, PO2 Nehru Java, in the front seat and his wife with two ladies at the backseat, were overtaken by a mazda pick-up, in the vicinity of Sitio Puting Tubig, about 10 kilometers from crossing Cadiz, owned by Congressman Manuel Puey and driven Reynaldo Consejo with four (4) passengers in the persons of Alex Edwin del Rosario, the executive assistant and financial analyst of Congressman Puey, three (3) helpers employed under the Congressman, namely, Rosita Bistal, Carmen Braganza and Cristina Dawa; That both parties came from the Municipality of Victorias where they attended some social functions on the occasion of the town fiesta; After the mazda pick-up has overtaken the red Cortina Ford, it accelerated speed and proceeded to Hda. Aimee, a sugarcane plantation in Cadiz City, also owned by Congressman Manuel Puey; The red Cortina Ford followed also at high speed until it reached Hda. Aimee where C/Insp. Torcita and PO2 Java alighted and the confrontation with Alex Edwin del Rosario and Jesus Puey, occurred; The Complainant tried to establish the fact that nothing unusual occurred or transpired between the parties in the vicinity of Sitio Puting Tubig and that Torcita has no business pursuing them; However the Board is more inclined to give credence to the affidavits (exhibit 5 & 6) and the testimony of C/Insp. Torcita that a vehicular collision almost took place due to reckless driving of the driver of the mazda pick-up; That it was the duty inherent to the position as Chief of Police of Cadiz City and as deputy of the Land Transportation Office to enforce traffic rules and regulation to prevent chaos and accidents in roads and highways of the country (exhibit 13); This observation is further bolstered by the testimony of Reynaldo Consejo, the driver of the mazda pick-up, that he was able to overtake the red Cortina Ford only after the latter car hit the shoulder of the road and after overtaking he increased his speed (tsn page 131, August 30, 1994);

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This sudden increase in speed of a driver involved in a vehicular accident is a classic move for one who wants a fast get away from the scene, to escape responsibility; Further, Alex Edwin del Rosario testified that upon reaching Hda. Aimee, he instructed the guard to be on look-out for a car might be following them and might enter the compound (TSN page 70 August 30, 1994 ). This conduct would show that witness is anticipating that red Cortina Ford would follow them because of the incident in Sitio Puting Tubig which could have ended in a vehicular collision and finally no proof was presented to show that no other reason exist as to why C/Insp. Torcita would pursue the Mazda pick up other than near occurrence of a vehicular collision; The Complainant presented the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo and the Affidavit of Alex Edwin del Rosario, jointly taken, may be considered as proof that C/Insp. Torcita has committed act or series of acts that would constitute Grave Threat, Illegal Search, Abuse of Authority, Violation of Domicile and Violation of COMELEC Resolutions regarding the gun ban, thus CONDUCT UNBECOMING OF A POLICE OFFICER; That in the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo (exhibit c; exhibit 2), Bistal attempted to establish the fact that C/Insp. Torcita and PO2 Java illegally entered the gate of the compound but were stopped by the guards armed with cane stick or batuta, however in her testimony given during the hearing (tsn page 32, August 30, 1994) she stated that she did not know what transpired between the two men approaching and the guards near the gate because she, together with her companions, were busy unloading kitchen utensil from the pick-up to the kitchen and Consejo categorically stated that this portion of their affidavit, specifically paragraph 7, is NOT TRUE; Alex Edwin del Rosario, in his testimony given in the hearing, corroborated this fact that he also did not see or hear what happened for he was in some distance away and he cannot see them clearly (TSN page 73, August 30, 1994); The only piece of evidence presented in connection with the incident which happened near the gate of the compound is the affidavit of C/Insp. Torcita and his testimony given in the hearing of the case that when he was walking towards the compound together with his aide, PO2 Nehru Java, two armed civilian guards stopped and threatened him; He identified himself however, the same had no effect, and PO2 Java whispered that there are armed men around them and that it is dangerous for them to continue. That at this point, they radioed for back-up; Since no proof to the contrary was presented by the Complainant nor was there any witness or witnesses presented to rebut this allegations, the Board had no other choice except to consider these allegations as proof; (Exhibit 5 & 6); The Board also resolve to take note that a metropolitan newspaper with nationwide circulation and with unquestionable credential, had published a news item about the presence of armed security personnel of Congressman Manuel Puey exhibit 14); This evidence give more credence to the fact that there were really armed men in the premises where the aforementioned incident happened; That this is corroborated further by the affidavit of PO2 Nehru Java (exhibit 17); This observation of the Board that there were really armed men in the premises of Hda. Aimee, is further enhance by the fact that Major Torcita felt their presence when he desisted from further entering the compound, a feeling which was developed and nurtured by years of living under combat conditions and finally the Board also feels that the presence of armed persons in the offices and properties of high government officials is accepted as a necessary consequence for their protection due to the greater risks they are expose to; That because of the incident in Sitio Puting Tubig which was further aggravated by the confrontation near the gate of the compound of Hda. Aimee, C/Insp. Torcita upon the arrival of the back-up force of PNP Cadiz City, proceeded to the place where Capt. Jesus Puey and Alex Edwin del Rosario were; This fact is not disputed by the parties; xxx xxx xxx

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Chief Insp. Lazaro Torcita does not deny having taken alcoholic drink; However, not to the point of drunkness; The Board is more inclined to believe this allegation for no sane person will risks the life of a member of his family by deliberately driving when he is mentally and physically incapable; Further, C/Insp. Torcita was able to drive from Victorias to Cadiz City, a distance of forty kilometers, on a dark night and raining and was able to avoid collision of the vehicles involved by sheer reflex action despite the admitted fact that his tire hit the shoulder of the road; Further, at the time Chief Inspector Torcita entered the compound he was fully aware of the presence of armed men and reacted to this by exercising prudence while approaching the compound of Hda. Aimee; The foregoing facts would show that C/Insp. Torcita was in full command of his senses and was not affected by the numbing effect of alcohol for a drunk person does not show any caution and behaves irrationaly. The Board did not find sufficient evidence to establish that Torcita threatened anybody with a gun, nor that a serious confrontation took place between the parties. The Board also found that there was no sufficient evidence that the urinating incident took place, and held that the charges of violation of domicile and illegal search were not proven. The Board found that Lazaro Torcita was "in the performance of his official duties when the incident happened; however, he committed a breach of internal discipline by taking alcoholic drinks while in the performance of same. The dispositive portion of the decision of the Board reads: WHEREFORE, in view of the foregoing, the Complaint for CONDUCT UNBECOMING OF A POLICE OFFICER under Memo Cir. Nr. 92-006 pursuant to Sec. 42, RA 6975, be DISMISSED for lack of sufficient evidence, however finds C/Insp. Lazaro R. Torcita to have committed SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY under Sec. 41, RA 6975, in relation to NAPOLCOM Memo Cir. Nr. 91-002 and is hereby ORDERED SUSPENDED for twenty days (20) and forfeiture of salary for the same period of time effective upon receipt of this Decision under Rule 7, Section 2, Sub-par. b of the same Memo Circular. Torcita appealed his conviction to the Regional Appellate Board of the PNP, Region VI, Iloilo City, but the appeal was dismissed for lack of jurisdiction; Thus, Under the applicable provisions of Section 45 of R. A. 6975, however, the disciplinary action imposed by the Regional Director upon a PNP member shall be final and executory except those involving demotion in rank or dismissal from the service. The appealed decision being that of suspension from the service with corresponding forfeiture of pay only the same is not subject to review by this Board.3 Whereupon, C/Insp. Torcita filed a petition for certiorari in the regional trial court of Iloilo City, Branch 31, questioning the legality of the conviction of an offense for which he was not charged, "which conviction is a nullity because of the lack of procedural due process of law." Public respondent filed a motion to dismiss, which was denied. The regional trial court granted the petition forcertiorari and annulled the dispositive portion of the questioned decision insofar as it found Torcita guilty of simple irregularity in the performance of duty. Public respondent appealed from the above-mentioned decision of the regional trial court, by petition of review to the Court of Appeals, which affirmed the same for the reason that the respondent could not have been guilty of irregularity considering that "the twelve (12) cases treated as Conduct Unbecoming of a Police Officer were eventually dismissed." The instant petition for review on certiorari under Rule 45 seeks the reversal of the aforesaid decision of the Court of Appeals on the following grounds:

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1 THE OFFENSE OF "SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY" IS NECESSARILY INCLUDED IN THE CHARGE OF "CONDUCT UNBECOMING OF A POLICE OFFICER." 2 THE DECISION OF THE SUMMARY DISMISSAL BOARD (SDB) AND THE NAPOLCOM REGIONAL APPELLATE BOARD HAS BECOME FINAL AND EXECUTORY. 4 The petitioners submit that the offense of "Conduct Unbecoming of a Police Officer" is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and Simple Irregularity in the Performance of Duty is one act which brings such disgrace and dishonor as contemplated by law. Moreover, the dismissal has become final and executory and the trial court erred when it proceeded with the petition in violation of the doctrine of primary jurisdiction. In his comment, respondent Torcita insists that his right to due process of law was "corrosively abridged and impaired", and pleads for an affirmance of the decision of the Court of Appeals. The appeal has no merit. The Court of Appeals did not err in affirming the decision of the trial court granting the petition for certiorari. The administrative disciplinary machinery for dealing with complaints or charges against any member of the Philippine National Police (PNP) is laid down in Republic Act No. 6975, otherwise known as the "Department of the Interior and Local Government Act of 1990." This law defines the summary dismissal powers of the PNP Chief and Regional Directors, among others in cases, "where the respondent is guilty of conduct unbecoming of a police officer."5 Memorandum Circular No. 92-006 prescribes the "Rules and Regulations in the conduct of summary dismissal proceedings against erring PNP members" and defines conduct unbecoming of a police officer under Section 3 (c), Rule II, as follows: "Conduct unbecoming of a police officer" refers to any behavior or action of a PNP member, irrespective of rank, done in his official capacity, which, in dishonoring or otherwise disgracing himself as a PNP member, seriously compromise his character and standing as a gentleman in such a manner as to indicate his vitiated or corrupt state of moral character; it may also refer to acts or behavior of any PNP member in an unofficial or private capacity which, in dishonoring or disgracing himself personally as a gentleman, seriously compromises his position as a PNP member and exhibits himself as morally unworthy to remain as a member of the organization. On the other hand, the acts constituting "simple irregularity in the performance of duty" are defined in Memorandum Circular No. 91-002. It is a light offense, incurred, among others, by a member of the PNP who shall, among others, be found to "have the odor or smell of alcohol on his breath while on duty, or possess alcoholic beverages on his person, police vehicle, post or office." (Sec. 2. A, Rule VI). As above-stated, the Summary Dismissal Board absolved the C/Insp. Torcita of the consolidated charge of "conduct unbecoming of a police officer" but found him guilty of simple irregularity in the performance of duty under Sec. 41, R.A. No. 6975, in relation to Napolcom Memorandum Circular No. 91-002 and imposed a penalty of suspension for twenty (20) days and forfeiture of salary for the same period. We are unable to sustain the theory of the petitioners that the definition of "conduct unbecoming of a police officer" as earlier granted, is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and that there is "no legal prohibition" which would prevent the Summary Dismissal Board from finding petitioner guilty of the lesser offense. While the definition of the more serious offense is broad, and almost all-encompassing a finding of guilt for an offense, no matter how light, for which one is not properly charged and tried cannot be countenanced without violating the rudimentary requirements of due process. The series of twelve complaints filed against C/Insp. Torcita were solely based on the incident that occurred on April 26, 1994 at about 11:00 o'clock in the evening, wherein Torcita, who was off-duty and was in civilian clothes, riding in his private vehicle with members of his family, chased another vehicle

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which overtook his car in a reckless manner and in violation of the Traffic Code; the hot pursuit ended at the Hacienda Aimee, where he allegedly entered the place without lawful warrant and while inside, belligerently shouted invectives, challenging everyone to a fight, pointed his gun at somebody and urinated in full view of the persons therein. The Dismissal Board found the above charges unsubstantiated and held that Torcita was in the performance of official duty when the incidents happened. "However, he committed breach of internal discipline by taking alcoholic drinks while in the performance of same." It is glaringly apparent from a reading of the titles of the twelve administrative cases filed against C/Insp. Torcita, earlier quoted, that none of the charges or offenses mentioned or made reference to the specific act of being drunk while in the performance of official duty. The records do not bear out the specific acts or conduct constituting the charge/offense in the twelve cases which were consolidated at the pre-hearing conference into a single case of "Conduct Unbecoming of a Police Officer." Thus, the Board defined the issue before the Board as "whether the respondent is guilty of conduct unbecoming of a police officer under Republic Act 6975, as implemented by Memorandum Circular No. 92-006 of the National Police Commission under Rule II, Section 3, Paragraph c, committed though a series of illegal acts consisting of grave threats, illegal search, abuse of authority, violation of domicile or violation of Comelec Gunban." Notably, there is no indication or warning at all in the summary dismissal proceedings that C/Insp. Torcita was also being charged with breach of internal discipline consisting of taking alcoholic drinks while in the performance of his duties. The omission is fatal to the validity of the judgment finding him guilty of the offense for which he was not notified nor charged.1a\^/phi1 Summary dismissal proceedings are governed by specific requirements of notification of the charges together with copies of affidavits and other attachments supporting the complaints, and the filing of an answer, together with supporting documents. It is true that consistent with its summary nature, the duration of the hearing is limited, and the manner of conducting the hearing is summary, in that sworn statements may take the place of oral testimonies of witnesses, cross-examination is confined only to material and relevant matters, and prolonged arguments and dilatory proceedings shall not be entertained. (Section 4, Memorandum Circular No. 92-006). However, notification of the charges contemplates that respondent be informed of the specific charges against him. Torcita was entitled to know that he was being charged with being drunk while in the performance of duty, so that he could traverse the accusation squarely and adduce evidence in his defense. Although he was given an opportunity to be heard on the multiple and broad charges initially filed against him, the absence of specification of the offense for which he was eventually found guilty is not a proper observance of due process. There can be no short-cut to the legal process (Alonte vs. Savellano Jr., 287 SCRA 245). It is a requirement of due process that the parties be informed of how the litigation was decided with an explanation of the factual and legal reasons that led to the conclusions of the Court (ABD Overseas Manpower Corp. vs. NLRC, 286 SCRA 454). Memorandum Circular No. 92-006 specifically prescribes that the decision shall contain "a brief statement of the material facts and the findings of the summary dismissal authority as well as the disposition thereof" (Sec. 6). The cursory conclusion of the Dismissal Board that Torcita "committed breach of internal discipline by taking drinks while in the performance of same" should have been substantiated by factual findings referring to this particular offense. As it turned out, the dismissal Board believed his allegation that he was not drunk and found that he was in full command of his senses where he tried to apprehend the driver of the maroon Mazda pick-up. Although Torcita did not deny that he had taken a shot of alcoholic drink at the party which he attended before the incident, the records show that he was then off-duty and the party was at the Municipality of Victorias, which was outside of his area of police jurisdiction. On the other hand, the hot pursuit incident occurred while he was on in his way home to Cadiz City with the members of his family. As observed by the Dismissal Board itself, the hot pursuit was motivated by the duty "inherent to the position as Chief of Police of Cadiz City and as Deputy of the Land Transportation Office to enforce traffic rules and regulations, to prevent chaos and accidents in roads and highways" (Decision, p. 76). The Court of Appeals correctly pointed out that even if he was prosecuted for irregular performance of duty, he could not have been found to have the odor or smell of alcohol while in the performance of duty because he was not on duty at the time that he had a taste of liquor; he was on a private trip fetching his wife. Premises considered, we hold that the Court of Appeals correctly found that the decision of the petitioners Board was rendered without or in excess of jurisdiction, as respondent Torcita was found guilty of an

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offense for which he was not properly charged. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard (Palu-ay vs. CA, 293 SCRA 358). A void judgment never acquires finality (Heirs of Mayor Nemencio Galvez vs. CA 255 SCRA 672; Fortich vs. Corona, 298 SCRA 678). Hence, aforementioned decision cannot be deemed to have become final and executory. WHEREFORE, the assailed decision dated September l, 1997 of the Court of Appeals is AFFIRMED and the instant petition is DISMISSED. SO ORDERED.1wphi1.nt Melo, Vitug, Panganiban and Purisima, JJ., concur.

SPECIAL FIRST DIVISION

[G.R. Nos. 121039-45. October 18, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAYOR ANTONIO L. SANCHEZ, GEORGE MEDIALDEA, ZOILO AMA, BALDWIN BRION, LUIS CORCOLON, ROGELIO CORCOLON, and PEPITO KAWIT, accused-appellants. RESOLUTION MELO, J.: Before us is a motion for reconsideration of our January 25, 1999 decision, penned by Justice Antonio M. Martinez, affirming in toto the judgment of conviction rendered by Branch 70 of the Pasig City Regional Trial Court finding accused-appellants Mayor Antonio Sanchez, George Medialdea, Zoilo Ama, Baldwin Brion, Luis Corcolon, Rogelio Corcolon and Pepito Kawit guilty beyond reasonable doubt of the crime of rape with homicide, and additionally, ordering each of them to pay the amount of Seven Hundred Thousand Pesos (P700,000.00) to the heirs of the two victims as additional indemnity. While accusedappellants Antonio Sanchez, Zoilo Ama, Baldwin Brion and Pepito Kawit seasonably filed their respective motions for reconsideration, it was only on December 6, 1999 that the Office of the Solicitor General filed its Comment thereto. And since Justice Martinez had retired earlier on February 2, 1999, in accordance with A.M. No. 99-8-09 promulgated by the Court on February 15, 2000, the motions for reconsideration filed by accused-appellants was assigned by raffle only on September 18, 2001 to herein ponente for study and preparation of the appropriate action. In his motion for reconsideration, Mayor Antonio Sanchez avers that he is a victim of trial and conviction by publicity and that the principal witnesses Aurelio Centeno and Vicencio Malabanan presented by the prosecution are lacking in credibility. He likewise contends that the testimony of his 13year old daughter vis--vis his whereabouts on the night of the felony should have been given full faith and credit as against the testimony of Centeno and Malabanan. Lastly, Mayor Sanchez seeks the reconsideration of the amount of the gargantuan damages awarded on the ground that the same have no factual and legal bases. In the same vein, accused-appellants Zoilo Ama, Baldwin Brion, and Pepito Kawit, in their motion for reconsideration, maintain that prosecution witnesses Centeno and Malabanan have been sufficiently impeached by prior inconsistent statements allegedly pertaining to material and crucial points of the events at issue. Not only that, they assert that independent and disinterested witnesses have destroyed the prosecutions version of events.

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Preliminarily, it may be observed that, except for the issue of civil damages raised by Mayor Sanchez, accused-appellants have not presented any issue new or different from that which they had previously raised before the trial court and this Court. Moreover, the issues they have raised have been discussed at length and passed upon by both the court a quo and by this Court. Thus, on the charge that accusedappellant Sanchez is a victim of trial and conviction by publicity, in our January 25, 1999 decision, citing People vs. Teehankee, Jr. (249 SCRA 54), we declared: We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that publicity so permeated the mind of the trial judge and impaired his impartiality Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino et al. vs. Alejandro et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed position as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. This failure to present proof of actual bias continues to hound accused-appellant Sanchez, having failed, in his motion for reconsideration, to substantiate his claims of actual bias on the part of the trial judge. Not only that, accused-appellants case has been exhaustively and painstakingly reviewed by the Court itself. Accused-appellant Sanchez has not shown by an iota of proof that the Court, in the examination of his appeal, was unduly swayed by publicity in affirming the sentence of conviction imposed by the trial court. The charge of conviction by publicity leveled by accused-appellant has thus no ground to stand on. As to the claim that witnesses Centeno and Malabanan lack credibility and that they were sufficiently impeached by prior inconsistent statements, the same is old hat, to say the least. It is hornbook doctrine in criminal jurisprudence that when the issue is one of credibility of witnesses, appellate courts will not disturb the findings of the trial court and the appellate courts will respect these findings considering that trial courts are in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial (People vs. Mendoza, 332 SCRA 485 [2000]). In the instant case, then Judge Harriet Demetriou found both Centeno and Malabanan to have testified in a frank, spontaneous, and straightforward manner; and that despite gruelling crossexamination by a battery of defense lawyers, their testimony never wavered on the substantial matters in issue. As to the alleged inconsistencies in the testimony of Centeno and Malabanan, suffice it to say that the points raised have all been carefully and assiduously examined, not only by the trial court but also by the Court itself, and that the inconsistencies were found to refer to minor and collateral matters. It is wellsettled that so long as the witnesses declarations agree on substantial matters, the inconsequential inconsistencies and contradictions dilute neither the witnesses credibility nor the verity of their testimony (People vs. Agomo-o, 334 SCRA 279 [2000]). Accused-appellants have not shown in their motions for

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reconsideration new evidence to warrant disregard for the above-rule, nor have they shown that the Court has overlooked, misunderstood, or misapplied some fact of weight and circumstance that would have materially affected the outcome of the case. Accused-appellant Sanchezs argument that the testimony of his 13-year old daughter, Ave Marie Sanchez, as to his whereabouts on the night of the crime should be given full faith and credence is likewise unavailing. While it is true that statements of children are accorded great probative value, it is likewise true that alibi is the weakest defense an accused can concoct. Where nothing supports the alibi except the testimony of a relative, it deserves but scant consideration (People vs. Waggay, 218 SCRA 742 [1993]). Moreover, accused-appellant Sanchezs alibi cannot prevail over the positive declarations of the prosecution that he was at Erais Farm that fateful night. The alibis of accused-appellants Zoilo Ama, Baldwin Brion, and Pepito Kawit are even worse, not having been corroborated by any other evidence. The assertions of these accused-appellants as to their innocence are thus entitled short shrift from this Court. Accused-appellant Sanchezs asseverations as to the amount of damages awarded is, however, meritorious. The trial court awarded the Sarmenta family P50,000.00 as civil liability for the wrongful death of Eileen Sarmenta, P106,650.00 for the funeral expenses they incurred, and P3,276,000.00 for the loss of Eileen Sarmentas earning capacity; or a total of P3,432,650.00 as actual damages. On the other hand, the Gomez family was awarded by the trial court a total of P3,484,000.00 as actual damages, broken down as follows: P50,000.00 for the wrongful death of Allan Gomez, P74,000.00 for the latters funeral, and P3,360,000.00 for the loss of the latters earning capacity. Similarly, the trial court ordered accused-appellants to pay the sum of P2,000,000.00 to the Sarmenta family and another P2,000,000.00 to the Gomez family as moral damages. Lastly, the trial court ordered accused-appellants to pay the Sarmenta and Gomez families the sum of P164,250.00 and 191,000.00, respectively, for litigation expenses incurred. The Court, in its decision dated January 25, 1999, affirmed in toto the decision of the lower court. However, we also ordered each accused-appellant to pay the respective heirs of Eileen Sarmenta and Allan Gomez an additional indemnity of P350,000.00 each, stating that since each accused-appellant had been found guilty of seven counts of rape with homicide, jurisprudence dictated that for each count, each accused-appellant is liable for civil indemnity of P50,000.00, or a total of P350,000.00. Since the trial courts award of actual damages to the Gomez and Sarmenta families already included civil indemnity in the amount of P50,000.00, to order each accused-appellant to pay an additional P350,000.00 as civil indemnity would be double recovery of damages on the part of the Gomez and Sarmenta families for the same act or omission. Thus, the amount of P50,000.00 awarded by the trial court must each be deducted from the amount of actual damages due to the Gomez and Sarmenta families. As for funeral expenses, the Court had occasion to declare in People vs. Timon (281 SCRA 577 [1997]) that burial expenses, which are by nature actual expenses must be proved. Since no proof of burial expenses was ever presented in the instant case, its award will not be allowed. It is a settled rule that there must be proof that actual or compensatory damages have been suffered and evidence of its actual amount (People vs. Nablo, 319 SCRA 784 [1999]). While the funeral expenses incurred by the Sarmenta family were supported by the appropriate receipts, the same is not true for the funeral expenses incurred by the Gomez family. Not having been duly receipted, the amount of P74,000.00 awarded to the Gomez family as funeral expenses must, perforce, be deleted. However, as the heirs of Allan Gomez clearly incurred funeral expenses, P10,000.00 by way of nominal damages should be awarded. This award is adjudicated so that a right which has been violated may be recognized or vindicated, and not for the purpose of indemnification (see People vs. Candare, 333 SCRA 338 [2000]). The award of P3,276,000.00 and P3,360,000.00, representing the alleged loss of earning capacity of Sarmenta and Gomez, respectively, also merit review. Eileen Sarmenta, at the time of her death, was a graduating student of the College of Agriculture of the University of the Philippines at Los Baos (UPLB), majoring in Food and Nutrition for Large Animals. Allan Gomez was likewise a senior student of the College of Agriculture of UPLB, majoring in Beef Production. The trial court, using the American Expectancy Table of Mortality, pegged the life expectancy of Sarmenta, 21 years old at the time of her death, and Gomez, 19 years old at the time of his death, at 39.1 and 40.6 years, respectively. Believing that the victims would have earned a monthly salary of P15,000.00 and incurred living expenses of P8,000.00

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per month, the trial court awarded P3,276,000.00 and P3,360,000.00 as the amount recoverable by the Sarmenta and Gomez families, respectively, for the loss of the earning capacity of Eileen and Allan. While accused-appellant Sanchez contends that the awards of P3,276,000.00 and P3,360,000.00 are baseless in fact and law, no evidence having been adduced to prove that the victims had any actual income at the time of their demise, it is well-settled that to be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, be gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money ( People vs. Teehankee, supra). Likewise, the fact that the prosecution did not present documentary evidence to support its claim for damages for loss of earning capacity of the deceased does not preclude recovery of the same (People vs. Quilang, 312 SCRA 314 [1999]; People vs. Verde, 302 SCRA 690 [1999]). On the part of Eileen Sarmenta, her mother testified that Eileen had an offer for employment from Monterey Farms. On the other hand, Allan Gomezs mother testified that her deceased son planned to work on a private farm after graduation. Moreover, in Cariaga et al. vs. LTB and Manila Railroad Co. (110 Phil. 346 [1960]), the Court awarded compensatory damages for the loss of earning capacity to Edgardo Cariaga, a 4 th year medical student at UST, stating that while his scholastic record may not have been first rate, it was, nevertheless, sufficient to justify the assumption that he could have finished the course, would have passed the board in due time, and that he could have possibly earned as a medical practitioner the minimum monthly income of P300.00. Both Sarmenta and Gomez were senior agriculture students at UPLB, the countrys leading educational institution in agriculture. As reasonably assumed by the trial court, both victims would have graduated in due course. Undeniably, their untimely death deprived them of their future time and earning capacity. For these deprivation, their heirs are entitled to compensation. Difficulty, however, arises in measuring the value of Sarmentas and Gomezs lost time and capacity to earn money in the future, both having been unemployed at the time of death. While the law is clear that the deceased has a right to his own time which right cannot be taken from him by a tortfeasor without compensation the law is also clear that damages cannot be awarded on the speculation, passion, or guess of the judge or the witnesses. In this case, Eileen Sarmentas mother testified that for a new graduate of UPLB, the basic salary was more or less P15,000.00 per month. Allan Gomezs mother, on the other hand, testified that her son could have easily gotten P10,000.00 to P15,000.00 per month. Clearly, the testimony of said witnesses are speculative, insufficient to prove that in 1993, Sarmenta and Gomez would have indeed earned P15,000.00 a month had they managed to graduate. However, considering that Sarmenta and Gomez would have graduated in due time from a reputable university, it would not be unreasonable to assume that in 1993 they would have earned more than the minimum wage. All factors considered, the Court believes that it is fair and reasonable to fix the monthly income that the two would have earned in 1993 at P8,000.00 per month (or P96,000.00/year) and their deductible living and other incidental expenses at P3,000.00 per month (or P36,000.00/year). Hence, in accordance with the formula adopted by the Court in Villa Rey Transit, Inc. vs. CA (31 SCRA 511 [1970]), and using the American Expectancy Table of Mortality, the loss of Sarmenta and Gomezs earning capacity is to be computed as follows: Net earning capacity = Life expectancy x (Gross Annual Income Living Expenses) where: Life expectancy = 2/3 (80 the age of the deceased) Heirs of Eileen Sarmenta: = 2/3 (80-21) x (96,000 36,000) = 39.353 x 60,000 = P2,361,180.00 Heirs of Allan Gomez: = 2/3 (80-19) x (96,000 36,000)

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= 40.687 x 60,000 = P2,441,220.00 As to the award of P2,000,000.00 each as moral damages to the Sarmenta and Gomez families, these must also be reduced, the same being excessive. While the assessment of moral damages is left to the discretion of the court according to the circumstances of each case (Article 2216, Civil Code), the purpose of moral damages is essentially indemnity or reparation, not punishment or correction. Moral damages are emphatically not intended to enrich a complainant at the expense of a defendant; they are awarded only to enable the injured party to obtain means, diversions or amusements that will serve to alleviate the moral suffering he has undergone by reason of the defendants culpable action. In other words, the award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo ante; and therefore, it must be proportionate to the suffering inflicted (Dela Serna vs. CA, 233 SCRA 325 [1994]). The intensity of the pain experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no relation whatever with the wealth or the means of the offender. The death caused by a beggar is felt by the parents of the victim as intensely as that caused by the action of a wealthy family. The Court, in the exercise of its discretion, thus reduces the amount of moral damages awarded to the heirs of Eileen Gomez and Allan Sarmenta to P1,000,000.00 each. As to the award of attorneys fees and litigation expenses, the same is reasonable and justified, this case having dragged on for over eight years. WHEREFORE, premises considered, we AFFIRM the conviction of accused-appellants for seven counts of rape with homicide and the sentence of reclusion perpetua imposed upon them for each of said counts, with MODIFICATION that the accused be ordered to pay the heirs of the victims as follows: To the heirs of Eileen Sarmenta: 1. Death indemnity 2. Moral damages 3. Funeral expenses 4. Loss of earning capacity 5. Attorneys fees & litigation expenses P 350,000.00

1,000,000.00 106,650.00 2,361,180.00 164,250.00 ----------------------

Total To the heirs of Allan Gomez: 1. Death indemnity 2. Moral damages 3. Nominal damages 4. Loss of earning capacity

3,982,080.00

350,000.00

1,000,000.00 10,000.00 2,441,220.00 191,000.00 ----------------------

5. Attorneys fees & litigation expenses

Total

3,992,220.00

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SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, and Pardo, JJ., concur. EN BANC

[G.R. No. 130487. June 19, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO ESTRADA, accused-appellant. DECISION PUNO, J.: This is an automatic review of the death penalty imposed on accused-appellant by the Regional Trial Court, Branch 44, Dagupan City in Criminal Case No. 94-00860-D. [1] We nullify the proceedings in the court a quo and remand the case for proper disposition. In an Information dated December 29, 1994, accused-appellant Roberto Estrada y Lopez was charged with the crime of murder for the killing of one Rogelio P. Mararac, a security guard. The Information reads: That on or about the 27th day of December 1994 in the City of Dagupan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, ROBERTO ESTRADA Y LOPEZ, being then armed with a butchers knife, with intent to kill one ROGELIO P. MARARAC with treachery and committed in a holy place of worship, did then and there, wilfully, unlawfully and criminally, attack, assault and use personal violence upon the latter by stabbing him, hitting him on vital parts of his body with the said weapon, thereby causing his death shortly thereafter due to Cardiorespiratory Arrest, Massive Intrathoracic Hemorrhage, Stab Wound as per Autopsy Report and Certificate of Death both issued by Dr. Tomas G. Cornel, Assistant City Health Officer, this City, to the damage and prejudice of the legal heirs of said deceased ROGELIO P. MARARAC in the amount of not less than FIFTY THOUSAND PESOS (P50,000.00), Philippine currency, and other consequential damages. Contrary to Article 248 of the Revised Penal Code. Dagupan City, Philippines, December 29, 1994.[2] At the arraignment on January 6, 1995, accused-appellants counsel, the Public Attorneys Office, filed an Urgent Motion to Suspend Arraignment and to Commit Accused to Psychiatric Ward at Baguio General Hospital. It was alleged that accused-appellant could not properly and intelligently enter a plea because he was suffering from a mental defect; that before the commission of the crime, he was confined at the psychiatric ward of the Baguio General Hospital in Baguio City. He prayed for the suspension of his arraignment and the issuance of an order confining him at the said hospital.[3] The motion was opposed by the City Prosecutor. The trial court, motu proprio, propounded several questions on accused-appellant. Finding that the questions were understood and answered by him intelligently, the court denied the motion that same day. [4] The arraignment proceeded and a plea of not guilty was entered by the court on accused-appellants behalf.[5] The prosecution presented four (4) witnesses, namely: (1) Dr. Tomas Cornel, the Assistant Health Officer of Dagupan City who issued the death certificate and conducted the autopsy on the victim; (2) Crisanto Santillan, an eyewitness to the incident; (3) SPO1 Conrado Francisco, one of the policemen who apprehended accused-appellant; and (4) Rosalinda Sobremonte, the victims sister. The prosecution established the following facts:

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In the morning of December 27, 1994, at the St. Johns Cathedral, Dagupan City, the sacrament of confirmation was being performed by the Roman Catholic Bishop of Dagupan City on the children of Dagupan. The cathedral was filled with more than a thousand people. At 11:00 A.M., nearing the close of the rites, the Bishop went down the altar to give his final blessing to the children in the front rows. While the Bishop was giving his blessing, a man from the crowd went up and walked towards the center of the altar. He stopped beside the Bishops chair, turned around and, in full view of the Catholic faithful, sat on the Bishops chair. The man was accused-appellant. Crisanto Santillan, who was assisting the Bishop at the rites, saw accused-appellant. Santillan approached accused-appellant and requested him to vacate the Bishops chair. Gripping the chairs armrest, accused-appellant replied in Pangasinese: No matter what will happen, I will not move out! Hearing this, Santillan moved away.[6] Some of the churchgoers summoned Rogelio Mararac, the security guard at the cathedral. Mararac went near accused-appellant and told him to vacate the Bishops chair. Accused-appellant stared intensely at the guard. Mararac grabbed his nightstick and used it to tap accused-appellants hand on the armrest. Appellant did not budge. Again, Mararac tapped the latters hand. Still no reaction. Mararac was about to strike again when suddenly accused-appellant drew a knife from his back, lunged at Mararac and stabbed him, hitting him below his left throat. Mararac fell. Accused-appellant went over the victim and tried to stab him again but Mararac parried his thrust. Accused-appellant looked up and around him. He got up, went to the microphone and shouted: Anggapuy nayan dia! (No one can beat me here!). He returned to the Bishops chair and sat on it again. Mararac, wounded and bleeding, slowly dragged himself down the altar.[7] Meanwhile, SPO1 Conrado Francisco, who was directing traffic outside, received a report of a commotion inside the cathedral. Rushing to the cathedral, SPO1 Francisco saw a man, accused-appellant, with red stains on his shirt and a knife in one hand sitting on a chair at the center of the altar. He ran to accusedappellant and advised him to drop the knife. Accused-appellant obeyed. He dropped the knife and raised his hands. Thereupon, Chief Inspector Wendy Rosario, Deputy Police Chief, Dagupan City, who was attending the confirmation rites at the Cathedral, went near accused-appellant to pick up the knife. Suddenly, accused-appellant embraced Chief Inspector Rosario and the two wrestled with each other. Chief Inspector Rosario was able to subdue accused-appellant. The police came and when they frisked appellant, they found a leather scabbard tucked around his waist. [8] He was brought to the police station and placed in jail. In the meantime, Mararac, the security guard, was brought to the hospital where he expired a few minutes upon arrival. He died of cardio-respiratory arrest, massive, intra-thoracic hemorrhage, stab wound.[9] He was found to have sustained two (2) stab wounds: one just below the left throat and the other on the left arm. The autopsy reported the following findings: EXTERNAL FINDINGS 1. Stab wound, along the parasternal line, level of the 2nd intercostal space, left, 1 x 1 penetrating. The edge of one side of the wound is sharp and pointed. 2. Stab wound, antero-lateral aspect, distal 3rd, arm, left, x x . The edge of one side of the wound is sharp and pointed. INTERNAL FINDINGS Massive intrathoracic, left, hemorrhage with perforation of the upper and lower lobe of the left lung. The left pulmonary blood vessel was severely cut.[10] After the prosecution rested its case, accused-appellant, with leave of court, filed a Demurrer to Evidence. He claimed that the prosecution failed to prove the crime of murder because there was no evidence of the qualifying circumstance of treachery; that there was unlawful aggression by the victim when he tapped accused-appellants hand with his nightstick; and that accused-appellant did not have sufficient ability to calculate his defensive acts because he was of unsound mind.[11] The Demurrer to Evidence was opposed by the public prosecutor. He alleged that the accused pretended to be weak, tame and of unsound mind; that after he made the first stab, he furiously continued stabbing and slashing the victim to finish him off undeterred by the fact that he was in a holy place where a religious ceremony was being conducted; and the plea of unsound mind had already been ruled upon by the trial court in its order of January 6, 1995. [12]

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On February 21, 1995, a letter was sent by Inspector Wilfredo F. Valdez, Jail Warden of Dagupan City to the trial court. Inspector Valdez requested the court to allow accused-appellant, who was confined at the city jail, to be treated at the Baguio General Hospital to determine whether he should remain in jail or be transferred to some other institution. The other prisoners were allegedly not comfortable with appellant because he had been exhibiting unusual behavior. He tried to climb up the jail roof so he could escape and see his family.[13] As ordered by the trial court, the public prosecutor filed a Comment to the jail wardens letter. He reiterated that the mental condition of accused-appellant to stand trial had already been determined; unless a competent government agency certifies otherwise, the trial should proceed; and the city jail warden was not the proper person to determine whether accused-appellant was mentally ill or not. [14] In an order dated August 21, 1995, the trial court denied the Demurrer to Evidence. [15] Accused-appellant moved for reconsideration. While the motion for reconsideration was pending, on February 26, 1996, counsel for accused-appellant filed a Motion to Confine Accused for Physical, Mental and Psychiatric Examination. Appellants counsel informed the court that accused-appellant had been exhibiting abnormal behavior for the past weeks; he would shout at the top of his voice and cause panic among the jail inmates and personnel; that appellant had not been eating and sleeping; that his co-inmates had been complaining of not getting enough sleep for fear of being attacked by him while asleep; that once, while they were sleeping, appellant took out all his personal effects and waste matter and burned them inside the cell which again caused panic among the inmates. Appellants counsel prayed that his client be confined at the National Center for Mental Health in Manila or at the Baguio General Hospital.[16] Attached to the motion were two (2) letters. One, dated February 19, 1996, was from Inspector Pedrito Llopis, Jail Warden, Dagupan City, addressed to the trial court judge informing him of appellants irrational behavior and seeking the issuance of a court order for the immediate psychiatric and mental examination of accused-appellant. [17] The second letter, dated February 21, 1996, was addressed to Inspector Llopis from the Bukang Liwayway Association, an association of inmates in the Dagupan City Jail. The letter, signed by the president, secretary and adviser of said association, informed the jail warden of appellants unusual behavior and requested that immediate action be taken against him to avoid future violent incidents in the jail.[18] On September 18, 1996, the trial court denied reconsideration of the order denying the Demurrer to Evidence. The court ordered accused-appellant to present his evidence on October 15, 1996. [19] Accused-appellant did not take the witness stand. Instead, his counsel presented the testimony of Dr. Maria Soledad Gawidan,[20] a resident physician in the Department of Psychiatry at the Baguio General Hospital, and accused-appellants medical and clinical records at the said hospital. [21] Dr. Gawidan testified that appellant had been confined at the BGH from February 18, 1993 to February 22, 1993 and that he suffered from Schizophrenic Psychosis, Paranoid Typeschizophrenia, paranoid, chronic, paranoid type;[22] and after four (4) days of confinement, he was discharged in improved physical and mental condition.[23] The medical and clinical records consisted of the following: (1) letter of Dr. Alfredo Sy, Municipal Health Officer, Calasiao, Pangasinan to Dr. Jesus del Prado, Director, BGH referring accusedappellant for admission and treatment after a relapse of his violent behavior; [24] (2) the clinical cover sheet of appellant at the BGH;[25] (3) the consent slip of appellants wife voluntarily entrusting appellant to the BGH;[26] (4) the Patients Record;[27] (5) the Consent for Discharge signed by appellants wife; [28] (6) the Summary and Discharges of appellant; [29] (7) appellants clinical case history;[30] (8) the admitting notes; [31] (9) Physicians Order Form;[32] (10) the Treatment Form/ medication sheet;[33] and (11) Nurses Notes.[34] The trial court rendered a decision on June 23, 1997. It upheld the prosecution evidence and found accused-appellant guilty of the crime charged and thereby sentenced him to death, viz: WHEREFORE, the court finds accused Roberto Estrada y Lopez guilty beyond reasonable doubt of the crime of Murder and in view of the presence of the aggravating circumstance of cruelty which is not offset by any mitigating circumstance, the accused is sentenced to suffer the Death Penalty and to indemnify the heirs of the deceased in the amount of P50,000.00. The accused is ordered to pay the sum of P18,870.00 representing actual expenses and P100,000.00 as moral damages. SO ORDERED.[35] In this appeal, accused-appellant assigns the following errors:

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I THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED, DESPITE CLEAR AND CONVINCING EVIDENCE ON RECORD, SUPPORTING HIS PLEA OF INSANITY. II THE LOWER COURT LIKEWISE ERRED IN HOLDING THAT THE STABBING TO DEATH OF ROGELIO MARARAC WAS ATTENDED WITH TREACHERY AND AGGRAVATED BY CRUELTY, GRANTING ARGUENDO THAT ACCUSED-APPELLANTS PLEA OF INSANITY CANNOT BE CONSIDERED AN EXEMPTING CIRCUMSTANCE. [36] The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. [37] Under the classical theory on which our penal code is mainly based, the basis of criminal liability is human free will.[38] Man is essentially a moral creature with an absolutely free will to choose between good and evil.[39] When he commits a felonious or criminal act (delito doloso), the act is presumed to have been done voluntarily,[40] i.e., with freedom, intelligence and intent. [41] Man, therefore, should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired.[42] In the absence of evidence to the contrary, the law presumes that every person is of sound mind [43] and that all acts are voluntary.[44] The moral and legal presumption under our law is that freedom and intelligence constitute the normal condition of a person. [45] This presumption, however, may be overthrown by other factors; and one of these is insanity which exempts the actor from criminal liability.[46] The Revised Penal Code in Article 12 (1) provides: ART. 12. Circumstances which exempt from criminal liability.The following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. An insane person is exempt from criminal liability unless he has acted during a lucid interval. If the court therefore finds the accused insane when the alleged crime was committed, he shall be acquitted but the court shall order his confinement in a hospital or asylum for treatment until he may be released without danger. An acquittal of the accused does not result in his outright release, but rather in a verdict which is followed by commitment of the accused to a mental institution.[47] In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act. Mere abnormality of the mental faculties will not exclude imputability. [48] The accused must be so insane as to be incapable of entertaining a criminal intent. [49] He must be deprived of reason and act without the least discernment because there is a complete absence of the power to discern or a total deprivation of freedom of the will.[50] Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance must prove it by clear and positive evidence. [51] And the evidence on this point must refer to the time preceding the act under prosecution or to the very moment of its execution. [52] To ascertain a persons mental condition at the time of the act, it is permissible to receive evidence of the condition of his mind within a reasonable period both before and after that time. [53] Direct testimony is not required.[54] Neither are specific acts of derangement essential to establish insanity as a defense. [55] Circumstantial evidence, if clear and convincing, suffices; for the unfathomable mind can only be known by overt acts. A persons thoughts, motives, and emotions may be evaluated only by outward acts to determine whether these conform to the practice of people of sound mind. [56] In the case at bar, there is no direct proof that accused-appellant was afflicted with insanity at the time he killed Mararac. The absence of direct proof, nevertheless, does not entirely discount the probability that appellant was not of sound mind at that time. From the affidavit of Crisanto Santillan [57] attached to the Information, there are certain circumstances that should have placed the trial court on notice that appellant

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may not have been in full possession of his mental faculties when he attacked Mararac. It was highly unusual for a sane person to go up to the altar and sit on the Bishops chair while the Bishop was administering the Holy Sacrament of Confirmation to children in a jampacked cathedral. It goes against normal and ordinary behavior for appellant, without sufficient provocation from the security guard, to stab the latter at the altar, during sacramental rites and in front of all the Catholic faithful to witness. Appellant did not flee, or at least attempt to flee after the stabbing. He nonchalantly approached the microphone and, over the public address system, uttered words to the faithful which no rational person would have made. He then returned to the Bishops chair and sat there as if nothing happened. Accused-appellants history of mental illness was brought to the courts attention on the day of the arraignment. Counsel for accused-appellant moved for suspension of the arraignment on the ground that his client could not properly and intelligently enter a plea due to his mental condition. The Motion for Suspension is authorized under Section 12, Rule 116 of the 1985 Rules on Criminal Procedure which provides: Sec. 12. Suspension of arraignment.The arraignment shall be suspended, if at the time thereof: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. (b) x x x. The arraignment of an accused shall be suspended if at the time thereof he appears to be suffering from an unsound mental condition of such nature as to render him unable to fully understand the charge against him and to plead intelligently thereto. Under these circumstances, the court must suspend the proceedings and order the mental examination of the accused, and if confinement be necessary for examination, order such confinement and examination. If the accused is not in full possession of his mental faculties at the time he is informed at the arraignment of the nature and cause of the accusation against him, the process is itself a felo de se, for he can neither comprehend the full import of the charge nor can he give an intelligent plea thereto.[58] The question of suspending the arraignment lies within the discretion of the trial court. [59]And the test to determine whether the proceedings will be suspended depends on the question of whether the accused, even with the assistance of counsel, would have a fair trial. This rule was laid down as early as 1917, thus: In passing on the question of the propriety of suspending the proceedings against an accused person on the ground of present insanity, the judges should bear in mind that not every aberration of the mind or exhibition of mental deficiency is sufficient to justify such suspension. The test is to be found in the question whether the accused would have a fair trial, with the assistance which the law secures or gives; and it is obvious that under a system of procedure like ours where every accused person has legal counsel, it is not necessary to be so particular as it used to be in England where the accused had no advocate but himself.[60] In the American jurisdiction, the issue of the accuseds present insanity or insanity at the time of the court proceedings is separate and distinct from his criminal responsibility at the time of commission of the act. The defense of insanity in a criminal trial concerns the defendants mental condition at the time of the crimes commission. Present insanity is commonly referred to as competency to stand trial[61] and relates to the appropriateness of conducting the criminal proceeding in light of the defendants present inability to participate meaningfully and effectively.[62] In competency cases, the accused may have been sane or insane during the commission of the offense which relates to a determination of his guilt. However, if he is found incompetent to stand trial, the trial is simply postponed until such time as he may be found competent. Incompetency to stand trial is not a defense; it merely postpones the trial.[63] In determining a defendants competency to stand trial, the test is whether he has the capacity to comprehend his position, understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate, communicate with, and assist his counsel to the end that any available defense may be interposed.[64] This test is prescribed by state law but it exists generally as a statutory recognition of the rule at common law. [65] Thus:

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[I]t is not enough for the x x x judge to find that the defendant [is] oriented to time and place, and [has] some recollection of events, but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understandingand whether he has a rational as well as factual understanding of the proceedings against him.[66] There are two distinct matters to be determined under this test: (1) whether the defendant is sufficiently coherent to provide his counsel with information necessary or relevant to constructing a defense; and (2) whether he is able to comprehend the significance of the trial and his relation to it. [67] The first requisite is the relation between the defendant and his counsel such that the defendant must be able to confer coherently with his counsel. The second is the relation of the defendant vis-a-vis the court proceedings, i.e., that he must have a rational as well as a factual understanding of the proceedings.[68] The rule barring trial or sentence of an insane person is for the protection of the accused, rather than of the public.[69] It has been held that it is inhuman to require an accused disabled by act of God to make a just defense for his life or liberty.[70] To put a legally incompetent person on trial or to convict and sentence him is a violation of the constitutional rights to a fair trial [71] and due process of law;[72] and this has several reasons underlying it.[73] For one, the accuracy of the proceedings may not be assured, as an incompetent defendant who cannot comprehend the proceedings may not appreciate what information is relevant to the proof of his innocence. Moreover, he is not in a position to exercise many of the rights afforded a defendant in a criminal case, e.g., the right to effectively consult with counsel, the right to testify in his own behalf, and the right to confront opposing witnesses, which rights are safeguards for the accuracy of the trial result. Second, the fairness of the proceedings may be questioned, as there are certain basic decisions in the course of a criminal proceeding which a defendant is expected to make for himself, and one of these is his plea. Third, the dignity of the proceedings may be disrupted, for an incompetent defendant is likely to conduct himself in the courtroom in a manner which may destroy the decorum of the court. Even if the defendant remains passive, his lack of comprehension fundamentally impairs the functioning of the trial process. A criminal proceeding is essentially an adversarial proceeding. If the defendant is not a conscious and intelligent participant, the adjudication loses its character as a reasoned interaction between an individual and his community and becomes an invective against an insensible object. Fourth, it is important that the defendant knows why he is being punished, a comprehension which is greatly dependent upon his understanding of what occurs at trial. An incompetent defendant may not realize the moral reprehensibility of his conduct. The societal goal of institutionalized retribution may be frustrated when the force of the state is brought to bear against one who cannot comprehend its significance. [74] The determination of whether a sanity investigation or hearing should be ordered rests generally in the discretion of the trial court.[75] Mere allegation of insanity is insufficient. There must be evidence or circumstances that raise a reasonable doubt[76] or a bona fide doubt[77] as to defendants competence to stand trial. Among the factors a judge may consider is evidence of the defendants irrational behavior, history of mental illness or behavioral abnormalities, previous confinement for mental disturbance, demeanor of the defendant, and psychiatric or even lay testimony bearing on the issue of competency in a particular case.[78] In the case at bar, when accused-appellant moved for suspension of the arraignment on the ground of accuseds mental condition, the trial court denied the motion after finding that the questions propounded on appellant were intelligently answered by him. The court declared:: x x x It should be noted that when this case was called, the Presiding Judge asked questions on the accused, and he (accused) answered intelligently. As a matter of fact, when asked where he was born, he answered, in Tayug. The accused could answer intelligently. He could understand the questions asked of him. WHEREFORE, for lack of merit, the Urgent Motion to Suspend Arraignment and to Commit Accused to Psychiatric Ward at Baguio General Hospital, is hereby DENIED. SO ORDERED.[79] The fact that accused-appellant was able to answer the questions asked by the trial court is not conclusive evidence that he was competent enough to stand trial and assist in his defense. Section 12, Rule 116 speaks of an unsound mental condition that effectively renders [the accused] unable to fully understand the

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charge against him and to plead intelligently thereto. It is not clear whether accused-appellant was of such sound mind as to fully understand the charge against him. It is also not certain whether his plea was made intelligently. The plea of not guilty was not made by accused-appellant but by the trial court because of his refusal to plead.[80] The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a psychiatrist or psychologist or some other expert equipped with the specialized knowledge of determining the state of a persons mental health. To determine the accused-appellants competency to stand trial, the court, in the instant case, should have at least ordered the examination of accusedappellant, especially in the light of the latters history of mental illness. If the medical history was not enough to create a reasonable doubt in the judges mind of accusedappellants competency to stand trial, subsequent events should have done so. One month after the prosecution rested its case, the Jail Warden of Dagupan City wrote the trial judge informing him of accused-appellants unusual behavior and requesting that he be examined at the hospital to determine whether he should remain in jail or be placed in some other institution. The trial judge ignored this letter. One year later, accused-appellants counsel filed a Motion to Confine Accused for Physical, Mental and Psychiatric Examination. Attached to this motion was a second letter by the new Jail Warden of Dagupan City accompanied by a letter-complaint of the members of the Bukang Liwayway Association of the city jail. Despite the two (2) attached letters, [81] the judge ignored the Motion to Confine Accused for Physical, Mental and Psychiatric Examination. The records are barren of any order disposing of the said motion. The trial court instead ordered accused-appellant to present his evidence.[82] Dr. Gawidan testified that the illness of accused-appellant, i.e., schizophrenia, paranoid type, is a lifetime illness and that this requires maintenance medication to avoid relapses. [83] After accused-appellant was discharged on February 22, 1993, he never returned to the hospital, not even for a check-up. [84] Accused-appellant did not take the witness stand. His counsel manifested that accused-appellant was waiving the right to testify in his own behalf because he was suffering from mental illness. [85] This manifestation was made in open court more than two (2) years after the crime, and still, the claim of mental illness was ignored by the trial court. And despite all the overwhelming indications of accusedappellants state of mind, the judge persisted in his personal assessment and never even considered subjecting accused-appellant to a medical examination. To top it all, the judge found appellant guilty and sentenced him to death! Section 12, Rule 116 of the 1985 Rules on Criminal Procedure speaks of a mental examination. [86] The human mind is an entity, and understanding it is not purely an intellectual process but depends to a large degree upon emotional and psychological appreciation. [87] Thus, an intelligent determination of an accuseds capacity for rational understanding ought to rest on a deeper and more comprehensive diagnosis of his mental condition than laymen can make through observation of his overt behavior. Once a medical or psychiatric diagnosis is made, then can the legal question of incompetency be determined by the trial court. By this time, the accuseds abilities may be measured against the specific demands a trial will make upon him.[88] If the mental examination on accused-appellant had been promptly and properly made, it may have served a dual purpose[89] by determining both his competency to stand trial and his sanity at the time of the offense. In some Philippine cases, the medical and clinical findings of insanity made immediately after the commission of the crime served as one of the bases for the acquittal of the accused. [90] The crime in the instant case was committed way back in December 1994, almost six (6) years ago. At this late hour, a medical finding alone may make it impossible for us to evaluate appellants mental condition at the time of the crimes commission for him to avail of the exempting circumstance of insanity. [91]Nonetheless, under the present circumstances, accused-appellants competence to stand trial must be properly ascertained to enable him to participate in his trial meaningfully. By depriving appellant of a mental examination, the trial court effectively deprived appellant of a fair trial. The trial courts negligence was a violation of the basic requirements of due process; and for this reason, the proceedings before the said court must be nullified. In People v. Serafica,[92] we ordered that the joint decision of the trial court be vacated and the cases remanded to the court a quo for proper proceeding. The accused, who was charged with two (2) counts of murder and one (1) count of frustrated murder, entered a plea of guilty to all three charges and was sentenced to death. We found that the accuseds plea was not an unconditional admission of guilt because he was not in full possession of his mental faculties when he killed the victim; and thereby ordered that he be subjected to the necessary medical examination to determine his degree of insanity at the time of commission of the crime. [93]

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IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 44, Dagupan City in Criminal Case No. 94-00860-D convicting accused-appellant Roberto Estrada and sentencing him to death is vacated and the case is remanded to the court a quo for the conduct of a proper mental examination on accusedappellant, a determination of his competency to stand trial, and for further proceedings. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Vitug, J., on official leave. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 111397 August 12, 2002

HON. ALFREDO LIM and RAFAELITO GARAYBLAS, petitioners, vs. THE COURT OF APPEALS, HON. WILFREDO REYES and BISTRO PIGALLE, INC., respondents. CARPIO, J.: The Case Before us is a petition for review on certiorari 1 of the Decision of the Court of Appeals dated March 25, 1993,2 and its Resolution dated July 13, 19933 which denied petitioners motion for reconsideration. The assailed Decision sustained the orders dated December 29, 1992, January 20, 1993 and March 2, 1993,4 issued by Branch 36 of the Regional Trial Court of Manila. The trial courts orders enjoined petitioner Alfredo Lim ("Lim" for brevity), then Mayor of Manila, from investigating, impeding or closing down the business operations of the New Bangkok Club and the Exotic Garden Restaurant owned by respondent Bistro Pigalle Inc. ("Bistro" for brevity). The Antecedent Facts On December 7, 1992 Bistro filed before the trial court a petition5 for mandamus and prohibition, with prayer for temporary restraining order or writ of preliminary injunction, against Lim in his capacity as Mayor of the City of Manila. Bistro filed the case because policemen under Lims instructions inspected and investigated Bistros license as well as the work permits and health certificates of its staff. This caused the stoppage of work in Bistros night club and restaurant operations. 6 Lim also refused to accept Bistros application for a business license, as well as the work permit applications of Bistros staff, for the year 1993.7 In its petition, Bistro argued that Lims refusal to issue the business license and work permits violated the doctrine laid down this Court in De la Cruz vs. Paras,8 to wit: "Municipal corporations cannot prohibit the operation of nightclubs. They may be regulated, but not prevented from carrying on their business." Acting on Bistros application for injunctive relief, the trial court issued the first assailed temporary restraining order on December 29, 1992, the dispositive portion of which reads:

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"WHEREFORE, respondent and/or his agents and representatives are ordered to refrain from inspecting or otherwise interfering in the operation of the establishments of petitioner (Bistro Pigalle, Inc.)."9 At the hearing, the parties submitted their evidence in support of their respective positions. On January 20, 1993, the trial court granted Bistros application for a writ of prohibitory preliminary injunction. The dispositive portion of the trial courts order declared: "WHEREFORE, in view of all the foregoing, Petitioners application for a writ of prohibitory preliminary injunction is granted, and Respondent, and any/all persons acting under his authority, are and (sic) ordered to cease and desist from inspecting, investigating and otherwise closing or impeding the business operations of Petitioner Corporations establishments while the petition here is pending resolution on the merits. Considering that the Respondent is a government official and this injunction relates to his official duties, the posting of an injunction bond by the Petitioners is not required. On the other hand, Petitioners application for a writ of mandatory injunction is hereby denied, for to grant the same would amount to granting the writ of mandamus prayed for. The Court reserves resolution thereof until the parties shall have been heard on the merits." 10 However, despite the trial courts order, Lim still issued a closure order on Bistros operations effective January 23, 1993, even sending policemen to carry out his closure order. On January 25, 1993, Bistro filed an "Urgent Motion for Contempt" against Lim and the policemen who stopped Bistros operations on January 23, 1993. At the hearing of the motion for contempt on January 29, 1993, Bistro withdrew its motion on condition that Lim would respect the courts injunction. However, on February 12, 13, 15, 26 and 27, and on March 1 and 2, 1993, Lim, acting through his agents and policemen, again disrupted Bistros business operations. Meanwhile, on February 17, 1993, Lim filed a motion to dissolve the injunctive order of January 20, 1993 and to dismiss the case. Lim insisted that the power of a mayor to inspect and investigate commercial establishments and their staff is implicit in the statutory power of the city mayor to issue, suspend or revoke business permits and licenses. This statutory power is expressly provided for in Section 11 (l), Article II of the Revised Charter of the City of Manila and in Section 455, paragraph 3 (iv) of the Local Government Code of 1991. The trial court denied Lims motion to dissolve the injunction and to dismiss the case in an order dated March 2, 1993, the dispositive portion of which stated: "WHEREFORE, premises considered, the Court hereby orders: (1) The denial of respondents motion to dissolve the writ of preliminary prohibitory injunction or the dismissal of the instant case; (2) Petitioner-corporation is authorized to remove the wooden cross-bars or any other impediments which were placed at its establishments, namely, New Bangkok Club and Exotic Garden Restaurant on February 12, 1993 and February 15, 1993, respectively, and thereafter said establishments are allowed to resume their operations; (3) All the other petitioners are allowed to continue working in the aforenamed establishments of petitioner-corporation if they have not yet reported; and

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(4) The hearing on the contempt proceedings is deferred to give sufficient time to respondent to elevate the matters assailed herein to the Supreme Court." 11 On March 10, 1993, Lim filed with the Court of Appeals a petition for certiorari, prohibition and mandamus against Bistro and Judge Wilfredo Reyes. Lim claimed that the trial judge committed grave abuse of discretion amounting to lack of jurisdiction in issuing the writ of prohibitory preliminary injunction. On March 25, 1993, the Court of Appeals rendered the assailed decision.12 In a resolution dated July 13, 1993, the Court of Appeals denied Lims motion for reconsideration. 13 On July 1, 1993, Manila City Ordinance No. 778314 took effect. On the same day, Lim ordered the Western Police District Command to permanently close down the operations of Bistro, which order the police implemented at once.15 The Ruling of the Court of Appeals In denying Lims petition, the Court of Appeals held that the trial court did not commit grave abuse of discretion since it issued the writ after hearing on the basis of the evidence adduced. The Court of Appeals reasoned thus: "x x x. A writ of preliminary injunction may issue if the act sought to be enjoined will cause irreparable injury to the movant or destroy the status quo before a full hearing can be had on the merits of the case. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the principal action. It is primarily intended to maintain the status quo between the parties existing prior to the filing of the case. In the case at bar, We find that the respondent Judge did not act improvidently in issuing the assailed orders granting the writ of preliminary injunction in order to maintain the status quo, while the petition is pending resolution on the merits. The private respondent correctly points out that the questioned writ was regularly issued after several hearings, in which the parties were allowed to adduce evidence, and argue their respective positions. The issuance of a writ of preliminary injunction is within the limits of the sound exercise of discretion of the court and the appellate court will not interfere, except, in a clear case of abuse thereof. x x x. WHEREFORE, the petition is DENIED DUE COURSE and is accordingly DISMISSED." 16 Hence, this petition. The Issues In their Memorandum, petitioners raise the following issues: 1. "DID RESPONDENT JUDGE COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING HIS SAID ASSAILED ORDERS OF DECEMBER 29, 1992, JANUARY 20, 1993 AND MARCH 2, 1993?"

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2. "DID RESPONDENT COURT OF APPEALS COMMIT REVERSIBLE ERRORS IN RENDERING ITS ASSAILED DECISION OF MARCH 25, 1993 AND ITS ASSAILED RESOLUTION OF JULY 13, 1993?" 3. "DID SAID CIVIL CASE NO. 92-63712 AND SAID CA-G.R. SP NO. 30381 BECOME MOOT AND ACADEMIC WHEN THE NEW BANGKOK CLUB AND THE EXOTIC GARDEN RESTAURANT OF PRIVATE RESPONDENT WERE CLOSED ON JULY 1, 1993 PURSUANT TO ORDINANCE NO. 7783?" The Ruling of the Court The petition is without merit. Considering that the constitutionality of Ordinance No. 7783 was not raised before the trial court or the Court of Appeals, and this issue is still under litigation in another case,17 the Court will deal only with the first two issues raised by petitioner. Validity of the Preliminary Injunction Bistros cause of action in the mandamus and prohibition proceedings before the trial court is the violation of its property right under its license to operate. The violation consists of the work disruption in Bistros operations caused by Lim and his subordinates as well as Lims refusal to issue a business license to Bistro and work permits to its staff for the year 1993. The primary relief prayed for by Bistro is the issuance of writs of mandatory and prohibitory injunction. The mandatory injunction seeks to compel Lim to accept Bistros 1993 business license application and to issue Bistros business license. Also, the mandatory injunction seeks to compel Lim to accept the applications of Bistros staff for work permits. The writ of prohibitory injunction seeks to enjoin Lim from interfering, impeding or otherwise closing down Bistros operations. The trial court granted only the prohibitory injunction. This enjoined Lim from interfering, impeding or otherwise closing down Bistros operations pending resolution of whether Lim can validly refuse to issue Bistros business license and its staffs work permits for the year 1993. Lim contends that the Court of Appeals erred in upholding the prohibitory injunction. Lim relies primarily on his power, as Mayor of the City of Manila, to grant and refuse municipal licenses and business permits as expressly provided for in the Local Government Code and the Revised Charter of the City of Manila. Lim argues that the powers granted by these laws implicitly include the power to inspect, investigate and close down Bistros operations for violation of the conditions of its licenses and permits. On the other hand, Bistro asserts that the legal provisions relied upon by Lim do not apply to the instant case. Bistro maintains that the Local Government Code and the Revised Charter of the City of Manila do not expressly or impliedly grant Lim any power to prohibit the operation of night clubs. Lim failed to specify any violation by Bistro of the conditions of its licenses and permits. In refusing to accept Bistros business license application for the year 1993, Bistro claims that Lim denied Bistro due process of law. The Court of Appeals held that the trial court did not commit grave abuse of discretion in issuing the prohibitory preliminary injunction. We uphold the findings of the Court of Appeals. The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides for such authority. Section 11 (l), Article II of the Revised Charter of the City of Manila, reads: "Sec. 11. General duties and powers of the mayor. The general duties and powers of the mayor shall be:

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x x x. (l) To grant and refuse municipal licenses or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinances are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other reason of general interest." (Emphasis supplied) On the other hand, Section 455 (3) (iv) of the Local Government Code provides: "Sec. 455. Chief Executive, Powers, Duties and Compensation: xxx. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the City and its inhabitants pursuant to Section 16 of this Code, the City Mayor shall: (3) x x x. (iv) Issue licenses and permits and suspend or revoke the same for any violation of the condition upon which said licenses or permits had been issued, pursuant to law or ordinance." (Emphasis supplied) From the language of the two laws, it is clear that the power of the mayor to issue business licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the power to suspend or revoke these licenses and permits is expressly premised on the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard. True, the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Such act of Lim violated Ordinance No. 771618 which expressly prohibits police raids and inspections, to wit: "Section 1. No member of the Western Police District shall conduct inspection of food and other business establishments for the purpose of enforcing sanitary rules and regulations, inspecting licenses and permits, and/or enforcing internal revenue and customs laws and regulations. This responsibility should be properly exercised by Local Government Authorities and other concerned agencies." (Emphasis supplied) These local government officials include the City Health Officer or his representative, pursuant to the Revised City Ordinances of the City of Manila,19 and the City Treasurer pursuant to Section 470 of the Local Government Code.20 Lim has no authority to close down Bistros business or any business establishment in Manila without due process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the Local Government Code. There is no provision in these laws expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro an opportunity to rebut the allegations that it violated the conditions of its licenses and permits.

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The regulatory powers granted to municipal corporations must always be exercised in accordance with law, with utmost observance of the rights of the people to due process and equal protection of the law.21 Such power cannot be exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lims exercise of this power violated Bistros property rights that are protected under the due process clause of the Constitution. Lim did not charge Bistro with any specific violation of the conditions of its business license or permits. Still, Lim closed down Bistros operations even before the expiration of its business license on December 31, 1992. Lim also refused to accept Bistros license application for 1993, in effect denying the application without examining whether it complies with legal prerequisites. Lims zeal in his campaign against prostitution is commendable. The presumption is that he acted in good faith and was motivated by his concern for his constituents when he implemented his campaign against prostitution in the Ermita-Malate area. However, there is no excusing Lim for arbitrarily closing down, without due process of law, the business operations of Bistro. For this reason, the trial court properly restrained the acts of Lim. Consequently, the Court of Appeals did not err in upholding the trial courts orders. The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. It is generally availed of to prevent actual or threatened acts, until the merits of the case can be disposed of.22 In the instant case, the issuance of the writ of prohibitory preliminary injunction did not dispose of the main case for mandamus. The trial court issued the injunction in view of the disruptions and stoppage in Bistros operations as a consequence of Lims closure orders. The injunction was intended to maintain the status quo while the petition has not been resolved on the merits. WHEREFORE, the petition is denied for lack of merit. The assailed Decision of the Court of Appeals in CA-G.R. SP NO. 30381 is AFFIRMED in toto. SO ORDERED. Puno, and Panganiban, JJ., concur. Sandoval-Gutierrez, J., on leave.

Footnotes
1

Under Rule 45 of the Rules of Court.

Penned by Justice Consuelo Ynares-Santiago and concurred in by Justices Luis Javellana and Minerva Gonzaga-Reyes, Rollo, pp. 193-196.
2 3

Rollo, p. 209.

Temporary restraining order dated December 29, 1992; Order of Injunction dated January 20, 1993 and Order of Denial of petitioners Motion to Dissolve Injunction dated March 2, 1993, issued by Judge Wilfredo Reyes, Regional Trial Court of Manila, Branch 36; Rollo pp. 76-77, 94-100, and 145152, respectively.
4 5

Docketed as Civil Case No. 92-63712. The New Bangkok Club and the Exotic Garden Restaurant.

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Bistro Pigalle, Inc., the owner-operator of the New Bangkok Club and the Exotic Garden Restaurant, was issued Mayors Permit by then Manila Mayor Gemiliano Lopez to operate as a night club, restaurant, with a caf day club which permit was valid until December 31, 1992.
7 8

123 SCRA 569 (1983). Rollo, pp. 76-77. Rollo, pp. 94-100. Rollo, p. 152. Supra, see note 2. Supra, see note 3.

10

11

12

13

An Ordinance Prohibiting the Establishment or Operation of Businesses providing Certain Forms of Amusement, Entertainment, Services and Facilities in the Ermita-Malate Area.
14 15

Rollo, pp. 218-219. Supra, see note 2; CA Decision, pp. 3-4, Rollo, pp. 195-196.

16

Pending before the 2 nd Division of the Court of Appeals, docketed as CA-S.P. G.R. No. 44429, entitled "Cotton Club Corp. vs. Hon. Alfredo Lim"; Rollo, p. 415.
17

An Ordinance Amending Section 1 of Ordinance No. 6507. This ordinance was approved on December 22, 1989 by then Manila Mayor Gemiliano Lopez.
18

"Section 994: Inspection and Supervision: All articles of food and drink sold or offered for sale, all places for their preparation, manufacture or sale, and all food travelers or persons engaged in the preparation, manufacture or sale of any kind of food or drink shall be at all times subject to inspection and supervision by the Director of Health (now City Health Officer) and to such rules and regulations as are promulgated or may be promulgated by him. x x x"
19

"Section 470. (d), sub-par 4: Inspect private commercial and industrial establishments within the jurisdiction of the local government unit concerned in relation to the implementation of tax ordinances, pursuant to the provisions under Book II of this Code."
20 21

Acebedo Optical Company, Inc. vs. Court of Appeals, 329 SCRA 314 (2000). Miriam College Foundation, Inc. vs. Court of Appeals, 348 SCRA 265 (2000). FIRST DIVISION

22

[G.R. No. 114944. June 19, 2001]

MANUEL C. ROXAS and AHMED S. NACPIL, petitioners, vs. HON. CONRADO M. VASQUEZ, Ombudsman and JOSE DE FERRER, Deputy Special Prosecutor, and the HONORABLE SANDIGANBAYAN, respondents.

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DECISION YNARES-SANTIAGO, J.: The instant petition for certiorari and prohibition seeks to set aside the Orders of the Ombudsman dated October 19, 1993[1] and February 10, 1994,[2] insofar as they found probable cause to charge petitioners Police General Manuel C. Roxas and Police Colonel Ahmed S. Nacpil for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act; and to prohibit respondents from trying petitioners in Criminal Case No. 18956 before the Sandiganbayan. Petitioners Roxas and Nacpil were Chairman and Member, respectively, of the Bids and Awards Committee of the PC-INP. The other Members of the Committee were: F/Brig. Gen. Mario C. Tanchanco F/Brig. Gen. Diosdado B. Codoy P/Lt. Col. Juhan A. Kairan P/Lt. Col. Concordio Apolonio P/Maj. Reynold E. Osia Sometime in September 1990, the PC-INP invited bids for the supply purchase of sixty five (65) units of fire trucks. Accordingly, the public bidding was held on September 14, 1990, where the following suppliers submitted their respective bids, to wit: Supplier 1. Aeolus Phil. 2. V.G. Roxas Enterprises 3 CISC 4. Tahei Co., Ltd. 5. Viceroy Const. Comml Corp. 6. 7. 8. Sumitomo Corp. Worldtrade Inter NW Accumetrix P Bid Price 1,218,240.00 1,720,764.00 1,943,549.64 2,292,784.00 2,385,775.00 2,521,730.00 2,700,000.00 2,844,844.20 2,985,000.00 3,012,606.00 3,016,348.30[3]

9. Comml Mfr. Corp. 10. Asianet Tech 11. Philipps Associate

The lowest bidder, Aeolus Philippines, was disqualified since its fire trucks had a water tank capacity of only 1,800 liters, far below the required 3,785 liter capacity.

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After the opening of the bids, Director General Cesar Nazareno created a Technical Evaluation Committee composed of four members, headed by Gen. Mario C. Tanchanco, to conduct ocular inspections of the overseas plant facilities and equipment of the five qualified lowest bidders. On December 4, 1990, the Technical Committee submitted its report to General Nazareno, rating the quality of the inspected fire trucks based on the ranking of their respective companies from the lowest to the highest bidder as follows: 1. Toyota Morita 2. Ssangyong

3. Nikki-Hino 4. Morita-Isuzu On December 18, 1990, the Bids and Awards Committee came up with its own listing of lowest bidders whose offered fire trucks met with the agencys minimum requirements, as follows: 1. V.G. Roxas Enterprises (Kanglim) 2. CISC (Ssangyong) 3. Taihei Corp. (Nikki/Hino) 4. Sumitomo Corp. (Isuzu Morita)

On December 20, 1990, Gen. Tanchanco submitted his Inspection Findings [4] to Gen. Nazareno, recommending only two fire trucks, namely Morita Isuzu and Nikki-Hino. On the other hand, on December 28, 1990, the Bids and Awards Committee voted to award the contract in favor of the Korean company CISC, which offered Ssangyong fire trucks.[5] On January 2, 1991, it submitted its recommendation to Gen. Nazareno for the procurement of Ssangyong fire trucks. [6] Gen. Nazareno, however, as approving authority, refused to act on the recommendation and, instead, created a Review Committee with Gen. Flores as Chairman. Gen. Tanchanco also submitted his Inspection Findings to this Review Committee, reiterating his recommendation of the Morita Isuzu and Nikki-Hino fire trucks. On March 21, 1991, Gen. Flores submitted his Memorandum to Gen. Nazareno, stating that the action of the Bids and Awards Committee resulted in a failure to bid. [7] Accordingly, Gen. Nazareno ordered the Bids and Awards Committee to review its recommendations and consider the findings of the Review Committee. In compliance with the directive, the Bids and Awards Committee limited its choice to the two brands recommended by Gen. Tanchanco and, by majority vote, elected Nikki-Hino of the Tahei Co., Ltd. as the lower bidder. Thus, the Bids and Awards Committed submitted its Memorandum to Gen. Nazareno dated May 9, 1991, embodying the aforesaid recommendation.[8] Thereafter, the Contract of Purchase and Sale of sixty-five units of Nikki-Hino fire trucks was executed between Gen. Nazareno, on behalf of the PC-INP, and Tahei Company, Ltd. The corresponding Purchase Order was then prepared with the following signatories: 1. Col. Nicasio Custodio, Chief, PNP Logistics Support Command 2. Major Obedio Espea, Acting Chief, PNP Procurement Center 3. General Cesar Nazareno, Director General, PNP

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4. Luis Santos, Secretary, DILG Pursuant to a disbursement voucher signed by Custodio, Espea and Gen. Nazareno, together with the PNP Chief Accountant, Generosa Ramirez, the PNP paid Tahei Co., Ltd. the amount of P167,335,177.24, representing marginal deposit for the sixty-five units of fire truck. The Disbursement Voucher showed that, while the bid price of Tahei Co., Ltd. was only P2,292,784.00 per unit, the price appearing on the Purchase Order was P2,585,562.00 per unit. Hence, there was a discrepancy of P292,778.00 per unit of fire truck, or a total of P19,030,570.00 for all the sixty-five fire trucks. The Commission on Audit discovered the irregularities in the bidding, awarding and purchase of the sixty five fire trucks, thus prompting then DILG Secretary Rafael Alunan III to file a complaint on February 12, 1993 for violation of Section 3 (e) of Republic Act No. 3019 before the Ombudsman, against the following: 1. Dir. Gen. Cesar Nazareno, PNP 2. Dep. Dir. Manuel Roxas, PNP 3. Fire Marshal Mario Tanchanco 4. Fire B/Gen. Diosdado Godoy (Ret.) 5. P/Sr. Supt. Ahmed Nacpil, PNP 6. P/Supt. Juhan Kairan, PNP 7. CInsp. Reynaldo Osea, PNP 8. Dep. Dir. Gen. Gerardo Flores, PNP 9. Dir. Nicasio Custodio, PNP 10. Supt. Obedio Espea, PNP 11. Former DILG Secretary Luis Santos 12. Ms. Generosa Ramirez The Deputy Ombudsman for the Military conducted a preliminary investigation where respondents submitted their respective counter-affidavits. On March 19, 1993, it recommended the indictment of all respondents, except Generosa Ramirez.[9] On review, the Office of the Special Prosecutor Review Committee recommended the dismissal of the complaints against Manuel Roxas, Ahmed Nacpil, Diosdado Codoy, Juhan Kairan and Generosa Ramirez. [10] This latter recommendation was approved by the Special Prosecutor and the Ombudsman in a Memorandum dated April 15, 1993. Accordingly, the appropriate Information was filed by the Ombudsman before the Sandiganbayan, where it was docketed as Criminal Case No. 18956, against Cesar Nazareno, Gerardo Flores, Mario Tanchanco, Nicasio Custodio, Reynold Osia, Obedeo Espena and Luis Santos. [11] Roxas, Nacpil, Codoy, Kairan and Ramirez were not included among the accused. However, upon motion of Generals Flores and Tanchanco, a reinvestigation was conducted by the Office of the Special Prosecutor. On October 19, 1993, without any notice to or participation of petitioners, the Office of the Special Prosecutor issued the first assailed Order, dismissing the charges against Flores and Tanchanco, and recommending that Gen. Manuel Roxas, P/Lt. Col. Ahmed Nacpil, P/Lt. Col. Julian Kairan be likewise indicted. Deputy Special Prosecutor Jose de Ferrer voted for the approval of the

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recommendation, while Special Prosecutor Aniano A. Desierto dissented. Ombudsman Conrado M. Vasquez approved the recommendation. Petitioners Roxas and Nacpil, together with Kairan, filed a Motion for Reconsideration. The Review Committee of the Office of the Special Prosecutor recommended that the Motion be granted and the charge against the movants be dismissed. However, Deputy Special Prosecutor de Ferrer and Ombudsman Vasquez disapproved the recommendation in the second assailed Order dated February 10, 1994. Thus, on March 27, 1994, the Office of the Ombudsman filed an Amended Information with respondent Sandiganbayan,[12] impleading petitioners as additional accused. Hence, the instant petition anchored upon the following grounds: RESPONDENTS OMBUDSMAN VASQUEZ AND DSP DE FERRER ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING, ON REINVESTIGATION, PETITIONERS LIABLE FOR ALLEGED CRIMINAL VIOLATION OF SECTION 3 (E) OF THE ANTI-GRAFT & CORRUPT PRACTICES ACT CONSIDERING THAT: A. 1. THE ORDERS, ANNEXES A AND A-1 FATALLY SUFFER FROM PROCEDURAL INFIRMITIES IN THAT: THE ORDER DATED 15 APRIL 1993 DISMISSING THE CHARGE AGAINST PETITIONERS HAD LONG BECOME FINAL. HENCE, IT COULD NO LONGER BE RE-OPENED ON REINVESTIGATION SOUGHT BY GENERALS FLORES, TANCHANCO AND THE OTHER ACCUSED. RESPONDENT OMBUDSMAN VASQUEZ AND THE OSP HAD LOST JURISDICTION OVER PETITIONERS UPON ITS DISMISSAL ORDER DROPPING THE CHARGES AGAINST THEM FOR INSUFFICIENCY OF EVIDENCE. ON REINVESTIGATION, NO NEW MATTER OR EVIDENCE WAS PRESENTED BY GENERALS FLORES, TANCHANCO AND THE OTHER ACCUSED TO WARRANT RESPONDENT OMBUDSMANS REVERSAL OF ITS EARLIER ORDER DISMISSING THE CHARGE AGAINST PETITIONERS. PETITIONERS INDICTMENT, ON REINVESTIGATION, WAS WITHOUT NOTICE NOR PARTICIPATION OF PETITIONERS, HENCE, NULL AND VOID FOR BEING VIOLATIVE OF THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS.

2.

3.

4.

B. IN ANY EVENT, THERE EXISTS NO PROBABLE CAUSE AGAINST PETITIONERS FOR VIOLATION OF SECTION 3 (E) OF THE ANTI-GRAFT & CORRUPT PRACTICES ACT. [13] Petitioners invoke Rule II, Section 7 of the Rules of Procedure of the Office of the Ombudsman, which provides that Motions for Reconsideration or Reinvestigation against approved Orders or Resolutions must be filed within fifteen (15) days from notice of the same. [14] They argue that no such Motion for Reconsideration or Reinvestigation was filed by any of the complainants, namely, the DILG, the Commission on Audit or the PNP, of the April 15, 1993 Memorandum which dismissed the charges against them for insufficient evidence. Indeed, no such Motion for Reconsideration or Reinvestigation had ever been filed to date. Petitioners further allege that while some of the accused in Criminal Case No. 18956 filed Motions for Reinvestigation, none of the said Motions questioned the dismissal of the charges against them. Hence, petitioners argue that the dismissal had become final and could no longer be opened during reinvestigation. In criminal prosecutions, a reinvestigation, like an appeal, renders the entire case open for review. It matters not that the complainants did not seek a reinvestigation or reconsideration of the dismissal of the charges against petitioners. Consistent with its independence as protector of the people [15] and as prosecutor to ensure accountability of public officers, the Ombudsman is not and should not be limited in its review by the action or inaction of complainants. On the other hand, it is clear from Section 15 of R.A.

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6770 that the Ombudsman may motu proprio conduct a reinvestigation to assure that the guilty do not go unpunished. Likewise, petitioners insistence that the Ombudsman and the Sandiganbayan had lost jurisdiction over them after the initial dismissal of the charges against them is untenable. In the case of Abdula v. Guiani,[16] this Court held: With respect to the allegation that the respondent had no legal authority to order a reinvestigation of the criminal charge considering that the said charge had been previously dismissed as against them, we hold that respondent did not abuse his discretion in doing so.[17] It is not material either that no new matter or evidence was presented during the reinvestigation of the case. It should be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor, or in this case the Office of the Ombudsman, to review and re-evaluate its findings and the evidence already submitted. Neither do the lack of notice to, or participation of, petitioners at the reinvestigation render the questioned issuances of respondent Office of the Ombudsman null and void. This was firmly settled in the recent case of Espinosa v. Office of the Ombudsman,[18] where we held as follows -xxx. And even without such notice, we agree with the observations of the Sandiganbayan that under the Rules of Procedures of the Office of the Ombudsman [Administrative Order No. 07], particularly Sec. 7, in relation to Sec. 4, while complainants in preliminary investigation before the Ombudsman actively participated therein, their participation is no longer accorded to them as a matter of right in the stage of the reinvestigation. In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated with due process in its strict judicial sense.[19](underscoring ours) At any rate, petitioners cannot argue that they have been deprived of due process. The rule is well established that due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or an opportunity to move for a reconsideration of the action or ruling complained of.[20] In the case at bar, the record clearly shows that petitioners not only filed their respective Counter-Affidavits[21] during the preliminary investigation, they also filed separate Motions for Reconsideration[22] of the October 19, 1993 Order of the Ombudsman impleading them as accused in Criminal Case No. 18956. Finally, this Courts consistent policy has been to maintain non-interference in the determination of the Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. This observed policy is based not only on respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the Court will be seriously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped with cases if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.[23] A careful review of the records fail to show any abuse of discretion on the part of the Ombudsman sufficient for us to interfere in the latters investigatory and prosecutory functions. WHEREFORE, in view of all the foregoing, the instant petition is DISMISSED. SO ORDERED. Davide, Jr., C.J. (Chairman), Puno, Kapunan and Pardo, JJ., concur. Republic of the Philippines SUPREME COURT Manila

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THIRD DIVISION A.M. No. RTJ-02-1674 January 22, 2004

BAILINANG P. MAROHOMBSAR, complainant, vs. JUDGE SANTOS B. ADIONG, respondent. RESOLUTION CORONA, J.: This is a complaint filed against Judge Santos B. Adiong of the Regional Trial Court, Branch 8, Marawi City, Lanao del Sur, charging him with gross ignorance of law, abuse of discretion and conduct unbecoming of a judge in connection with his issuance of a temporary restraining order (TRO) and a preliminary restraining order in Civil Case No. 1670-99, entitled Ms. Yasmira N. Pangadapun vs. Ms. Bailinang P. Marohombsar. After respondent filed his comment, we issued a resolution on February 6, 2000 referring the case to Associate Justice Eugenio S. Labitoria of the Court of Appeals for investigation, report and recommendation. Complainant Marohombsar was the defendant in Civil Case No. 1670-99 for "injunction with prayer for preliminary injunction." The case was filed on March 17, 1999 by Yasmira Pangadapun, daughter of Judge Yusoph Pangadapun of RTC Branch 10, Marawi City. In the said complaint, Pangadapun questioned the legality of Marohombsars appointment by DSWD Regional Secretary Salic-Malna as provincial social welfare officer V of the Department of Social Welfare and Development Autonomous Region for Muslim Mindanao (DSWD-ARMM). Prior to Marohombsars appointment, Pangadapun used to occupy said position as officer-in-charge. Upon the filing of the said complaint, respondent judge issued a TRO and set the hearing on the application for the issuance of a writ of preliminary injunction on April 6, 1999. Summons, together with a copy of the complaint and a notice indicating that a preliminary conference would be held on March 22, 1999, was also served on both parties. On March 18, 1999, Marohombsar filed an ex parte urgent motion to dissolve the TRO. Pangadapun was given until March 26, 1999 to comment and, pending the filing of the same, the TRO was extended up to said date. On March 22, 1999, respondent issued an order stating that a preliminary conference had been held and that both parties had waived the raffle of the case. He reset the hearing on the application for the issuance of a writ of preliminary injunction from April 6, 1999 to April 5, 1999 at 2:00 p.m. On March 29, 1999, respondent gave Pangadapun up to April 5, 1999 to file her comment and again, the TRO was extended to that date. During the hearing on the application for the issuance of a writ of preliminary injunction on April 5, 1999, none of the lawyers appeared. Hence, respondent considered it submitted for resolution and issued the preliminary injunction the following day. In his partial Comment dated November 13, 2000, respondent denied that: (1) he issued the TRO in favor of Pangadapun without benefit of a hearing; (2) in his order dated March 22, 1999, he made it appear that a preliminary conference was held where the parties agreed to waive the raffle of the case, when in fact there was none; (3) he falsified the records of the case and (4) he granted the preliminary injunction without a hearing. He alleged that the complaint was purely a harassment case filed by a disgruntled party because of the latters failure to obtain a favorable resolution from him. Although respondent judge admitted that

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Judge Yusoph Pangadapun and Judge Abdulhakim Ibrahim were his distant relatives and townmates, he stressed that "never in our careers in the judiciary have we interfered nor influenced one another on any pending case before our courts." During the preliminary hearing of the complaint on April 18, 2002 before Justice Labitoria, the parties agreed to have the case decided based on the pleadings presented. Respondent submitted the following additional evidence and exhibits to strengthen his case: a) partial Comment on the Complainants Affidavit-Complaint; b) 2nd Indorsement dated December 11, 2000 in OCA IPI No. 00-929-RTJ executed by Judge Abdulhakim A.R. Ibrahim showing that the complainant likewise filed an administrative case against him involving the same parties and cause of action, and c) Supreme Court resolution dated September 11, 2001 dismissing the administrative case against Judge Ibrahim. On the other hand, complainant filed her "comment/objection to respondents formal offer of exhibits" on the ground that all the documents were irrelevant and immaterial to the instant case. In his final report and recommendation, Justice Labitoria recommended that respondent judge be absolved of all the charges against him. We find the recommendation of Justice Labitoria to be supported by the evidence and we approve the same. A TRO is generally granted without notice to the opposite party and is intended only as a restraint on him until the propriety of granting a temporary injunction can be determined. It goes no further than to preserve the status quo until that determination. 1 Respondent judge was justified in issuing the TRO ex parte due to his assesment of the urgency of the relief sought. Rule 58, Section 5 of the 1997 Rules of Civil Procedure provides: Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two (72) hours provided therein.

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Complainant also contends that respondent issued an order dated March 22, 1999 making it appear that a preliminary conference was held and the parties agreed to waive the raffle of the case when, in truth and in fact, no conference was held. We are not persuaded. The order of March 22, 1999 stated in part: In the preliminary conference scheduled this morning, counsels of both parties jointly agreed to waive the raffling of the case and for this court to continue further proceedings considering that the plaintiff is the daughter of Hon. Yusoph Pangadapun, Presiding Judge of RTC-Branch 10 and per manifestation of Atty. Tingcap Mortaba, counsel for the plaintiff, should the case be raffled to Branch 9, the Presiding Judge, Hon. Amer R. Ibrahim will voluntarily inhibit himself from hearing the case. In the summary hearing that followed for the purpose of determining whether the TRO previously issued on March 17, 1999 shall be extended or not, the counsels is (sic) submitting the same for resolution on the basis of the pleading. We note that complainant did not dispute the order of respondent judge immediately after its issuance. Hence, the presumption was that the order in question was proper and well taken. Complainant likewise insists that respondent judge tampered with the records of the case, as shown by its inconsistent pagination. We agree with the finding of Justice Labitoria who accepted respondent judges explanation that: Resolutions or orders are dictated either in open Court or inside the chamber. The attending stenographers type the same in a draft form and then presented to me for proper correction or modification before finally typing them for my signature. Because of the many number of cases calendared daily and other related works being attended to, all this paper works take a little time to finish until finally attach (sic) to the records of the cases. This explains the little delay sometimes in sewing or attaching some orders or other Court processes to the records. All of this is always under the strict and direct supervision of the Branch Clerk of Court. In the same investigation report, Justice Labitoria went on to say: Besides, complainant merely assumes that respondent judge doctored the records to favor plaintiff. Her mind was already set that it would be impossible for the staff or respondent judge not to commit any error in sewing the records. However, as human beings all of us are prone to commit some mistakes. As what happened in the instant case. Thus, a mere suspicion that a judge was partial to party is not enough as there should be adequate evidence to prove the charge. Finally, complainants assertion that she was denied due process because the preliminary injunction was issued without hearing is likewise untenable. In applications for preliminary injunction, the dual requirement of prior notice and hearing before injunction may issue has been relaxed to the point that not all petitions for preliminary injunction need undergo a trial-type hearing, it being doctrinal that a formal or trial-type hearing is not, at all times and in all instances, essential to due process.2 The essence of due process is that a party is afforded a reasonable opportunity to be heard and to present any evidence he may have in support of his defense. In the present case, complainant was able to move for a reconsideration of the order in question, hence her right to due process was not in anyway transgressed. We have ruled that a party cannot claim that he has been denied due process when he has availed of the opportunity to present his position. 3

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Even assuming for the sake of argument that respondent judge erred in ordering the issuance of the writ of preliminary injunction, we ruled in Equatorial Realty vs. Anunciacion, Jr.4 that, as a matter of public policy, the acts of a judge in his official capacity are not subject to disciplinary action even though such acts are erroneous, provided he acts in good faith and without malice. Respondent judge, or any other member of the bench for that matter, is presumed to have acted regularly and in the manner that preserves the ideal of the cold neutrality of an impartial judge implicit in the guarantee of due process. 5 WHEREFORE, the administrative complaint against Judge Santos B. Adiong is hereby DISMISSED for lack of merit. SO ORDERED. Vitug, (Chairman), Sandoval-Gutierrez, and Carpio-Morales, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 84818 December 18, 1989 PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner, vs. JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS COMMISSION,respondents. Rilloraza, Africa, De Ocampo & Africa for petitioner. Victor de la Serna for respondent Alcuaz.

REGALADO, J.: This case is posed as one of first impression in the sense that it involves the public utility services of the petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only one rendering such services in the Philippines. The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner Jose Luis Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated September 2, 1988, which directs the provisional reduction of the rates which may be charged by petitioner for certain specified lines of its services by fifteen percent (15%) with the reservation to make further reductions later, for being violative of the constitutional prohibition against undue delegation of legislative power and a denial of procedural, as well as substantive, due process of law. The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act No. 5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the Philippines, at such places as the grantee may select, station or stations and associated equipment and facilities for international satellite communications." Under this franchise, it was likewise granted the authority to "construct and operate such ground facilities as needed to deliver telecommunications services from the communications satellite system and ground terminal or terminals." Pursuant to said franchise, petitioner puts on record that it undertook the following activities and established the following installations:

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1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal. 2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I provided direct satellite communication links with the Pacific Ocean Region (the United States, Australia, Canada, Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite. 3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established. Pinugay II provided links with the Indian Ocean Region (major cities in Europe, Middle East, Africa, and other Asia Pacific countries operating within the region) thru the Indian Ocean INTELSAT satellite. 4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to temporarily assume the functions of Pinugay I and then Pinugay II while they were being refurbished. Pinugay III now serves as spare or reserved antenna for possible contingencies. 5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field, Pampanga as a television receive-only earth station which provides the U.S. Military bases with a 24-hour television service. 6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV) to take over the links in Pinugay I due to obsolescence. 3 By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the Philippines in the Agreement and the Operating Agreement relating to the International Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in the Convention and the Operating Agreement of the International Maritime Satellite Organization (INMARSAT) of 53 member nations, which two global commercial telecommunications satellite corporations were collectively established by various states in line with the principles set forth in Resolution 1721 (XVI) of the General Assembly of the United Nations. Since 1968, the petitioner has been leasing its satellite circuits to: 1. Philippine Long Distance Telephone Company; 2. Philippine Global Communications, Inc.; 3. Eastern Telecommunications Phils., Inc.; 4. Globe Mackay Cable and Radio Corp. ITT; and 5. Capitol Wireless, Inc. or their predecessors-in-interest. The satellite services thus provided by petitioner enable said international carriers to serve the public with indispensable communication services, such as overseas telephone, telex, facsimile, telegrams, high speed data, live television in full color, and television standard conversion from European to American or vice versa. Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public Service Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on June 17, 1987, petitioner was placed under the jurisdiction, control and regulation of respondent NTC, including all its facilities and services and the fixing of rates. Implementing said Executive Order No. 196, respondents required petitioner to apply for the requisite certificate of public convenience and necessity

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covering its facilities and the services it renders, as well as the corresponding authority to charge rates therefor. Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application 4 for authority to continue operating and maintaining the same facilities it has been continuously operating and maintaining since 1967, to continue providing the international satellite communications services it has likewise been providing since 1967, and to charge the current rates applied for in rendering such services. Pending hearing, it also applied for a provisional authority so that it can continue to operate and maintain the above mentioned facilities, provide the services and charge therefor the aforesaid rates therein applied for. On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing facilities, to render the services it was then offering, and to charge the rates it was then charging. This authority was valid for six (6) months from the date of said order. 5 When said provisional authority expired on March 17, 1988, it was extended for another six (6) months, or up to September 16, 1988. The NTC order now in controversy had further extended the provisional authority of the petitioner for another six (6) months, counted from September 16, 1988, but it directed the petitioner to charge modified reduced rates through a reduction of fifteen percent (15%) on the present authorized rates. Respondent Commissioner ordered said reduction on the following ground: The Commission in its on-going review of present service rates takes note that after an initial evaluation by the Rates Regulation Division of the Common Carriers Authorization Department of the financial statements of applicant, there is merit in a REDUCTION in some of applicant's rates, subject to further reductions, should the Commission finds (sic) in its further evaluation that more reduction should be effected either on the basis of a provisional authorization or in the final consideration of the case. 6 PHILCOMSAT assails the above-quoted order for the following reasons: 1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public service communications does not provide the necessary standards constitutionally required, hence there is an undue delegation of legislative power, particularly the adjudicatory powers of NTC; 2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order violates procedural due process for having been issued without prior notice and hearing; and (b) the rate reduction it imposes is unjust, unreasonable and confiscatory, thus constitutive of a violation of substantive due process. I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196, placing petitioner under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any standard in the exercise of its rate-fixing and adjudicatory powers. While petitioner in its petition-inchief raised the issue of undue delegation of legislative power, it subsequently clarified its said submission to mean that the order mandating a reduction of certain rates is undue delegation not of legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly requires an express conferment by the legislative body. Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the power therein conferred. We hold otherwise.

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Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner of the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this case, establishes a rate, its act must both be non- confiscatory and must have been established in the manner prescribed by the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. 7 It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required by the statute for the lawful exercise thereof. Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and prescribe rates pertinent to the operation of public service communications which necessarily include the power to promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section 6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network or components of the communications systems contemplated therein should be maintained at reasonable rates. We need not go into an in-depth analysis of the pertinent provisions of the law in order to conclude that respondent NTC, in the exercise of its rate-fixing power, is limited by the requirements of public safety, public interest, reasonable feasibility and reasonable rates, which conjointly more than satisfy the requirements of a valid delegation of legislative power. II. On another tack, petitioner submits that the questioned order violates procedural due process because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity to present its side before the order in question was issued, the confiscatory nature of the rate reduction and the consequent deterioration of the public service could have been shown and demonstrated to respondents. Petitioner argues that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a violation of due process. Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice and hearing are not required, but where an order applies to a named person, as in the instant case, the function involved is adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question need not be preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function but because the assailed order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a certificate of public convenience; and that petitioner is not the only primary source of data or information since respondent is currently engaged in a continuing review of the rates charged. We find merit in petitioner's contention. In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we made a categorical classification as to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus: Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates are meant to apply to all enterprises of a given kind throughout the Philippines-may partake of a legislative character, such is not the nature of the order complained of. Indeed, the same applies exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a report submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of its invested capital, which is

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denied by petitioner. Obviously, the latter is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the contents thereof and/or explain or complement the same, as well as to refute the conclusion drawn therefrom by the respondent. In other words, in making said finding of fact, respondent performed a function partaking of a quasi-judicial character, the valid exercise of which demands previous notice and hearing. This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al. 10to wit: It is also clear from the authorities that where the function of the administrative body is legislative, notice of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the administrative agency is essentially legislative, the requirements of notice and hearing are not necessary. The validity of a rule of future action which affects a group, if vested rights of liberty or property are not involved, is not determined according to the same rules which apply in the case of the direct application of a policy to a specific individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. In so far as generalization is possible in view of the great variety of administrative proceedings, it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing. 11 The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's financial statementswithout affording petitioner the benefit of an explanation as to what particular aspect or aspects of the financial statements warranted a corresponding rate reduction. No rationalization was offered nor were the attending contingencies, if any, discussed, which prompted respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a public service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its rates would adversely affect its operations and the quality of its service to the public considering the maintenance requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC based its questioned order. At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since the assailed order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of merit. While respondents may fix a temporary rate pending final determination of the application of petitioner, such rate-fixing order, temporary though it may be, is not exempt from the statutory procedural requirements of notice and hearing, as well as the requirement of reasonableness. Assuming that such power is vested in NTC, it may not exercise the same in an arbitrary and confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail the applicability of a different rule of statutory procedure than would otherwise be applied to any other order on the same matter unless otherwise provided by the applicable law. In the case at bar, the applicable statutory provision is Section 16(c) of the Public Service Act which provides:

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Section 16. Proceedings of the Commission, upon notice and hearing the Commission shall have power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary: xxx xxx xxx (c) To fix and determine individual or joint rates, ... which shall be imposed, observed and followed thereafter by any public service; ... There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196. It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first giving petitioner a hearing, whether the order be temporary or permanent, and it is immaterial whether the same is made upon a complaint, a summary investigation, or upon the commission's own motion as in the present case. That such a hearing is required is evident in respondents' order of September 16, 1987 in NTC Case No. 87-94 which granted PHILCOMSAT a provisional authority "to continue operating its existing facilities, to render the services it presently offers, and to charge the rates as reduced by them "under the condition that "(s)ubject to hearing and the final consideration of the merit of this application, the Commission may modify, revise or amend the rates ..." 12 While it may be true that for purposes of rate-fixing respondents may have other sources of information or data, still, since a hearing is essential, respondent NTC should act solely on the basis of the evidence before it and not on knowledge or information otherwise acquired by it but which is not offered in evidence or, even if so adduced, petitioner was given no opportunity to controvert. Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a final legislative act as to the period during which it has to remain in force pending the final determination of the case. 13An order of respondent NTC prescribing reduced rates, even for a temporary period, could be unjust, unreasonable or even confiscatory, especially if the rates are unreasonably low, since the utility permanently loses its just revenue during the prescribed period. In fact, such order is in effect final insofar as the revenue during the period covered by the order is concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and will unduly deprive petitioner of a reasonable return upon its property, a declaration of its nullity becomes inductible, which brings us to the issue on substantive due process. III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually result in a cessation of its operations and eventual closure of business. On the other hand, respondents assert that since petitioner is operating its communications satellite facilities through a legislative franchise, as such grantee it has no vested right therein. What it has is merely a privilege or license which may be revoked at will by the State at any time without necessarily violating any vested property right of herein petitioner. While petitioner concedes this thesis of respondent, it counters that the withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary, but it must be fair and reasonable. There is no question that petitioner is a mere grantee of a legislative franchise which is subject to amendment, alteration, or repeal by Congress when the common good so requires. 14 Apparently, therefore, such grant cannot be unilaterally revoked absent a showing that the termination of the operation of said utility is required by the common good. The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the consideration that it is not the owner of the property of the utility, or clothed with the general power of management incident to ownership, since the private right of ownership to such property remains and is not to be destroyed by the regulatory power. The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the public, then of the utility and of its patrons. Any regulation,

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therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. 15 Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by public utilities should be subject always to the requirement that the rates so fixed shall be reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic requirement of reasonableness comprehends such rates which must not be so low as to be confiscatory, or too high as to be oppressive. 16 What is a just and reasonable rate is not a question of formula but of sound business judgment based upon the evidence 17 it is a question of fact calling for the exercise of discretion, good sense, and a fair, enlightened and independent judgment. 18 In determining whether a rate is confiscatory, it is essential also to consider the given situation, requirements and opportunities of the utility. A method often employed in determining reasonableness is the fair return upon the value of the property to the public utility. Competition is also a very important factor in determining the reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet competition. 19 A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on the initial evaluation made on the financial statements of petitioner, contrary to respondent NTC's allegation that it has several other sources of information without, however, divulging such sources. Furthermore, it did not as much as make an attempt to elaborate on how it arrived at the prescribed rates. It just perfunctorily declared that based on the financial statements, there is merit for a rate reduction without any elucidation on what implications and conclusions were necessarily inferred by it from said statements. Nor did it deign to explain how the data reflected in the financial statements influenced its decision to impose a rate reduction. On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the public service, should the order of respondent NTC turn out to be unreasonable and improvident. The business in which petitioner is engaged is unique in that its machinery and equipment have always to be taken in relation to the equipment on the other end of the transmission arrangement. Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery and equipment necessarily entails a major adjustment or innovation on the business of petitioner. As pointed out by petitioner, any change in the sending end abroad has to be matched with the corresponding change in the receiving end in the Philippines. Conversely, any in the receiving end abroad has to be matched with the corresponding change in the sending end in the Philippines. An inability on the part of petitioner to meet the variegations demanded be technology could result in a deterioration or total failure of the service of satellite communications. At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing its machinery and equipment in order to keep up with the continuing charges of the times and to maintain its facilities at a competitive level with the technological advances abroad. There projected undertakings were formulated on the premise that rates are maintained at their present or at reasonable levels. Hence, an undue reduction thereof may practically lead to a cessation of its business. While we concede the primacy of the public interest in an adequate and efficient service, the same is not necessarily to be equated with reduced rates. Reasonableness in the rates assumes that the same is fair to both the public utility and the consumer. Consequently, we hold that the challenged order, particularly on the issue of rates provided therein, being violative of the due process clause is void and should be nullified. Respondents should now proceed, as they should heretofore have done, with the hearing and determination of petitioner's pending application for a certificate of public convenience and necessity and in which proceeding the subject of rates involved in the present controversy, as well as other matter involved in said application, be duly adjudicated with reasonable dispatch and with due observance of our pronouncements herein. WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2, 1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our resolution of

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September 13, 1988, as specifically directed against the aforesaid order of respondents on the matter of existing rates on petitioner's present authorized services, is hereby made permanent. SO ORDERED. Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, GrioAquino and Medialdea, JJ., concur. Padilla, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-18365 May 31, 1963

GEORGE DE BISSCHOP, petitioner-appellee, vs. EMILIO L. GALANG, in his capacity as Commissioner of Immigration, respondent-appellant. Engracio Fabre for petitioner-appellee. Office of the Solicitor General for respondent-appellant. REYES, J.B.L., J.: Appeal on questions of law from an order issued on 27 March 1961, in Civil Case No. 41477 of the Court of First Instance of Manila (Judge Antonio Canizares, presiding) the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, and for the proper determination of the case of herein petitioner, the Court hereby grants the petition for prohibition and orders respondent Commissioner of Immigration to desist and refrain from arresting and expelling the petitioner from the Philippines unless and until proper and legal proceedings are conducted by the Board of Commissioners of the Bureau of Immigration in connection with the Application for extension of stay filed by petitioner with said Board. The facts are not disputed. Petitioner-appellee George de Bisschop, an American citizen, was allowed to stay in this country for three years, expiring 1 August 1959, as the prearranged employee of the Bissmag Production, Inc., of which he is president and general manager. He applied for extension of stay with the Bureau of Immigration, in a letter dated 10 July 1959. In view, however, of confidential and damaging reports (Exhibits P, Q, and R) of Immigration Officer Benjamin de Mesa to the effect that the Bissmag Production, Inc., is more of a gambling front than the enterprise for promotion of local and imported shows that it purports to be, and that de Bisschop is suspect of having evaded payment of his income tax, the Commissioner of Immigration, in a communication of Customs of Iloilo demanded from petitioner the paytion of 10 September 1959, advised him that his application for extension of stay as a prearranged employee has been denied by the Board of Commissioners, and that he should depart within 5 days. Thereafter, counsel of de Bisschop requested for a copy of the adverse decision said Board, but the legal officer of the Bureau of Immigration replied, on 11 September 1959, in this tenor: In reply to yours of even date requesting that you furnished copy of the decision, order or resolution of the Board of Commissioners denying the application for extension of stay of Mr. GEORGE DE BISSCHOP, please be advised that, pursuant to immigration practice and procedure

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and as is usual in such cases where the result is a vote for denial, for reason of practicability and expediency, no formal decision, order resolution is promulgated by the Board. The denial of the petition for extension was expressed by the majority members of the Board as follows: For denial, Talabis, 8-24-59; O.K. for extension, De la Rosa, September 9; Denial, Galang, 9-10. Thereafter, Mr. Bisschop was simply advised of said denial as per letter of this Office dated September 10, 1959. In view thereof, you and your client are advised anew that Mr. Bisschop is hereby required to depart within five (5) days of this notice. No request for reinvestigation was made with the Bureau of Immigration. Instead, to forestall his arrest and the filing of the corresponding deportation proceedings, de Bisschop filed the present case on 18 September 1959. Pending resolution of the main case for prohibition, a writ of preliminary injunction was issued ex-parte by the courta quo on the same day ordering herein respondent-appellant to desist from arresting and detaining petitioner-appellee. During the hearing, only documentary evidence were presented. In his brief, appellant Commissioner raises two main issues: That the lower court erred (a) in holding that the Commissioners of Immigration are required by law to conduct formal hearings on all applications for extension of stay of aliens, and (b) in ruling that said Commissioners are enjoined to promulgate written decisions in such cases. After a careful study of the case, we fully agree with appellant's contention on several grounds. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1wph1.t The administration of immigration laws is the primary and exclusive responsibility of the Executive branch of the government. Extension of stay of aliens is purely discretionary on the part of the immigration authorities. Since Commonwealth Act No. 613, otherwise known as the Philippine Immigration Act of 1940, is silent as to the procedure to be followed in these cases, we are inclined to uphold the argument that courts have no jurisdiction to review the purely administrative practice of immigration authorities of not granting formal hearings in certain cases as the circumstances may warrant, for reasons of practicability and expediency. This would not violate the due process clause if we take into account that, in this particular case, the letter of appellant-commissioner advising de Bisschop to depart in 5 days is a mere formality, a preliminary step, and, therefore, far from final, because, as alleged in paragraph 7 of appellant's answer to the complaint, the "requirement to leave before the start of the deportation proceedings is only an advice to the party that unless he departs voluntarily, the State will be compelled to take steps for his expulsion". It is already a settled rule in this jurisdiction that a day in court is not a matter of right in administrative proceedings. The fact should not be lost sight of that we are dealing with an administrative proceeding and not with a judicial proceeding. As Judge Cooley, the leading American writer on Constitutional Law, has well said, due process of law is not necessarily judicial process; much of the process by means of which the Government is carried on, and the order of society maintained, is purely executive or administrative, which is as much due process of law, as is judicial process. While a day in court is a matter of right in judicial proceedings, in administrative proceedings, it is otherwise since they rest upon different principles. . . . In certain proceedings, therefore, of all administrative character, it

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may be stated, without fear of contradiction, that the right to a notice and hearing are not essential to due process of law. (Cornejo vs. Gabriel and Provincial Board of Rizal, 41 Phil. 188, 192-194) With respect to the contention that the decision of the Board of Commissioners on matters of petition for extension of stay of aliens should be promulgated in writing, appellee relies on Section 8 of the Immigration Act, which provides that in "any case coming before the Board of Commissioners, the decision of any two members shall prevail". However, we agree with the Solicitor General that the word "decision", as employed in this section, obviously refers to the number of "votes" necessary to constitute the decision of the said Board. The Sampaguita Shoe case (G. R. No. L-10285, 14 Jan. 1958), which was taken into account by the lower court, is not applicable to the case at bar; it applies to judicial decisions, as provided in Section 1, Rule 35, of the Rules of Court. On the other hand, as pointed out in appellant's brief, where the intention of the lawmaker is otherwise, the immigration laws specifically enumerate when the decisions of the Board of Commissioners shall be in writing, to wit: (1) in cases of appeal from a decision of the Board of Special Inquiry as to matters of admission or exclusion of aliens, as provided in Section 27 (c) of the Immigration Act; and (2) the decision of the Board of Commissioners in cases of deportation under Section 37, paragraphs (a) and (c). But there is nothing in the immigration law which provides that the Board of Commissioners must render decisions on petitioners for extension of stay. Finally, though not brought out in appellant's brief there is another reason why prohibition will not lie herein. Prohibition is not favored by the Courts. The writ should issue with caution, and only in cases of extreme necessity which condition does not obtain in this case. Moreover, it will issue only if there is no other plain, speedy, and adequate remedy (Section 2, Rule 67, Rules of Court). This Court has already ruled that "the use of habeas corpus to test the legality of aliens' confinement and proposed expulsion from the Philippines is now a settled practice" (Lao Tang Bun v. Fabre, 81 Phil. 682, 683). This is because habeas corpus, aside from being thorough and complete, affords prompt relief from unlawful imprisonment of any kind, and under all circumstances. It reaches the facts affecting jurisdiction, or want of power, by the most direct method, and at once releases the applicant from restraint when it is shown to be unauthorized (cf. People ex rel. Livingston v. Wyatt, 186 N.Y. 383; 79 N.E. 330). And it has already been held by a long line of American decisions that the existence of this adequate remedy by habeas corpus will bar the issuance of a writ of prohibition. It has been repeatedly decided by the Supreme Court that the writ of habeas corpus is a proper remedy for reviewing proceedings for the deportation of aliens and to ascertain whether jurisdiction has been, therein exceeded. United States v. Jung Ah Lung, 124 U.S. 621, 8 S. Ct. 663, 31 L. Ed. 591; Chin Yow v. United States, 208 U.S. 8, 28 S. Ct. 201, 62 L. Ed. 369; Ng Fung Ho v. White, 259 U.S. 276, 42 S. Ct. 492, 66 L. Ed. 938; Bilokumsky v. Tod, 263 U.S. 149, 44 S. Ct. 54, 68 L. Ed. 221. While in the state courts it is very generally held that the existence of an adequate remedy habeas corpus will prevent the issuance of a writ of prohibition. Livingston v. Wyatt, 186 N. Y. 383, 79 N.E. 330, 10 L.R.A. (N. S.) 159, 9 Ann. Cas. 972; Parks v. Ryan, 4 N.M. 176, 173 P. 858; In re Heffner, 16 Okl. Cr. 691, 182 P. 88; State v. Second Judicial District Court (Nev.) 18 P. (2d) 449; Wessels v. Superior Court, 200 Cal. 403, 253 P. 135, and in Bedford v. Wingfield, 27 Grat. 329, the Supreme Court of Virginia said that the writ of prohibition "issues only in cases of extreme necessity. . . . It is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists; and it is always a sufficient reason for withholding the writ, and the party aggrieved has another and complete remedy at law". (Kabadian v. Doak, 65 F. [2d] 202, 205). WHEREFORE, the order appealed from is reversed. The petition for prohibition is dismissed, and the writ of preliminary injunction issued by the court a quo is hereby dissolved, with costs against petitionerappellee George de Bisschop. So ordered. Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur. Labrador, J., took no part. Republic of the Philippines SUPREME COURT Manila

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FIRST DIVISION G.R. No. 81805 May 31, 1988 VAR-ORIENT SHIPPING CO., INC. and COMNINOS BROS., petitioners, vs. TOMAS D. ACHACOSO, in his capacity as Administrator of Philippine Overseas Employment Administration (POEA), EDGAR T. BUNYOG, VEDASTO NAVARRO, EUGENIO CAPALAD, RAUL T IS, ANTONIO TANIOAN, CELESTINO CASON, DANILO MANELA & ROBERTO GENESIS, respondents. Viray, Aseron & Associates for petitioners. The Solicitor General for public respondent.

GRIO-AQUINO, J.: Imputing grave abuse of discretion to the public respondent, the petitioners ask that the public respondent's decision dated September 9,1987 in POEA CASE No. (M) 86-11-1080 entitled "V AR-ORIENT SHIPPING CO., INC. and COMNINOS BROS. vs. EDUARDO H. ARSOLON, ET AL.," be annulled for having been rendered without due process of law, and that the writ of execution issued by the POEA Administrator be set aside for being premature because the decision is not yet final and executory as no copy of it had been received by petitioner's counsel. A temporary restraining order was issued by this Court to enjoin the execution of the decision complained of pending the determination of the merits of the petition. The petitioners filed a complaint with the Workers' Assistance and Adjudication Office, Philippine Overseas Employment Administration (POEA) against the private respondents Edgar T. Bunyog, Vedasto Navarro, Eugenio Capalad, Raul Tumasis, Antonio Tanioan, Celestino Cason, Danilo Manela and Roberto Genesis, crew members of the MPV "Silver Reefer," for having allegedly violated their Contracts of Employment with the petitioners which supposedly resulted in damages arising from the interdiction of the vessel by the International Transport Workers' Federation (ITF) at Kiel Canal, Germany, in March 1986. After joinder of the issues, the case was heard on March 4, 1987 where the parties agreed to submit their respective position papers and thereafter the case would be submitted for decision. Only the private respondents submitted a position paper. On the basis of the pleadings and memoranda (Annexes A, B, Code. D, E & F) the public respondent rendered a decision on September 9,1987 (Annex G), the dispositive part of which reads as follows: WHEREFORE, premises considered, judgment is hereby rendered ordering as follows: 1. Dismiss of the instant case with a reprimand and warning respondents Vedasto Navarro, Eugenio Capalad, Raul Tumasis, Antonio Tanioan, Celestino Cason, Danilo Manela and Roberto Genesis, against the commission of the same or similar offense otherwise it shall be dealt with more severe penalty; 2. Exclusion of Ricardo Llanes from this case; 3. Reprimanding complainant Var-Orient Shipping Co. for failure to comply with its obligations pursuant to POEA rules and regulations and warning

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against committing the same or a similar offense otherwise it shall be dealt with more severely; 4. That the case insofar as respondents Eduardo H. ArsoIon, Apolinario dela Cruz, Levy Montero and Danilo N. de la Cruz are concerned, be archived, while their names shall be included in the POEA watchlist until they shall have voluntarily submitted themselves to the jurisdiction of this office; 5. Payment by the complainants jointly and severally, unto Vedasto Navarro, Eugenio Capalad, Raul Tumasis, Antonio Tanioan, Celestino Cason, Danilo Manela and Roberto Genesis the amount of Pl,550.59 each, representing deductions from allotments, plus Pl,000.00 as and for attorney's fees; and 6. Payment by the complainants jointly and severally unto respondent Edgar T. Bunyog the amount of US$4,680.00 or its peso equivalent at the time of payment representing his salaries for the unserved portion of his employment contract plus P4,000.00 as and for attorney's fees. to be tendered thru this Office, ten (10) days from receipt of this decision. A copy of the decision was sent by registered mail and delivered by the postman to the petitioners' counsel, then Attorney Francisco B. Figura, at his address on the 4th Floor, TRC Building, Sen. Gil Puyat Avenue, Makati, Metro Manila, through the receptionist, Marlyn Aquino, on the groundfloor of said building on September 21, 1987. According to Attorney Figura, he did not receive the envelope containing the decision (p. 66, Rollo).<re||an1w> Petitioners allegedly learned about the decision only when the writ of execution was served on them on November 20,1987 by NLRC Deputy Sheriff Rene Masilungan and Attorney Wilfredo Ong. On November 23,1987, petitioners, through new counsel, Atty. Quentin Aseron, Jr., filed an 'urgent Motion to Recall Writ of Execution' on the ground that the decision had not been received by the petitioners, hence, it was not yet final and executory. On January 19, 1988, the public respondent denied the motion. In due time, this petition was filed wherein the petitioners allege that: (1) they were denied due process of law because the respondent Administrator resolved the case without any formal hearing; (2) the respondent Administrator gravely abused his discretion in denying petition petitioners' right to appeal, and (3) in awarding to the private respondent's damages which are not only excessive building unfounded. The petition is not meritorious. The petitioners' allegation that the issuance of the writ of execution was premature because the decision had not been received by their counsel is unconvincing, Atty. Figura's affidavit on the matter is selfserving. Petitioners failed to submit an affidavit of the receptionist Marlyn Aquino explaining what she did with the decision which she received for Atty. Figura. Under the circumstances, the respondent Administrator's ruling that the decision had been properly served on petitioners' counsel and that it is now final and unappealable, should be sustained.

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Equally unmeritorious is the petitioners 'allegation that they were denied due process because the decision was rendered without a formal hearing. The essence of due process is simply an opportunity to be heard (Bermejo vs. Banjos, 31 SCRA 764), or, as applied to administrative proceedings, an opportunity to explain one's side (Tajonera vs. Lamaroza, 110 SCRA 438; Gas Corporation of the Phil. vs. Hon. Inciong, 93 SCRA 653; Cebu Institute of Technology vs. Minister of Labor, 113 SCRA 257), or an opportunity to seek a reconsideration of the action or ruling complained of (Dormitorio vs. Fernandez, 72 SCRA 388). The fact is that at the hearing of the case on March 4,1987, it was agreed by the parties that they would file their respective memoranda and thereafter consider the case submitted for decision (Annex 7 of Bunyog's Comment). This procedure is authorized by law to expedite the settlement of labor disputes. However, only the private respondents submitted memoranda. The petitioners did not. On June 10, 1987, the respondents filed a motion to resolve (Annex 7, Bunyog's Comment). The petitioners' counsel did not oppose either the "Motion to Resolve" or the respondents "Motion for Execution of Decision" dated October 19, 1987 (Annex 10), both of which were furnished them through counsel. If it were true, as they now contend, that they had been denied due process in the form of a formal hearing, they should have opposed both motions. Furthermore, the petition for review does not allege that the petitioners are in possession of evidence, other than those which they had attached to their pleadings, which if produced would have altered the outcome of the case. The Administrator did not abuse his discretion in ordering the petitioners to pay respondent Edgar Bunyog's salaries for the unserved portion of his contract plus attorney's fees, in view of the Administrator's finding that Bunyog did not sign the letter of the other defendants to ITF, hence, 'he is deemed not to have committed any offense or act to warrant his dismissal." WHEREFORE, the petition for certiorari is denied for lack of merit. The temporary restraining order which We issued is hereby set aside. SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-46496 February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and NATIONAL WORKERS BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents. Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations. Antonio D. Paguia for National Labor Unon. Claro M. Recto for petitioner "Ang Tibay". Jose M. Casal for National Workers' Brotherhood. LAUREL, J.:

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The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the majority opinion of this Court: 1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o cunado se termine la obra; 2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma; 3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por terminacion del contrato en virtud del paro. The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers: 1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather. 2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.) 5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.) 6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a modern labor legislation of American origin where the industrial peace has always been the rule. 7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood.

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8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations. 9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein. The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor Union, Inc. In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have reexamined the entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of counsel have no evidentiary value. The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions in the determination of disputes between employers and employees but its functions are far more comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or compensation, hours of labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to determine specific controversies between labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of governmental powers.

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In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to "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 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." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. There are primary rights which must be respected even in proceedings of this character: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court inEdwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration." (3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. (4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . 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 inn judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"

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(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.) (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or commission, but in our case there is no such statutory authority. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it. In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a national way, a conclusion of law. This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to systematically discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that even within the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussions, we have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered. Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-44251 May 31, 1977 FELIX MONTEMAYOR, petitioner, vs. ARANETA UNIVERSITY FOUNDATION, JUAN SALCEDO, JR., TOMAS DAVID, MARTIN CELINO, MARCELO AMIANA, as Members of the Panel of Investigators, Members of the Board of Trustees, FR. ROMEO PELAYO and the HONORABLE SECRETARY OF LABOR, respondents. E. B. Garcia & Associates for petitioner. Marcelo C. Amiana for private respondents. Solicitor General Estelito P. Mendoza Assistant Solicitor General Reynato S. Puno and Solicitor Jesus V. Diaz respondent Secretary of Labor.

FERNANDO, J.: The protection to labor mandate is more of a reality with the present Constitution expressly providing for security, of tenure. 1 Moreover, for a university professor, aptly referred to as a tiller in the vineyard of the mind, there is the guarantee of academic freedom. 2 Nonetheless, for cause duly shown there may be a forced termination of his services. It is essential though that prior to his removal, procedural due process be observed. The grievance alleged by petitioner in this case, a university professor, was that there was a failure to comply with such a requisite. When therefore respondent Secretary of Labor granted a clearance to the private respondent, the Araneta University Foundation, 3 for his dismissal for immorality he instituted this certiorari proceeding. A thorough and exhaustive comment, considered as the answer, filed by Solicitor General Estelito P. Mendoza 4 with full support from the record, negates such a contention. There is no basis for a reversal. certiorari does not lie. It is undisputed that petitioner Felix Montemayor was a fulltime professor of respondent Araneta University Foundation, serving as head of its Humanities and Psychology Department, Previously, he was on the faculty of other educational institutions. There was, on April 17, 1974, a complaint for immorality lodged against him by the Chaplain of the Araneta University Foundation for alleged immorality. Its then President, Dr. Juan Salcedo, Jr., created a committee to investigate such charge. The first hearing, which took place on April 24, 1974, was attended by petitioner as well as complainant with his two witnesses. One of them. Leonardo de Lara, submitted an affidavit. Petitioner sought the postponement of the investigation to May 3, 1974. It was granted. On that occasion, he was furnished a copy of the affidavit of the other witness, Macario Lacanilao. The accusation centered on conversations on sex and immoral advances committed against the person of Leonardo de Lara. There was cross-examination by petitioner of the witnesses against him. With the assistance of counsel, he filed on May 28, 1974 a motion to dismiss or to hold the hearing in abeyance. He likewise filed an affidavit to sustain his defense on June 17, 1974. The report and recommendation of the investigating committee came on July 8, 1974. It was adverse to petitioner, who was found morally responsible for the act complained of. The recommendation was for his demotion in rank by one degree. The then President Juan Salcedo, Jr., on August 5, 1974, adopted such recommendation and thereafter referred the same to the Board of Trustees of private respondent for appropriate action. Subsequently, on November 8, 1974, with new charges being filed by Professor Luis R. Almazan, one Jaime Castaneda, and Jesus Martinez against petitioner for conduct unbecoming of a faculty member, another committee was appointed. Then came his preventive suspension, ordered to last until the administrative investigation was concluded. There was a motion by petitioner for the postponement of the

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hearing set for November 18 and 19, 1974, but the same was denied. The hearing proceeded in his absence. There was testimony by Professor Luis Almazan and Jaime Castaneda. Thereafter, on December 5, 1974, the Committee submitted its report finding the charges against petitioner to have been sufficiently established and recommending to the President and the Board of Trustees of the Araneta University Foundation his separation from the University, in accordance with Sections 116 and 351 of the Manual of Policies of the University. The Committee found as established: "1. That immoral advances on several occasions have been made by respondent [herein petitioner] on Prof. Luis Almazan 2. That immoral advances have also been made by respondent on Jaime Castaneda, a student- employee of the university on several occasions; 3. That said immoral advances were frustrated because both Professor Almazan and Mr. Castaneda had refused to accept them; 4. That both witnesses and victims of said immoral advances have declared that the behavior of respondent was detrimental [and] prejudicial to the moral and educational standards of the Araneta University Foundation; 5. That because of said behavior, respondent should not continue as Professor in the University; and 6. That the acts of respondent complained of are offensive to good morals [and] inimical to the welfare of students and greatly prejudicial to [the] interest and educational objectives of University, hence the same are highly reprehensible." 5 His dismissal was then ordered on December 10, 1974, effective November 15, 1974, the date of his preventive suspension. The University, on December 12, 1974, filed with the National Labor Relations Commission a report of his suspension and application for clearance to terminate his employment. Meanwhile, on November 21, 1974, petitioner in turn lodged a complaint with the National Labor Relations Commission against private respondents for reinstatement and payment of back wages and salaries, with all the privileges, benefits and increments attendant thereto. There was a motion to dismiss on the part of the latter. Both the labor arbiter and the National Labor Relations Commission found in favor of petitioner. He was ordered reinstated to his former position with back wages and without loss of seniority and other privileges. Petitioner's complaint for unfair labor practice was, however, dismissed. Private respondents appealed to respondent Secretary of Labor who, on July 14, 1976, set aside the Commission's order for his reinstatement. He found petitioner's dismissal justified, Nor was he persuaded by the plea that there was denial of due process. He was satisfied with the procedure followed by private respondent. Moreover, he could not have ignored the fact that the controversy between the parties was passed upon and the parties heard on their respective contentions in the proceedings before the labor agencies. Respondent University was, however, required to pay complainant the amount of P14,480.00 representing the latter's accrued back wages which the former voluntarily offered to extend him. Dissatisfied with the Secretary's decision, petitioner filed this instant petition for certiorari. 1. The present Constitution, as noted, expanded the scope of the protection to labor mandate by specifying that the State shall assure the right of workers to security of tenure. This Court, as stressed in Philippine Air Lines, Inc. v. Philippine Air Lines Employees Associations 6 is called upon to manifest realty to a constitutional command." 7Subsequently, in Almira v. B. F. Goodrich Philippines, 8 it was the ruling of this Tribunal that even where disciplinary action against an employee is warranted, "where a penalty less punitive [than dismissal] would suffice, whatever missteps may be committed ought not to be visited with a consequence so severe." 9 An instructor or member of a teaching staff of a university was held, in the leading case of Feati University v. Bautista, 10 to be an employee. As such, he is entitled to that security of tenure guaranteed by the Constitution. The explicit pronouncement in Feati University v. Bautista was foreshadowed by Far Eastern University v. Court of Industrial Relations, 11 a 1962 decision. While a faculty member such as petitioner may be dismissed, it must be for cause. What is more, there must be clearance from the Secretary of Labor. So it is provided in the Labor Code. 12 2. The stand taken by petitioner as to his being entitled to security of tenure is reinforced by the provision on academic freedom which, as noted, is found in the Constitution. While reference therein is to institutions of higher learning, it was pointed out in Garcia v. The Faculty Admission, Committee 13 that academic freedom "is more often Identified with the right of a faculty member to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable to the powers that be, whether in the political, economic, or academic establishments. For the sociologist, Robert Maclver, it is 'a right claimed by the accredited educator, as teacher and as investigator, to interpret his findings and to communicate his conclusions without being subjected to any interference, molestation, or penalization because these conclusions are unacceptable to some constituted authority within or beyond the institution.'" 14 Tenure, according to him, is of the essence of such freedom. For him, without tenure that assures a faculty member "against dismissal or professional penalization on grounds other than

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professional incompetence or conduct that in the judgment of his colleagues renders him unfit" for membership in the faculty, the academic right becomes non-existent, 15 Security of tenure, for another scholar, Love joy, is "the chief practical requisite for academic freedom" of a university professor. 16 As with Maclver, he did not rule out removal but only "for some grave cause," Identified by him as "proved incompetence or moral delinquency." 17 3. The charge leveled against petitioner, that of making homosexual advances to certain individuals, if proved, did amount to a sufficient cause for removal. The crucial question therefore is whether it was shown that he was guilty of such immoral conduct. He is thus entitled to the protection of procedural due process. To paraphrase Webster, there must be a hearing before condemnation, with the investigation to proceed in an orderly manner, and judgment to be rendered only after such inquiry. As far back as 1915, the American Association of University Professors adopted the principle that "every university or college teacher should be entitled before dismissal or demotion, to have the charges against him stated in writing, in specific terms and to have a fair trial on these charges before a special or permanent judicial committee of the faculty or by the faculty at large. At such trial the teacher accused should have full opportunity to present evidence."18 Thus the phrase, academic due process, hag gained currency, Joughin referred to it as a system of procedure designed to yield the beat possible judgment when an adverse decision against a professor may be the consequence with stress on the clear, orderly, and fair way of reaching a conclusion. 19 4. The procedure followed in the first investigation of petitioner, conducted in June of 1974, did satisfy the procedural due process requisite. The same cannot be said of the November, 1974 inquiry when the petitioner had to face anew a similar charge of making homosexual advances. As admitted in the exhaustive comment of the Solicitor General: "On November 16, 1974, Montemayor, through counsel, moved for the postponement of the hearing set for November 18 and 19, 1974 but the same was rejected by the committee. The hearing proceeded as scheduled in the absence of Professor Montemayor and his counsel. In said hearing, Prof. Luis Almazan and Jaime Castaneda testified. On December 5, 1974, the Committee submitted its report finding the charges against Montemayor to have been sufficiently established and recommending to the President and the Board of Trustees of the Araneta University Foundation his separation from the University, in accordance with Sections 116 and 351 of the Manual of Policies of the University." 20 It does appear therefore that the members of such investigating committee failed to show full awareness of the demands of procedural due process. A motion by petitioner for postponement of the hearing, apparently the first one made, was denied. What is worse, in his absence the matter was heard with the committee losing no time in submitting its report finding the charges against petitioner to have been sufficiently established and recommending his removal. If that were all, respondent Secretary of Labor cannot be sustained. certiorari would lie. But such deficiency was remedied, as pointed out in the same comment of the Solicitor General, by the fact "that petitioner was able to present his case before the Labor Commission ." 21Then he continued: "Thus, the record discloses that at a mediation conference held on December 9, 1974, the parties appeared and, after all efforts at conciliation had failed, they agreed to submit their dispute for compulsory arbitration. Several hearings were conducted by Labor Arbiter Atty. Daniel Lucas, Jr., wherein petitioner submitted his evidence supported by his affidavit impugning the regularity of the proceedings before the investigating committees and assailing the legality of his removal. The entire record of the administrative proceedings, including the transcript of the stenographic notes taken therein, was elevated to the Labor Commission for review. Petitioner herein, thru counsel, moved for reinstatement during the pendency of the case. In another motion, he prayed for the consolidation and joint hearing of his complaint for unfair labor practice against herein private respondents (NLRC Case No. R-IV-1060-74) with that of the application for clearance filed by the University to terminate Montemayor's employment. On the other hand, the University moved to dismiss the complaint for unfair labor practice against its officials on the ground that they were not complainant's employers and that their participation in the administrative case against the latter was official in nature. Respondent University also presented the affidavit of Thomas P. G. Neill Dean of the Institute of Agricultural Business Administration and Chairman of the Committee created to investigate the charges of immorality against petitioner attesting to the regularity of the proceedings and the validity of the dismissal." 22 The legal aspect as to the procedural due process having been satisfied was then summarized by the Solicitor General thus: "All the foregoing clearly shows that petitioner was afforded his day in court. Finally, and more significant, is the fact that petitioner claims denial of due process in the proceeding had before the investigating committees and not in the proceedings before the NLRC wherein, as shown heretofore, he was given the fullest opportunity to present his case." 23

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5. The comment of the Solicitor General was submitted on January 4, 1977. The memorandum for petitioner was submitted on April 25. What immediately calls attention is that no attempt was made to refute specifically such recital of the Solicitor General, of decisive significance as far as the due process issue is concerned. Instead, the emphasis was on the alleged commission of an unfair labor practice by private respondent. Inasmuch as the Arbiter as well as the National Labor Relations Commission absolved private respondent from the charge of unfair labor practice, it would appear that the emphasis of counsel for petitioner was misplaced. Accordingly, there is nothing in the record that would militate against the contention of the Solicitor General that there was an observance of procedural due process. WHEREFORE, the petition for certiorari is dismissed No. costs. Barredo, Antonio, Aquino, and Martin, JJ., concur. Concepcion, Jr., J, is on leave. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13638-40 June 30, 1964

MANILA ELECTRIC COMPANY, petitioner, vs. PUBLIC SERVICE COMMISSION ETC., ET AL., respondents. Ross, Selph, Carrascoso and Janda and Pelaez and Jalandoni for petitioner. Ambrosio Padilla Law Office for respondent Dr. Pedro Gil. A. Castro Revilla for respondent Phil. Chamber of Commerce. Office of the Solicitor General for respondent Public Service Commission. Carlos, Laurea and Associates for other respondents. PAREDES, J.: On March 10, 1955, the Manila Electric Company (Meralco for short), filed two applications with the Public Service Commission (Commission for short), one, for revision and reduction of its rates for commercial and other non-residential customers for general lighting, heating and/or power purposes (P.S.C. Case No. 85889) and the other for revision and reduction of its residential meter rate, schedule RM-3 (P.S.C. Case No. 85890). These applications were approved by the Commission in a decision rendered on September 24, 1955. On August 24, 1955, the Meralco filed another application for revision and reduction of its general power rate, Schedule GP-2 (P.S.C. Case No. 89293), which was provisionally approved on August 31, 1955. Previous to these applications, Meralco filed seven (7) other applications for revision and reduction rates. On June 9, 1954, upon petition of Dr. Pedro Gil, the Commission requested the Auditor General to cause an audit and examination of Meralco's books of accounts. The General Auditing Office (GAO, for short) examined and audited the books and under date of May 11, 1956, it presented a report which was submitted to the Commission on May 28, 1956 (Annex D of petition). On May 30, 1956, the Commission, thru Commissioner Feliciano Ocampo, reset the hearing of case Nos. 85889, 85890 and 89893, for June 22, 1956 "for the purpose of considering such further revision of applicant's rates as may be found reasonable." On said date, the parties appeared and Atty. Venancio L. de Peralta, Technical Assistant and Chief of the Finance and Rate Division of the Commission, who was duly authorized to receive the evidence of the parties, announced that the hearing was an "informal hearing", and its purpose was to hear any remarks or statements of the parties and to define the issues "so that at the hearing we know exactly what are disputed at this informal hearing". Dr. Pedro Gil submitted the 3 cases on the report of the GAO dated May 11, 1956 and on a letter dated June 7, 1956 he sent to the Commission, in which he asked the Commission, inter alia,

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to allow the Meralco "a rate of return of only 8% on its invested capital" (Annex E, Petition). The Solicitor General submitted the case on the same report and letter of Dr. Gil and on a letter-report (4 pages) addressed by the Deputy Auditor General to the Commission on November 21, 1955. Other parties made common cause with Dr. Gil. Meralco was given by the Commission a period of 30 days within which to file an answer, specifying its objections to the report of the GAO. The following proceeding which took place on said "preliminary hearing" is revealing: Atty. Carrascoso: The case for petitioners is since they have submitted their evidence I ask now for (time for) presentation of respondent's evidence and due to its inability, I ask that the case be set on August 6. Solicitor-General Padilla: I want the Commissioner to rule first on that Point. We want the Manila Electric Company to define its stand. Atty. Carrascoso: Our stand is clear. We received the auditor's reports. The Auditor's reports have been presented in evidence upon which the Manila Electric Company cannot be required to answer in writing that report.The Manila Electric Company is going to refute that report by presenting their evidence. xxx Commission: I think all of us are interested in the early disposition of these cases. The Manila Electric Company itself is interested in the early disposition of this case. Now, I think it is well taken the Manila Electric Company to state what portions of the auditor's report it will object to, so that at the hearing we know exactly what (facts) are disputed. At any rate, the Manila Electric Company can present any and all relevant evidence to justify its rates, but the other parties in this case as well as the Commission would like to know exactly what it will dispute in this report because on the basis of this report the Commission can issue an order because the General Auditing Office is the arm of the Commission in fixing the rates of public utilities. So I think it is to the best interest of all parties in this case that the Manila Electric Company should specify the items in the audit report that it objects to before the hearing and we will give you 10 days to submit a memorandum specifying the portion of the audit report, specifying in a statement whatever you call the items in the report that you will object to so that at the bearing we will know then. Solicitor-General Padilla: And the oasis for controverting those portions of the report. Atty. Carrascoso: The basis will be presented in evidence. Solicitor-General Padilla: What is the purpose of Counsel Carrascoso in trying to cancel (conceal) the basis? Atty. Carrascoso: xxx xxx

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We are presenting (will present) evidence and I am trying to say again; every report by the petitioner's need not be answered in writing but as the Commission wants to facilitate we will do so. We will make a statement or a list of statements and we will submit that in one week. Commission: When you specify the item in the audit report to which you object there must be basis to it. (Transcript, pp. 35-38.) Atty. Carrascoso: Mr. Commissioner. As I say (see it) the Solicitor General is asking us to submit objections which is really in the nature of a memorandum or in the way of answer. I want to make it appear of record that only to facilitate the work of the Commission, I have said we will submit a summary and we will ask thatthat summary is not to be considered at all as answer because the Solicitor General, Dr. Gil and somebody else may contend that we may not present evidence beyond the motion given in that summary. You see Mr. Commissioner I don't want that to happen ... . (Transcript, pp. 42-43.) Commission: This is the way I gather. The Solicitor General wants in your so-called answer to specify the items in the audit report that you will object to and include any or all matters that you would like to show before the Commission to justify the rates. (Transcript, p. 45.) Commission: I will report this matter to the Commissioner, Judge Feliciano Ocampo. (After a brief recess, Mr. Peralta came back). Commission: I have reported this matter to the Commissioner, Judge Ocampo and he directed me to state this: The Manila Electric Company is directed to file its memorandum on the audit report of the General Auditing Office specifying the items it will object to and the reasons for its objection within 15 days from today and the General Auditing Office is also given a period of time of 15 days from the date they are furnished with a copy of the report to submit its reply memorandum and on the basis of this memoranda the Commission will make decision and if it finds that additional hearing will be conducted it will so order a hearing but from the basis of this memorandum it can resolve this case on the evidence which it believes necessary are already in. Atty. Carrascoso: I don't believe the case can be submitted on the basis of memoranda. The respondent is entitled to present its evidence. Aside from this I ask 30 days. Commission: The Commissioner says that the Manila Electric Company can be granted 30 days to file its memorandum. (Transcript, pp. 46-48.) On July 31, 1956, the Meralco filed its answer (Annex F) to the GAO's report, specifying its objection and stating:

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Meralco respectfully submits that it was, and it is the duty of the complainant, Dr. Pedro Gil, to present evidence in support of his claim that Meralco's rates are high and exorbitant, but he has never done it. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1wph1.t In so far as Meralco is concerned, the Company is disposed and ready to present evidence before this Commissioner as to what the present value of its property, plant and equipment is, for rate base purposes, upon the above cases being reset for hearing and reception of such evidence. and asked (a) that the above three numbered cases be reset for hearing to enable the parties to present their proofs. Meralco will present evidence in support of the allegations of this ANSWER. Dr. Gil filed his reply on August 23, 1956 (Annex G). The Solicitor General did the same on September 15, 1956 (Annex H), followed by a manifestation (Annex I) in which he asked that the rate of return of 12% allowed the Meralco on its invested capital be reduced to 8% as submitted by the GAO. Without having (1) first reset the said 3 cases for hearing; (2) Without having given the Meralco an opportunity, as requested by it, to cross-examine the officers of the GAO who prepared the report dated May 11, 1956, on which report the Commission based its decision; and (3) Without having given the Meralco an opportunity, as requested by it, to present evidence in support of its answer to refute the facts alleged in said report and controverted by Meralco, on December 27, 1957, the said Commission handed down a decision, the dispositive portion of which recite the following: IN VIEW OF THE FOREGOING, and finding that the reductions adverted to are just, reasonable and equitable among the various groups of customers, we are of the opinion that the petition for reduction of rates in these cases should be as it is hereby GRANTED. Accordingly, the Manila Electric Company is hereby required to reduce its present authorized rates effective January 1, 1958, by the following percentages on the bills of customers computed on the basis of the present authorized rates: "Residential and domestic customers "Commercial customers, including government agencies and street lighting (except the street lights for the City of Manila, the rates for which are fixed by contract) "Industrial customers, including nonassociated electric utilities ENTERED, Manila, December 27, 1957. (SGD.) ALEJANDRO A. GALANG Commissioner WE CONCUR: (SGD.) GABRIEL P. PRIETO Associate Commissioner 16%

8% 6%

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A. H. ASPILLERA (On sick leave) Associate Commissioner The motion for reconsideration and to set aside decision (Annex K), filed on January 14, 1958 by the Meralco, was denied by the Commission on a 2 to 1 vote, on March 3, 1958, Commissioner Galang and Prieto, voted for denial, while Commissioner Aspillera voted for granting. Hence, the present petition for review with preliminary injunction which was issued by this Court. Petitioner Manila Electric Company alleges in its brief that the Public Service Commission erred: I. In the rendering its decision without a previous hearing; without giving petitioner an opportunity to present evidence in support of its answer; and in basing its decision on the report of the General Auditing Office dated May 11, 1956, without having given petitioner an opportunity to refute the facts alleged in the said report of the General Auditing Office and controverted by petitioner. II. In holding that for rate base purposes, the appraised value as of petitioner's pre-war property, plant and equipment should be considered as the present fair value of said properties. III. In not considering certain properties as part of the property, plant and equipment in service of petitioner for rate base purposes. IV. In using the net average investment rate base, instead of the year-end rate base, for determining the value of petitioner's property, plant and equipment entitled to return. V. In sanctioning GAO's readjustment of the reserves for depreciation of petitioner's property, plant and equipment. VI. In disallowing legitimate operating expenses in the determination of petitioner's working capital. VII. In not taking into consideration the value of materials and supplies carried in stock in the determination of petitioner's rate base. VIII. In not giving effect to the contract between petitioner and the Philippine Power and Development Company. IX. In ordering petitioner to reduce its rates. X. In basing its decision on obsolete allegations of fact. XI. In denying petitioner's "Motion for Reconsideration and to Set Aside Decision". As must be observed, the assignment of errors is divided into two groups: one is the fundamental issue on due process of law and the other is the determination of the veracity or correctness of the alleged facts, upon which the respondent Commission based its findings and conclusions; and the legality, propriety and efficacy of the methods employed by the said Commission, in computing and finding the rates it tries to enforce. If, as claimed by the petitioner, the first assignment of error is true, then it would be an idle gesture on our part to delve further into the merits of the case, for then the petitioner in these 3 cases was not accorded due process of law. And we believe that petitioner was not afforded the constitutional right it is invoking.

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No less than a distinguished member of the PSC has expressed the conviction, in his concurring and dissenting opinion, that the petitioner was not given a proper hearing. Commissioner Aspillera's own findings and conclusions were substantially supported by the evidence of record. Commissioner Aspillera in the dissenting portion of his opinion, said: Was there a hearing? The record shows that no hearing was held. On June 22, 1956, parties appeared before "Attorney Vivencio L. Peralta, Technical Assistant, and Chief, Finance and Rate Division, Public Service Commission, who was duly authorized to receive the evidence of the parties", and the record shows that the hearing held before the said Commissioner was merely an informal hearing because, using his own words, "I said at the beginning that this is only preliminary because I want that the parties could come to some kind of understanding." (Transcript, p. 24.) And pages 3, 7 and 40 of the transcript, show the following: Commission: "Gentlemen. The Commission has called these three cases for today after it has received the audit report of the General Auditing Office. The Manila Electric Company and Dr. Pedro Gil have been furnished with copies of this audit report. "There are several observations made in this audit report of the General Auditing Office. The Commission is ready to hear from the different parties interested in the revision of the rates of the Manila Electric Co. and to receive any and all relevant evidence that may guide the Commission in the determination of the just and reasonable rates. There are many matters that are put in issue in the audit report of the General Auditing Office. For instance the rate base and the rate of return, among other matters that may be brought up during this hearing. So if there are any remarks or statements before we proceed to a real formal hearing we will be ready to hear them." Transcript, p. 3.) Commission: "May we hear from the representative of the Manila Electric Co. or from their counsel? This is only preliminary and if necessary to go to a formal hearing we will go to it." (Transcript, p. 7.) Commission: "In this audit report you will see the difference in the figures of the Manila Electric Company and the figures of the General Auditing Office. The General Auditing Office has disagreed with the book figures of the Manila Electric Company. So it is not difficult to identify the figures. You will have no difficulty as the General Auditing Office stated in the report those items not considered as part of the consideration in the determination of the rates. So it will be the turn of the General Auditing Office to state why those items should be considered. And before the hearing we would like to know that so that we will know what are the item." (Transcript, pp. 39-40.) and counsel for the Manila Electric Company, confirming the statements made by the Commissioner, said: Atty. Carrascoso Mr. Commissioner. What we are having today as you remark at the beginning is an informal hearing. This is not a formal hearing. I have already stated what we think of the submission of that report alone. I am not to make further statement. So I suggest that we set this case to a formal hearing. Let us proceed presenting evidence on what they want and present our evidence. (Transcript, pp. 21-22.)

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The second question is, "Was Manila Electric Company deprived of its property without due process of law?" "Was the company deprived of an opportunity to be heard to present evidence in support of its Answer?" Again I refer to the record of the cases, and the answer must be in the negative. I quote from the pages of the transcript of the stenographic notes hereinafter mentioned. Commission: Now, what is necessary is the final revision of the rates will be really the determination of a reasonable rate of return that will be allowed to the Manila Electric Company whether it is 12% or 8% or any other percentage and we will require evidence in order to arrive at a reasonable rate of return that will be allowed the Manila Electric Company. We cannot merely fix a rate at the mere whim of the Commission or mere wish of any party. There must be evidence on which the Commission must fix a reasonable rate of return.(Transcript, p. 8.) Commission: ... That is why we would like to know whether the parties interested in the case as well as the Manila Electric Company and the Solicitor General to submit to this Commission such evidence that will guide the Commission in determining the proper rate base and the proper rate of return. (Transcript, p. 19.) Commission: ... If there is evidence other than the report of the General Auditing Office that can be presented here the Commission will appreciate it. ... (Transcript, p. 30.) Atty. Carrascoso: We object. We have to object. We object and reiterate our objection to the admission of these reports.These reports alone without the men who prepared then taking the fitness stand subject himself to cross-examination by the respondent are not admissible in evidence. (Transcript, p. 31.) Atty. Carrascoso: We will not be required to present answer to the report. We are going to present evidence, but answer the report in writing there is no rule to present an answer to a report. We are going to present evidence but we are not going to present any written answer to the auditor's reports. (Transcript, p. 33.) Atty. Carrascoso: Certainly, Mr. Commissioner. After we have presented our evidence they can rebut. We object to each and every portion of the report except the Manila Electric Co. figures quoted in the report. After we finish presenting our evidence Dr. Gil and the other complainants can present their evidence. That is all. I am not talking on issues. I am talking on evidence the respondent will submit. We are objecting to the report as a whole. We will present evidence. The Solicitor General is confusing the issues and the report. (Transcript, p. 34.) Commission:

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... At any rate, the Manila Electric Company can present any and all relevant evidence to justify its rates but the other parties in this case as well as the Commission would like to know exactly what it will dispute in this report. ... (Transcript, p. 36.) Commission: ... The only difficult portion in the fixing of rates by the Commission on which to base the determination of the reasonableness of the rates is on the basis of the evidence it can gather in this case. (Transcript, p. 41.) The record further shows that after the "preliminary hearing" held on June 22, 1956, no other hearing was held; the cases were never set for hearing; and Meralco was not given an opportunity to present evidence to rebut the audit report or in support of its Answer, in which the company prayed, among other things: (a) that the above three numbered cases be reset for hearing to enable the parties to present their proofs. Meralco will present evidence in support of the allegations of this answer. I notice also that at the conclusion of the "preliminary hearing" held on June 22, 1956, the Commissioner authorized to receive the evidence of the parties advised them that after reporting to Public Service Commissioner Ocampo the discussion had and what had transpired at the said "preliminary hearing", Commissioner Ocampo directed him to tell the parties that they should submit memoranda and "that the case is considered submittedunless the Commission believes that a further hearing is necessary", but counsel for the Meralco objected to such procedure and said: Atty. Carrascoso: I don't believe the case can be submitted on the basis of the memoranda. The respondent is entitled to present its evidence. Aside from this I ask 30 days. (Transcript, pp. 47-48.) And Commissioner Aspillera concluded Considering the proceedings had, I am of the opinion that the decision of December 27, 1957 was not promulgated "upon proper notice and hearing", as required by law, and that therefore it can not serve as a legal basis for requiring the Meralco to put in effect the reductions ordered in the decision. But I believe there is a basis for ordering the Meralco to effect a reduction of rates although not to the extent fixed in the decision. From statements of Meralco's counsel during the hearing of the motion for reconsideration, it would appear that they assail certain items considered by the Commission in arriving at the conclusion that the Meralco made an excess profit of roughly four and a half million pesos. I gather from the statements made that because of erroneous allowances and disallowance made, this figure is incorrect by about two million pesos, that is, that the excess profit found should be reduced by two million. This, I believe, is an admission by the Meralco that it did make an excess profit of two and a half million pesos. By virtue of this admission I think that the Meralco can be ordered to reduce its rates on the basis of this excess profit of two and a half million pesos. In view of the foregoing considerations, the above cases never having been set for hearing after the "preliminary hearing" held on June 22, 1956, and Meralco not having been afforded the right to present evidence in support of its Answer, a right expressly granted to it by law, I am constrained to hold, as I hereby hold, that Meralco's motion for reconsideration and to set aside should be, as it is hereby, granted, the decision of December 27, 1956 entered in these cases set aside, and these cases set for hearing to receive such evidence as the Meralco may desire to present in support of its Answer. The Manila Electric Company, however, is ordered, effective April 1, 1958, to reduce its residential rates by 8-%, its commercial rates by 4-% and its industrial rates by 3-%.

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And judging from the allegations in the motion for reconsideration and some of the alleged errors assigned in the petitioner's brief, there is indeed need of presenting evidence in support thereof or at least to substantiate its answer. Laying aside the legal questions the resolution of which will be mainly predicated on facts proven, the Commission should determine the actual cost of petitioner's post war property, plant and equipment; what are the petitioner's properties, plant and equipment in service for rate base purposes; the year end rate base, for determining the value of petitioner's property, plant and equipment entitled to return; the basis of readjustments of the reserves for depreciation of petitioner's property, plant and equipment; what legitimate operating expenses should be disallowed in the determination of petitioner's working capital; the petitioner's working capital during the test year 1955; the value of materials and supplies carried in stock to be taken into consideration in the determination of petitioner's rate base; the basis for ordering the petitioner to reduce its rates, etc. As there is an allegation that the Commission based its decision on obsolete allegations of fact contained in the GAO report, the petitioner should have been given the opportunity to prove at least what these obsolete facts were or what were not. It should be recalled that the test year for the reduction of the rates was 1955 to be enforced on January 1, 1958. During that long span of time, in a fast moving and progressive business world, where prices are yearly going to the skies, it is really doubted whether the facts as found and existing in 1955 will not look obsolete in 1958. One can hardly decide what are the true facts, or facts nearing to the truth, on the controverted report of the GAO. The report can not be cross-examined or confronted. The persons who prepared the report could be crossexamined or confronted; but petitioner was not allowed to do so. In the motion for consideration dated January 17, 1958, (Annex B), petitioner specifically prayed that the decision of December 27, 1957 be reconsidered and set aside; that the cases be reset for hearing for the reception of all pertinent evidence; that the Meralco be granted a period of two months within which to submit a revised schedule of rates, affecting a reduction thereof, commensurate with existing conditions; and that, in any case, the effectivity of said decision be stayed, pending resolution of the motion for reconsideration, or during appeal in the remote event that the motion will be denied. It was alleged therein that: The decision was null and void having been rendered without any hearing; the Commission could not validly make findings of fact without affording petitioner the right to cross-examine and confront witnesses, as well as the right to present its evidence; the decision contained findings contrary to law and at any event, the decision was based on obsolete allegations of fact, and since the submission of the audit report of the GAO, on whose allegations the decision was predicated, there had occurred recent developments which had substantially altered the situation of the Meralco and which have to be taken into account by the Commission, in fixing just and reasonable rates, such as (1) Government restrictions and changing policies (2) higher rate base (3) higher cost of production and other changes. These grounds were and still vital to the issues in the case, even if taken only on their face value. They should have merited the attention of the Commission. But two of the Commissioners denied the motion stating, among other things, "The desire of the Meralco to cross-examine witnesses and present oral testimonies may just lead to more years of protracted and delayed hearings, which will undoubtedly affect adversely the public interest. Hence, the procedure followed by the Commission in deciding these cases was the usual practice long adopted by the Commission in fixing rates of electric power plants". If the practice of the Commission alluded to is what is revealed in the record of this case, then it is not a good practice, nay, it is unlawful, because it breaches the guarantees of due process. There should be no short cuts in the disposition of the time-honored principle that no one should be deprived of his life, liberty and property, without due process of law. Considering the fact that the reduction of rates herein sought might involve huge amounts of money and the errors, alleged to have been committed, if true, would affect likewise not only the right of the petitioner but also public interest, it would have been a better part of valor and wisdom to have delayed a little bit the final resolution of the controversy. And moreover, when the Commission finally decided the cases, making its decision effective as of 1958, indeed many great changes (as enumerated in the petitioner's brief), had already taken place. From 1955 the test year to 1958, plenty of water had already rolled under the bridge. Respondents advanced the theory that proceedings in the Public Service Commission are administrative, not judicial, that administrative agencies have three functions adjudication, rule-making and enforcement; that in legislative or rule-making function there is no constitutional right to any hearing whatsoever; that rate fixing is a legislative function; that the requirement of "proper notice and hearing" provided by section 16, par. (c) of the Public Service Act had been complied with, not in "auditory hearing", but in the "canned method" or the submitted of prepared forms issued by the agency, or the submission of pleadings, briefs, and memorandums or even by mere inspection; that the Commission is not bound by strict rules of evidence and it can make use of its own independent surveys of the situation to acquire an

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understanding of the problem before it; that petitioner was notified by the Commission of the time and place of hearing and also of the subject matter that following the so-called "preliminary hearing", the hearing officer announced "Now we are really proceeding to the hearing itself" and petitioner was granted 30 days to file a memorandum which it submitted, captioned "Answer" consisting of 120 pages, wherein it expounded in detail, with exhaustive citations of authorities and jurisprudence, on the theories and practices followed in the United States in the determination of just and reasonable rates, which answer drew a sharp reply from respondents, after which the Commission declared there was sufficient basis or evidence before it to enable it to decide the cases without the necessity of resetting them for hearing, for the reception of additional evidence; that the petitioner's objections to the GAO report are essentially legal and not factual in nature and deals merely with the application of rate-making and accounting principles; that the report of the GAO dated May 11, 1956 is admissible in evidence and the auditors who prepared it were not asked by petitioner to be cross-examined, as in fact, according to respondents, there was not even need of presenting them in evidence, as said reports formed part of the official records of the Commission (citing certain cases and CA No. 325); that no amount of oral testimonies could have changed the figures and matters appearing in the report of the GAO and the answer of the petitioner and their respective contentions; and that it is only when the Commission exercises its judicial functions that "proper notice and hearing" is required (Sec. 16, Public Service Act), but not when it exercises its legislative functions (Sec. 17, same Act). We have gone over the merits and demerits of the essays and beautiful theories advanced by the respondents, as stated above, but the cold fact remains, after a panoramic perusal of the record and circumstances surrounding these cases, that the petitioner had not been given its day in court. We need not be reminded that it is the cardinal right of a party in trials and administrative proceedings to be heard, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof and to have such evidence presented considered by the tribunal (Comm. of Immigration vs. Fernandez, et al., L-22696, May 29, 1964 and cases cited therein). "Even if the Commission is not bound by the rules of judicial proceedings, it must how its head to the constitutional mandate that no person shall be deprived of right without due process of law", which binds not only the government of the Republic, but also each and everyone of its branches, agencies, etc. "Due process of law guarantees notice and opportunities to be heard to persons who would be affected by the order or act contemplated" (Halili v. Public Service Com., et al., 49 O.G. 825, citing 16 C.J.S. 1141, 1149). In view of the findings and conclusions reached, We deem it unnecessary to delve into the other issues raised by the parties. WHEREFORE, We set aside the decision of the respondent Public Service Commission of December 27, 1957 and the order of March 3, 1958, and remand the records of the above entitled cases to the Commission for further proceedings, and to render judgment accordingly. No costs. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Regala and Makalintal, JJ., concur. Barrera and Dizon, JJ., took no part. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-56180 October 16, 1986 ATENEO DE MANILA UNIVERSITY, petitioner, vs. COURT OF APPEALS, and SPOUSES ROMEO G. GUANZON and TERESITA REGALADO, respondents.

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Ernesto P. Pangalangan for petitioner. Mirano, Mirano & Associates for private respondents.

GUTIERREZ, JR., J.: In a letter-complaint dated December 13, 1967 addressed to Rev. William Welsh S.J., Dean of Men, Dean of Resident Students, and Chairman of the Board of Discipline, College of Arts and Sciences, Ateneo de Manila, Carmelita Mateo, a waitress in the cafeteria of Cervini Hall inside the university campus charged Juan Ramon Guanzon, son of private respondents Romeo Guanzon and Teresita Regalado, and a boarder and first year student of the university with unbecoming conduct committed on December 12, 1967 at about 5:15 in the evening at the Cervini Hall's cafeteria, as follows: xxx xxx xxx Mr. Guanzon, a boarder at Cervini who I think comes from Bacolod, was asking for "siopao." I was at the counter and I told him that the "siopao" had still to be heated and asked him to wait for a while. Then Mr. Guanzon started mumbling bad words directed to me, in the hearing presence of other boarders. I asked him to stop cursing, and he told me that was none of my business. Since he seemed impatient, I was going to give back his money without any contempt. (sic) He retorted that he did not like to accept the money. He got madder and started to curse again. Then he threatened to strike me with his fist. I tried to avoid this. But then he actually struck me in my left temple. Before he could strike again, his fellow boarders held him and Dr. Bella and Leyes coaxed him to stop; I got hold of a bottle so I could dodge him. It was then that Fr. Campbell arrived. The incident was hidden from Fr. Campbell by the boarders. I could not tell him myself as I had gone into the kitchen crying because I was hurt. The university conducted an investigation of the slapping incident. On the basis of the investigation results, Juan Ramon was dismissed from the university. The dismissal of Juan Ramon triggered off the filing of a complaint for damages by his parents against the university in the then Court of First Instance of Negros Occidental at Bacolod City. The complaint states that Juan Ramon was expelled from school without giving him a fair trial in violation of his right to due process and that they are prominent and well known residents of Bacolod City, with the unceremonious expulsion of their son causing them actual, moral, and exemplary damages as well as attorney's fees. In its answer, the university denied the material allegations of the complaint and justified the dismissal of Juan Ramon on the ground that his unbecoming behavior is contrary to good morals, proper decorum, and civility, that such behavior subjected him as a student to the university's disciplinary regulations' action and sanction and that the university has the sole prerogative and authority at any time to drop from the school a student found to be undesirable in order to preserve and maintain its integrity and discipline so indispensable for its existence as an institution of learning. After due trial, the lower court found for the Guanzons and ordered the university to pay them P92.00 as actual damages; P50,000.00 as moral damages; P5,000.00 as attorney's fees and to pay the costs of the suit. Upon appeal to the Court of Appeals by the university, the trial court's decision was initially reversed and set aside. The complaint was dismissed. However, upon motion for reconsideration filed by the Guanzons, the appellate court reversed its decision and set it aside through a special division of five. In the resolution issued by the appellate court, the lower court's decision was reinstated. The motion for reconsideration had to be referred to a special division of

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five in view of the failure to reach unanimity on the resolution of the motion, the vote of the regular division having become 2 to 1. The petitioner now asks us to review and reverse the resolution of the division of five on the following grounds: ONE THE RESOLUTION OF THE DIVISION OF FIVE COMMITTED A SERIOUS AND GRAVE ERROR OF LAW IN RULING THAT PRIVATE RESPONDENTS WERE NOT AFFORDED DUE PROCESS IN THE DISCIPLINE CASE AGAINST THEIR SON, JUAN RAMON GUANZON. TWO THE RESOLUTION OF THE DIVISION OF FIVE ERRONEOUSLY RULED THAT THE RESORT TO JUDICIAL REMEDY BY PRIVATE RESPONDENTS DID NOT VIOLATE THE RULE ON FINALITY OF ADMINISTRATION ACTION OR EXHAUSTION OF ADMINISTRATIVE REMEDIES. THREE THE FINDING AND CONCLUSIONS OF THE RESOLUTION OF THE DIVISION OF FIVE ARE TAINTED WITH GRAVE ABUSE OF DISCRETION, OR ARE CONFLICTING, OR CONTRARY TO THE EVIDENCE IN THE CASE. In reversing its own decision, the appellate court relied heavily on the findings of the Director of Private Schools affirmed by the Minister of Education and the findings of the lower Court to the effect that due process of law was not observed by the petitioner when it dismissed the private respondents' son Juan Ramon. The resolution invoked the rule that findings of facts by administrative officers in matters falling within their competence will not generally be reviewed by the courts, as well as the principle that findings of facts of the trial court are entitled to great weight and should not be disturbed on appeal. The conclusions of the Court of Appeals in its split decision are not sustained by the facts on record. The statement regarding the finality given to factual findings of trial courts and administrative tribunals is correct if treated as a general principle. The general principle, however, is subject to well established exceptions. We disregard the factual findings of trial courts when-(l) the conclusion is a finding grounded on speculations, surmises, and conjectures; (2) the inferences made are manifestly mistaken, absurd, or impossible; (3) there is a grave abuse of discretion; (4) there is a misapprehension of facts; and (5) the court, in arriving at its findings, went beyond the issues of the case and the same are contrary to the admissions of the parties or the evidence presented. (Gomez v. Intermediate Appellate Court, 135 SCRA 620; Republic v. Court of Appeals, 132 SCRA 514; Carolina Industries, Inc. v. CMS Stock Brokerage, Inc., 97 SCRA 734; and Bacayo v. Genato, 135 SCRA 668). A similar rule applies to administrative agencies. By reason of their special knowledge and expertise gained from the handling of specific matters falling under their respective jurisdictions, we ordinarily accord respect if not finality to factual findings of administrative tribunals. However, there are exceptions to this rule and judicial power asserts itself whenever the factual findings are not supported by evidence; where the findings are vitiated by fraud, imposition, or collusion; where the procedure which led to the factual findings is irregular; when palpable errors are committed; or when a grave abuse of discretion, arbitrariness, or capriciousness is manifest.

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(International Hardwood and Veneer Co., of the Philippines v. Leogardo, 117 SCRA 967; Baguio Country Club Corporation v. National Labor Relations Commission, 118 SCRA 557; Sichangco v. Commissioner of Immigration, 94 SCRA 61; and Eusebio v. Sociedad Agricola de Balarin, 16 SCRA 569). The Court of Appeals ruled that Juan Ramon Guanzon was not accorded due process. We fail to see what, in the records, made the respondent court reverse its earlier and correct finding that there was due process. The original decision, penned by then Associate and now Presiding Justice Emilio A. Gancayco reviews the facts on record to show that the procedures in the expulsion case were fair, open, exhaustive, and adequate. The decision states: First, after the slapping incident which happened on December 12, 1967, Fr. Welsh in his capacity as Chairman of the Board of Discipline upon receipt of the letter-complaint (Exh. 2) of Carmelita Mateo conducted a preliminary inquiry by interviewing the companions and friends of Juan Ramon Guanzon who were also at the cafeteria. They confirmed the incident in question. (Exhs. 5, 6, 7 and 9). Second, Fr. Welsh, finding that there was probable cause against Mr. Guanzon, prepared a memorandum to the members of the Board of Discipline dated December 16, 1967 (Exh. 8) and delivered a copy each to Fr. Francisco Perez, Dr. Amada Capawan, Mr. Piccio and Dr. Reyes. Third, on December 14, 1967, Mr. Guanzon was fully informed of the accusation against him when Fr. Welsh read the letter-complaint of Carmelita Mateo and he admitted the truth of the charge. (tsn., pp. 38-39, May 9, 1970; Exh. 4). Fourth, Fr. Welsh also sent separate letters to Rev. Antonio Cuna, Student Counselor of the College of Arts and Sciences dated December 18, 1967 and Rev. James Culligan, Director of Guidance of the College of Arts and Sciences dated December 18, 1967 seeking any information for guidance in the action of the Board of Discipline regarding the case of Mr. Guanzon. (Exhs. 10-11) Fifth, notice of the meeting of the Board of Discipline set on December 19, 1967 was posted at the Bulletin Board of the College of Arts and Sciences and also at Dormitory Halls (tsn., pp. 21-22, July 21, 1970) The Secretary of the Dean of Discipline personally notified Mr. Guanzon of the meeting of the Board on December 19, 1967, he was told to seek the help of his guardians, parents and friends including the student counsellors in the residence halls and College of Arts and Sciences. (tsn., p. 18, July 21, 1970) Sixth, despite notice of the Board of Discipline on December 19, 1967, Mr. Guanzon did not care to inform his parents or guardian knowing fully well the seriousness of the offense he had committed and instead he spoke for himself and admitted to have slapped Carmelita Mateo. He then asked that he be excused as he wanted to catch the boat for Bacolod City for the Christmas vacation. Seventh, the decision of the Board of Discipline was unanimous in dropping from the rolls of students Mr. Guanzon (Exh. 12) which was elevated to the office of the Dean of Arts and Sciences, Rev. Joseph A. Galdon, who after a review of the case found no ground to reverse the decision of the Board of Discipline. (Exh. 13) The case was finally elevated to the President of the Ateneo University who sustained the decision of the Board of Discipline (Exh. 21-A, p. 6) A motion for reconsideration was filed by the President of the Student Council in behalf of Mr. Guanzon (Exh. 15) but the same was denied by the President of the University.

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Eighth, when the decision of the Board of Discipline was about to be carried out, Mr. Guanzon voluntarily applied for honorable dismissal. He went around to the officials of the university to obtain his clearance and this was approved on January 8, 1968. (Exh. 3, tsn., p. 58, May 6, 1970) Ninth, Mr. Romeo Guanzon, father of Juan Ramon Guanzon arranged for full and complete refund of his tuition fee for the entire second semester of the school year 1967-68. Juan Ramon was never out of school. He was admitted at the De la Salle College of Bacolod City and later transferred to another Jesuit School. From the above proceedings that transpired it can not be said that Juan Ramon Guanzon was denied due proems of law. On the contrary, we find that he was given the full opportunity to be heard to be fully informed of the charge against him and to be confronted of the witnesses face to face. And since he chose to remain silent and did not bother to inform his parents or guardian about the disciplinary action taken against him by the defendant university, neither he nor his parents should find reason to complain. xxx xxx xxx When the letter-complaint was read to Juan Ramon, he admitted the altercation with the waitress and his slapping her on the face. Rev. Welsh did not stop with the admission. He interviewed Eric Tagle, Danny Go, Roberto Beriber, and Jose Reyes, friends of Juan Ramon who were present during the incident. The Board of Discipline was made up of distinguished members of the faculty-Fr. Francisco Perez, Biology Department Chairman; Dr. Amando Capawan, a Chemistry professor; Assistant Dean Piccio of the College; and Dr. Reyes of the same College. There is nothing in the records to cast any doubt on their competence and impartiality insofar as this disciplinary investigation is concerned. Juan Ramon himself appeared before the Board of Discipline. He admitted the slapping incident, then begged to be excused so he could catch the boat for Bacolod City. Juan Ramon, therefore, was given notice of the proceedings; he actually appeared to present his side; the investigating board acted fairly and objectively; and all requisites of administrative due process were met. We do not share the appellate court's view that there was no due process because the private respondents, the parents of Juan Ramon were not given any notice of the proceedings. Juan Ramon, who at the time was 18 years of age, was already a college student, intelligent and mature enough to know his responsibilities. In fact, in the interview with Rev. Welsh, he even asked if he would be expelled because of the incident. He was fully cognizant of the gravity of the offense he committed. When informed about the December 19, 1967 meeting of the Board of Discipline, he was asked to seek advice and assistance from his guardian and/or parents. In the natural course of things, Juan Ramon is assumed to have reported this serious matter to his parents. The fact that he chose to remain silent and did not inform them about his case, not even when he went home to Bacolod City for his Christmas vacation, was not the fault of the petitioner university. Moreover, notwithstanding the non-participation of the private respondents, the university, as stated earlier, undertook a fair and objective investigation of the slapping incident. Due process in administrative proceedings also requires consideration of the evidence presented and the existence of evidence to support the decision (Halili v. Court of Industrial Relations, 136 SCRA 112). While it may be true that Carmelita Mateo was not entirely blameless for what happened to her because she also shouted at Juan Ramon and tried to hit him with a cardboard box top, this did not justify Juan Ramon's slapping her in the face. The evidence clearly shows that the altercation started with Juan Ramon's utterance of the offensive language "bilat ni bay," an Ilongo phrase which means sex organ of a

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woman. It was but normal on the part of Mateo to react to the nasty remark. Moreover, Roberto Beriber, a friend of Juan Ramon who was present during the incident told Rev. Welsh during the investigation of the case that Juan Ramon made threatening gestures at Mateo prompting her to pick up a cardboard box top which she threw at Juan Ramon. The incident was in public thus adding to the humiliation of Carmelita Mateo. There was "unbecoming conduct" and pursuant to the Rules of Discipline and Code of Ethics of the university, specifically under the 1967-1969 Catalog containing the rules and academic regulations (Exhibit 19), this offense constituted a ground for dismissal from the college. The action of the petitioner is sanctioned by law. Section 107 of the Manual of Regulations for Private Schools recognizes violation of disciplinary regulations as valid ground for refusing re-enrollment of a student (Tangonan v. Pano, 137 SCRA 245). Before Juan Ramon was admitted to enroll, he received (1) the College of Arts and Sciences Handbook containing the general regulations of the school and the 1967-1969 catalog of the College of Arts and Sciences containing the disciplinary rules and academic regulations and (2) a copy of the Rules and Regulations of the Cervini-Elizo Halls of the petitioner university one of the provisions of which is as follows: under the title "Dining Room"-"The kitchen help and server should always be treated with civility." Miss Mateo was employed as a waitress and precisely because of her service to boarders, not to mention her sex, she deserved more respect and gracious treatment. The petitioner is correct in stating that there was a serious error of law in the appellate court's ruling on due process. The petitioner raises the issue of "exhaustion of administrative remedies" in view of its pending appeal from the decision of the Ministry of Education to the President of the Philippines. It argues that the private respondents' complaint for recovery of damages filed in the lower court was premature. The issue raised in court was whether or not the private respondents can recover damages as a result of the dismissal of their son from the petitioner university. This is a purely legal question and nothing of an administrative nature is to or can be done. (Gonzales v. Hechanova, 9 SCRA 230; Tapales v. University of the Philippines, 7 SCRA 553; Limoico v. Board of Administrators, (PVA), 133 SCRA 43; Malabanan v. Ramonte, 129 SCRA 359). The case was brought pursuant to the law on damages provided in the Civil Code. The jurisdiction to try the case belongs to the civil courts. There was no need to await action from Malacaang. This brings us to the final issue which is whether or not the private respondents are entitled to damages. There is no basis for the recovery of damages. Juan Ramon was afforded due process of law. The penalty is based on reasonable rules and regulations applicable to all students guilty of the same offense. He never was out of school. Before the decision could be implemented, Juan Ramon asked for an honorable dismissal which was granted. He then enrolled at the De la Salle University of Bacolod City and later transferred to another Jesuit school Moreover, his full and complete tuition fees for the second semester were refunded through the representation of Mr. Romeo Guanzon, Juan Ramon's father. It is unfortunate of the parents suffered some embarrassment because of the incident. However, their predicament arose from the misconduct of their own son who, in the exuberance of youth and unfortunate loss of self control, did something which he must have, later, regretted. There was no bad faith on the part of the university. In fact, the college authorities deferred any undue action until a definitive decision had been rendered. The whole procedure of the disciplinary process was set up to protect the privacy of the student involved. There is absolutely no indication ot malice,. fraud, and improper or willful motives or conduct on the part of the Ateneo de Manila University in this case. WHEREFORE, the instant petition is hereby GRANTED. The appellate court's resolution dated January 26, 1981 is REVERSED and SET ASIDE. The appellate court's decision dated March 15, 1979 is REINSTATED. SO ORDERED.

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Feria (Chairman), Fernan, Paras and Feliciano, JJ., concur. Alampay, J., took no part. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 76353 May 2, 1988 SOPHIA ALCUAZ, MA. CECILIA ALINDAYU BERNADETTE ANG, IRNA ANONAS, MA, REMEDIOS BALTAZAR, CORAZON BUNDOC JOHN CARMONA, ANNA SHIELA DIOSO, RAFAEL ENCARNACION, ET AL., petitioners, vs. PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, Quezon City Branch (PSBA), DR. JUAN D. LIM, in his capacity as President and Chairman of Board of Trustees of PSBA, ATTY. P. PAULINO, etc., et al.,respondents. Rosalinda L. Santos for petitioners. Balgos & Perez Law Office for respondents. Merly Basco-Olano for Intervenor Union. Camilo Flores for Intervenor

PARAS, J.: This is a petition for review on certiorari and prohibition with motion for preliminary mandatory injunction seeking to nullify the action taken by herein respondent Philippine School of Business Administration, Quezon City Branch, in violation of petitioners' constitutional rights. The factual background of this case is as follows: Petitioners are all bonafide students of the Philippine School of Business Administration, Quezon City, while respondents, are the Philippine School of Business Administration (hereinafter referred to as PSBA) Quezon City Branch, a 'non-stock institution of higher learning organized and existing under the laws of the Philippines, Juan D. Lim, President and Chairman of the Board of PSBA; Benjamin P. Paulino, Vice President for Admission and Registration of PSBA, Q.C.; Ruben Estrella, Officer-in-Charge; and Ramon Agapay, Director of the Office of Student Affairs of PSBA, Q.C. and Romeo Rafer, Chief Security of PSBA, Q.C. As early as March 22, 1986, the students of the respondent school and the respondent PSBA, Q.C. had already agreed on certain matters which would govern their activities within the school (Rollo, p. 75). Among the agreements reached at that time were: On The exercise of student's democratic rights, it has been agreed that protest actions can be conducted any day as long as they meet the following requirements: a) that they be held at the PSBA quadrangle from 12:30 p.m. to 1:00 p.m. only;

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b) that the protest action be removed to the PSBA parking lot if it will exceed the 1:00 time limit; c) that if the protest move exceeds 1:00 it will be limited only up to 2:30 p.m. d) However, before any action is taken the organizers of the protest action should secure a permit 6 days before, or if on the same day, it still be under the "first-come-first-serve served" basis in the use of facilities, volume of sound system shall be adjusted so as not to disturb classes. It is the firm stand of the administration of PSBA that it will not allow the students to directly participate in the policy-making body of the school, as this is provided by law. However, the administration will be open to suggestions and questions, especially those regarding tuition fee increases and other policies that directly affect us. In spite of the above-stated agreement, petitioners felt the need to hold dialogues. Among others they demanded the negotiation of a new agreement, which demand was turned down by the school, resulting in mass assemblies and barricades of school entrances (Rollo. p. 20; 347-348). "Subsequently dialogues proved futile." Finally, petitioners received uniform letters from respondents dated October 8, 1986 (Rollo, p. 23) giving them 3 days to explain why the school should not take / mete out any administrative sanction on their direct participation and/or conspiring with others in the commission of tumultuous and anarchic acts on Thursday (Oct. 2), Friday (Oct. 3) and Tuesday (Oct. 7).<re||an1w> The aforestated letter was answered by the counsel for the students in a reply letter dated October 22, 1982 Annex "E" (Rollo, P. 26). During the regular enrollment period, petitioners and other students similarly situated were allegedly blacklisted and denied admission for the second semester of school year 1986-1987. On October 28,1986 the President of the Student Council filed a complaint with the Director of the MECS against the PSBA for barring the enrollment of the Student Council Officers and student leaders. (Annex "F" Rollo, p. 30). Simultaneously on the same date, the student council wrote the President, Board of Trustees, requesting for a written statement of the school's decision regarding their enrollment (Rollo, p. 31). Another demand letter was made by Counsel for the students Atty. Alan Romulo Yap, also to the President, Board of Trustees, to enroll his clients within forty-eight (48) hours (Rollo. p. 33). All these notwithstanding, no relief appeared to be forthcoming, hence this petition. In the resolution of November 7,1986, the Second Division of this Court without giving due course to the petition required respondents to comment thereon and set the hearing for preliminary mandatory injunction on November 10, 1986 (Rollo, p. 35). In compliance therewith on November 9, 1986, respondents filed their comment and opposition to the application for the issuance of a writ of preliminary mandatory injunction praying that the petition for the issuance of a writ be denied not only for lack of merit but also for being barred by res judicata (Rollo, p. 67). Meanwhile, a motion for intervention was filed on November 10, 1986, by the Philippine School of Business Administration, Quezon City Faculty Union, (PSBA, QC-FU for brevity) representing the faculty members hereinafter referred to as intervenors, on the ground of commonality of issues and cause of action with that of the petitioners (Rollo, p. 36). At the hearing on the petition for preliminary mandatory injunction, where counsel for all the parties appeared and argued their causes, the Court Resolved to grant the motion for intervention and to require the intervenors to comment on the petition and the petitioners to file a reply thereto (Rollo, p. 66, copy corrected, p. 167). On the same day respondents filed their comment and opposition to the application for the issuance of a writ of preliminary mandatory injunction (Rollo, pp. 67-74). On November 12, 1986, this Court resolved to issue a temporary mandatory order directing the respondents herein (a) to re-enroll the petitioners herein and (b) to re-admit the intervenors to their former

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positions without prejudice to the investigation to be conducted by the school authorities (Rollo, p. 141). Said Order was issued on November 14, 1986 (Rollo, pp. 142-143). A supplemental comment and opposition to application for a writ of preliminary mandatory injunction dated November 11, 1986 was filed by herein respondents (Rollo, p. 150), while an urgent motion to reiterate prayer for issuance of preliminary mandatory injunction dated November 13, 1986 was filed by herein petitioners (Rollo, pp. 162-163). Instead of complying with tile resolution of November 12, 1986 an urgent motion for reconsideration was filed by herein respondents on November 15, 1987 (Rollo, p. 194) praying that this Court reconsider the aforesaid resolution. On November 18, 1986 petitioners and intervenors filed a joint urgent motin to cite respondents in contempt (Rollo, p. 199), while respondents filed a supplemental motion for reconsideration, also on the same date (Rollo, p. 205). In the resolution of November 19,1986, respondents' motion for reconsideration and sumplemental motion for reconsideration were denied for lack of merit, and the denial was dedlared FINAL. The urgent motion of counsel for petitioners and intervanorts to cite respondents in contempt of court was NOTED (Rollo, p. 225). An urgent motion for intervention and answer in intervention was filed by Nelia M. Lat, Annalisa T. Geronimo, Leonora Q. Bueniraje, Maria L. Araas, Eduerijes Llanto, Charita, R. Chong, Marilou Garcia, Amelita R. Sia, Loida O. Ladines, Dominic P. Santos, Noly R. Chong, and Arthur R. Cacdac for themselves and on behalf of other students of the PSBA, Quezon City, who are similarly situated, to allolw them to intervene as respondents dated November 11, 1986 (Rollo, p. 227) which was granted by this Court in a resoulution dated December 3, 1986 (Rollo, p. 240) On November 20, 1986, the respondents filed their compliance with the temporary mandatory order; Issued by this Court pursuant to its resolution dated November 12, 1987 (Rollo, p. 237). On November 29, 1986, respondents filed their comment on the motion for intervention of the PSBA Quezon City Faculty Union (Rollo, p. 252). A consolidated reply to respondents' supplemental comment and opposition to application for a writ of preliminary mandatory injunction, urgent motion for reconsideration and supplemental motion for reconsideration was filed by herein in intervenors on December 2,1986 (Rollo. p. 242). In the resolution of January 21, 1987, the petition was given due course and parties parties were required to file their respective memoranda (Rollo, p. 266). Accordingly, respondents filed their memorandum on February 23, 1987, (Rollo, p. 269) while the intervenor Union filed its memorandum on March 13, 1987 (Rollo, p. 296). Respondents filed their reply memorandum on April 13, 1987 praying that the intervention of the intervening teachers be dismissed (Rollo, p. 328). Respondents filed their manifestation and motion dated April 27, 1987 stating that pursuant to this court's order dated November 12, 1986, the school authorities created a special investigating committee to conduct an investigation, which submitted a report with recommendations (Rollo, p. 335), the report reading as follows: After due deliberation, the Committee hereby submits the following recommendation: STUDENT-RESPONDENTS A. RENATO PALMA, BERNADETTE ANG, ROGELIO TAGANAS are hereby recommended to be EXONERATED of all charges.

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B. SOPHIA ALCUAZ (up to No. 19) are hereby recommended to be HONORABLY DISMISSED from PSBA Q.C. roll of students without prejudice to reenrollment on a case to case basis if found suitable and justified. FACULTY-RESPONDENTS A. To be EXONERATED of all charges JOSE C. ANTONIO, DONALLY BRINGAS, DANTE CAJUCOM, LEO LOQUELLANO SOLITA A. CRUZ, and N TOLENTINO. B. To be reprimanded with a WARNING that a repetition of similar acts in the future will be dealt with more severely FLORANTE BAGSIC and ATENOGENES BONDOC. C. MR. SEVERINO CORTES, JR. is hereby recommended for non-renewal of his semester to semester appointment. D. MESSRS. ASSER (BONG) TAMAYO and RENE Q. ENCARNACION are hereby recommended for termination of their services as faculty members. Respondents adopted the aforestated recommendations of the Committee and prayed that the case be dismissed for having become moot (Rollo, p. 341). On April 30, a second urgent manifestation and motion was filed by respondent praying that the recommendation of special Committee as implemented by its President be made effective by the discontinuance of the summer enrollment of petitioners Anna Shiela A. Dinoso, Zeny Gudito and Ma. Shalina Pitoy upon the refund to them of all the fees they have paid to the school (Rollo, p. 397). An urgent motion to cite for contempt herein respondents was filed on May 5, 1987 for violating this court's temporary mandatory order on November 12, 1986, by discharging and striking off from the roll of students petitioners Dinoso, Gudito and Pitoy (Rollo, p. 400) while an opposition to urgent motion to cite for contempt was filed by herein respoddents on May 20, 1987 (Rollo, p. 413). On May 20, 1987, Intervenor Union filed their Intervenor's Comment on Respondents' reply memorandum and manifestation and motion with motion to cite respondent in contempt (Rollo, p. 417). On June 8, 1987, petitioners filed their very urgent motion for an order to re-enroll (Rollo, p. 620) followed by an urgent supplemental motion and Reply to opposition dated June 9, 1987 (Rollo, p. 623). Later on, an Opposition to "very urgent motion for order to re-enroll was filed by herein respondents on June 11, 1987 (Rollo, p. 625) while on June 15,1987, herein intervenor Union filed its manifestation and motion with urgent motion reiterating intervenor's motion to cite respondents in contempt (Rollo, p. 629). On June 16,1987 respondents filed their opposition to urgent motion to oppose petitioners' urgent motion dated June 9, 1987 (Rollo, p. 795)'. Petitioners filed their memorandum on June 17, 1987 (Rollo, p. 799). On June 18, 1987, respondents filed their counter-comment and opposition to motion to cite respondents in contempt (Rollo, p. 815). Subsequently, on June 25,1987, respondents filed their Reply Memorandum on the petitioners' memorandum (Rollo, p. 820.). In the resolution of June 29, 1 987 the motion of petitioners to compel respondents to readmit or re-enroll herein petitioners was denied except in the case of three (3) student petitioners cleared by the investigating committee and who had been recommended to be readmitted or re-enrolled. This court further stated that the reason for the non-enrollment of the others is that the results of the investigation conducted indicate prima facie the violation by the majority of the petitioners of the rules and regulations of respondent school (Rollo, p. 793). The Court further resolved to require respondent school to show cause why it should not be adjudged in contempt for refusing to reinstate the intervenors-faculty members in the interim.

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Respondents filed the manifestation on July 3, 1987 informing this Court that they did not refuse to reinstate the intervenors/faculty members; that they were in fact actually reinstated in compliance with the Court's temporary mandatory order (Rollo, p. 829). Hence, the motion for contempt should be dismissed. The pivotal issue of this case is whether or not there has been deprivation of due process for petitionersstudents who have been barred from re-enrollment and for intervenors teachers whose services have been terminated as faculty members, on account of their participation in the demonstration or protest charged by respondents as "anarchic" rallies, and a violation of their constitutional rights of expression and assembly. Petitioners allege that they have been deprived of procedural due process which requires that there be due notice and hear hearing and of substantive due process which requires that the person or body to conduct the investigation be competent to act and decide free from bias or prejudice. They claim that barring them from enrollment for the second semester is equivalent to expulsion which cannot be valid and effective without the required MEC's approval (Rollo, pp. 12-13). Furthermore, petitioners point out that the acts of respondents constitute a wanton and deliberate disregard of petitioners' freedom of expression (ibid). In the same manner, intervenors-teachers claim that their constitutional right to due process has been violated when they were summarily dismissed without affording them the opportunity to be heard (Rollo, p. 301). It is beyond dispute that a student once admitted by the school is considered enrolled for one semester. It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a college student registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for 'one semester." It is thus evident that after the close of the first semester, the PSBA-QC no longer has any existing contract either with the students or with the intervening teachers. Such being the case, the charge of denial of due process is untenable. It is a time-honored principle that contracts are respected as the law between the contracting parties (Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 1 00 SCRA 197).<re||an1w> The contract having been terminated, there is no more contract to speak of. The school cannot be compelled to enter into another contract with said students and teachers. "The courts, be they the original trial court or the appellate court, have no power to make contracts for the parties." (Henson vs. Intermediate Appellate Court, et al., supra). Under similar circumstances where students have been refused re-enrollment but without allegation of termination of contracts as in the instant case, this Court has stressed, that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. Such proceedings may be summary and cross-examination is not even an essential part thereof. Accordingly, the minimum standards laid down by the Court to meet the demands of procedural due process are: (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired: (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case (Guzman vs. National University, 142 SCRA 706-707 [1986]). Tested under said standards, the records show that the proceedings in the case at bar, at the outset satisfied conditions No. 1 and 2, but, without a hearing, conditions No. 3, 4 and 5 had evidently not been completed with. It is not disputed that printed Rules and Regulations of the PSBA-Q.C. are distributed at the beginning of each school year to the students including petitioners. The Rules, among other things, provide:

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Enrollment in the PSBA is contractual in nature and upon admission to the School, the Student is deemed to have agreed to bind himself to all rules/regulations promulgated by t he Ministry of Education, Culture and Sports. Furthermore, he agrees that he may be required to withdraw from the School at any time for reasons deemed sufficiently serious by the School Administration. As previously stated, in violation of aforesaid Rules and Regulations, sore students staged noisy demonstrations in the premises of the school. For the settlement thereof, an agreement was reached providing among otliers the regulations for the conduct of protest actions. Despite said agreement, it was alleged that petitioners, acting as the core group of a noisy minoritv, committed tumultuous and anarchic acts within the premises of the school, fanned by the cooperation of the intervening teachers, causing disruption of classes to the prejudice of the majority of the students including the intervening ones; which acts now constitute the subject of this controversy (Rollo, p. 217 ). Accordingly, both students and teachers were given three (3) days from receipts of letter to explain in writing why the school should not take / mete out any administrative sanction on them in view of their participation in the commission of tumultuous and anarchic acts on the dates stated. Respondents alleged that none of the students ever filed a reply thereto. The records show however that a letter was sent by Atty. Alan Rollo Yap, in behalf of all PSBA students to the President of the School Mr. Juan D. Lim, explaining why said students are not guilty of the charges filed against them (Rollo, pp- 2628). Similarly, a faculty member of the PSBA filed as answer in a letter to the same President of the school, where he denied the charges against him (Rollo, p. 52). It therefore becomes readily apparent that while the students and the teachers have been informed in writing of the charges filed against them and they in turn filed their answers thereto, no investigating committee or official was designated by the school authorities to hear and decide the case upon the presentation of evidence of both parties. Presumably, the schools banking on the theory that the contracts have already expired, said procedural steps are no longer necessary. At any rate, this Court obviously to insure that full justice is done both to the students and teachers on the one hand and the school on the other, ordered an investigation to be conducted by the school authorities, in the resolution of November 12, 1986. The investigating committee found among others that: there were concerted mass assemblies conducted on October 2, 3, 7 and 8 at PSBA Quezon City, which were participated in by said students and teachers, and which disrupted classes. The disruption of classes and the barricades in the school entrances constitute violations of existing MECS and PSBA rules and regulations (Rollo, pp. 348-349). It is ironic that many of those who claim that their human rights have been violated are the very ones who emasculate the human rights of the innocent majority. Moreover, petitioners named in the report were found to be academically deficient (Rollo, p. 273) while the intervening teachers apart from participating in acts of illegality against the school were found to have committed various acts of misconduct (Rollo. p. 275). Accordingly, three students were recommended for exoneration from all charges, and some to be honorably dismissed. Of the faculty members eight were recommended to be exonerated of all charges, two to be reprimanded, one for non-renewal of his semester to semester appointment and two to be terminated (Rollo, pp. 359-360). The right of the school to refuse re-enrollment of students for academic delinquency and violation of disciplinary regulations has always been recognized by this Court (Tangonan vs. Paflo, 137 SCRA 246 [1985]; Ateneo de Manila University vs. CA, 145 SCRA 100 [1986]). Thus, the Court has ruled that the school's refusal is sanctioned by law. Sec. 107 of the Manual of Regulations for Private Schools considers academic delinquency and violation of disciplinary regulations vs as valid grounds for refusing reenrollment of students. The opposite view would do violence to the academic freedom enjoyed by the school and enshrined under the Constitution. More specifically, academic freedom is defined by the Court as follows:

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This institutional academic freedom includes not only the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence subject to no control or authority except of rational methods by which truths and conclusions are sought and established in their disciplines, but also the right of the school or college to decide for itself, its ms and objectives, and how best to attain them the grant being to institutions of higher learning-free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. (Tangonan vs. Pao, supra). It is well settled that by reason of their special knowledge and expertise gained from the handling of specific matters falling under their respective jurisdictions, the Court ordinarily accords respect if not finality to factual findings of administrative tribunals, unless the factual findings are not supported by evidence; where the findings are vitiated by fraud, imposition or collusion; where the procedure which led to the factual findings is irregular; when palpable errors are committed; or when a grave abuse of discretion, arbitrariness, or capriciousness is manifest. (Ateneo de Manila University vs. Court of Appeals, 145 SCRA 106 (1986); citing: International Hardwood and Veneer Co. of the Philippines vs. Leonardo, 11 7 SCRA 967; Baguio Country Club Corporation vs. National Labor Relations Commission, 118 SCRA 557; Sichangco vs. Commissioner of Immigration, 94 SCRA 61 and Eusebio vs. Sociedad Agricola de Balarin, 16 SCRA 569). A careful scrutiny of the Report and Recommendation of the Special Investigating Committee shows it does not fall under any of the above exceptions. On the contrary, it is readily apparent that the investigation conducted was fair, open, exhaustive and adequate. Accordingly, there appears to be no cogent reason to disturb the finding of said committee and as manifested by the respondents, the report of said committee has virtually rendered this petition moot and academic. The urgent motion of petitioners and intervenors to cite respondents in contempt of court is likewise untenable. Contempt of court has been defined as a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation. (Hahn vs. Court of Industrial Relations, 136 SCRA 57 [1985]). In the case at bar, there appears to be no defiance of authority by the mere filing by respondents of a motion for reconsideration of the resolution of November 12, 1986. In fact respondent school explained that the intervenors were actually reinstated as such faculty members after the issuance of the temporary mandatory injunction. Thus, in the compliance submitted by said school on November 20, 1 986, it ma manifested that 'without prejudice to the investigation to be conducted by the school authorities, ... and in order that dislocations may not result with respect to the academic activities of the students and the distribution of teaching loads among the teachers, the respondent school has created new classes for the petitioners and the intervening teachers" beginning November 20, 1986. The school manifested that while the investigation was going on, the intervenors-faculty members were teaching and it was only after the investigation, that the recommendations of the Committee were adopted by the school and the latter moved for the dismissal of the case for having become moot and academic. Otherwise stated, respondent school has fully complied with its duties under the temporary mandatory injunction (Rollo, pp. 830- 832). PREMISES CONSIDERED, the petition is hereby DISMISSED, but in the light of compassionate equity, students Who were, in view of the absence of academic deficiencies, scheduled to graduate during the school year when this petition was filed, should be allowed to re-enroll and to graduate in due time. No pronouncement as to costs.

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SO ORDERED. Yap, C.J., Melencio-Herrera and Padilla, JJ., concur. Sarmiento, J., dissents an a separate opinion.

Separate Opinions

SARMIENTO, J., Dissenting: I find distressing the manner in which the majority would so cavalierly dismiss this petition as a simple case of contractual relations and extinguishment of contract. The petitioners have come to this court on serious Constitutional questions, in the main, due process of law, and inferentially, academic freedom and the rights to free speech and assembly. An examination of the records, and a scrutiny of the majority's recital of the case as well, will show that the controversy is indeed ripe for such issues, and accordingly, for Constitutional adjudication. Education is a concern impressed with a public interest, It is a matter of State policy, a policy enshrined in the Constitution, to "protect and promote the right of all citizens to qualify education at all levels and shall take appropriate steps to make such education accessible to all." 1 As part of this guaranty, the Constitution wills it that '[e]very citizen have a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements ." 2 While academic freedom, the Charter decrees, "shall be enjoyed in all institutions of higher learning," 3 it calls upon, nonetheless, the Government to 'exercise reasonable supervision and regulation over-all educational institutions. 4 It is plain that education is more than a contract. With all due respect to my brethren. I find their reliance upon paragraph 137 of the Manual of Regulations for Private Schools forced and oversimplified. As we have noted, registration in an institution of learning is subject to reasonable admission, and conversely, dismissal standards, It is my view that the Manual should be read alongside the Constitutional ban against unreasonable entrance requirements. To say that a student faces automatic disqualification following one semester for the simple reason that his contract has expired is not only to impose an unreasonable academic requirement on the right to education but to defeat the right itself Furthermore, such a view would grant schools unbridled authority over the academe when the Charter itself states that the academe enjoys academic freedom. It will, in effect, furnish them dubious grounds to dismiss a student when he is in fact being dismissed, say, because the school does not like his face. And this is precisely the scenario, however exaggerated, the Constitution guards against. But for student leaders, recurring 'headaches" to many schools, its chilling implications are very real and certain. It would furthermore allow school heads to shirk charges of denial of due process as in ts case by a simple invocation of the terms and conditions of the students' contracts. it would enable schools to defy reinstatement orders, whether by local school committees, agencies of the Department of Education, or by the courts of law, by postponing compliance, one way or the other, until the end of the semester and upon the consequent expiration of the contract. There is nothing that would stop them under the doctrine the majority would advance. There is further no denying, the fact that agreements of this character are contracts of adhesion that leave the other party but a twofold option: to take them or leave them. It is not much of a choice in the ultimate analysis, with the cards stacked in the proponent's table, and in such cases, we have not hesitated to come to the aid of such other party. 5

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While there is an existing contractual relation between school and students, the agreement should not be the final basis settling school student disputes. To that extent, paragraph 137 of the Manual for Regulations of Private Schools would be open to Constitutional questions. It is important to determine, at the same time, whether the school itself, in meeting out expulsion against its students, had acted within the permissible limits implied in the Constitution. In any event, the contract should yield to the Constitution. I do not agree that "[t]he school cannot be compelled to enter into another contract" 6 with its students. To begin with, reinstatement of students, whenever warranted, is not strictly speaking, compulsion upon schools to enter into a contract with them. It is merely to undo a wrong previously done. But if indeed, contract in this case were a valid yardstick, why allow reenrollment to the petitioners-students (who have not sustained academic deficiencies)7 whose contracts have expired? If the contract is the 'law between the parties," 8 and that "[t]he courts ... have no power to make contracts for the parties 9 by what authority may the majority order reinstatement? Surely, the majority speaks of 'compassionate equity" 10 to justify reinstatement, but that gives rise to yet another problem: Where does one draw the line? As I have noted, it is too easy to invoke "contract if it would suit one's purpose, but it seems even easier to cite "equity" if it would better serve that purpose. Following the contract theory further, why was it necessary for the Court to order the investigation of the case, pursuant to our resolution of November 12, 1986, when there seemed nothing more to investigate, the petitioners' supposed contracts having expired? The majority would rely on "full justice" 11 that elusive judicial standard to justify its action, but since, as the majority would so clearly stress, the contract is the law between the parties, had not "justice" been done upon the alleged expiration of the parties' covenants? After all, is not 'justice" presumed from the law? 12 I do not see as a matter of fact how "full justice" would be served by ordering an inquiry. There is no debate that the petitioners had been denied due process, in the absence of any "investigating committee or official designated by the school authorities to hear and decide the case" 13 In Guzman vs. National University," 14 we held: Under the Education Act of 1982, the petitioners, as students, have the right among others "to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, except in case of academic deficiency, or violation of disciplinary regulations." Petitioners were being denied this right, or being disciplined, without due process, in violation of the admonition in the Manual of Regulations for Private Schools that "(n)o penalty shall be imposed upon any student except for cause as defined in ... (the) Manual and/or in the school rules and regulations are duly promulgated and only after due investigation shall have been conducted." This Court is therefore constrained, as in Berina v. Philippine Maritime Institute, to declare illegal this act of respondents of imposing sanctions on students without due investigation. 15 To order an investigation is to accord moreover then the respondents a chance to correct their errors indeed, violations when they should have been forthwith held liable therefor. And fortunately for them, the investigation allowed there a fresh chance to fish for lapses the petitioners might have committed, and as it would indeed turn out, certain petitioners were supposed to be suffering from alleged scholastic deficiencies. It is my thinking that by directing the respondents to conduct an "investigation," we did not thereby condone the acts the petitioners now impugn (denial of due process), but simply prepared the parties a forum to thresh out anew whatever differences there were dividing them. We did not equip the respondents with ammunition to launch a final offensive oil the petitioners. If that were the case, the respondents' existing expulsion order without due notice and hearing to the petitioners students) would have been an anti-climatic prejudgment of whatever findings the investigation might yield. For certainly, we did rot then expect the respondents to reverse themselves, except perhaps to polish their existing dismissal ruling. Notwithstanding the majority's postures with due respect of leniency toward the petitioners, the majority has been in fact unduly soft on the respondents.

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With respect to the alleged failing grades incurred by certain petitioners, I find the same to be an eleventhhour effort by the respondents to justify dismissal. Students' academic performance is a matter of record that requires no investigation. If it is true that these students had incurred failing grades, why did they surface only in mid-semester and in the investigation? Estoppel is an impediment against the respondents' arguments, they having admitted these students in spite of such delinquencies. It is true that in Villar vs. Technological Institute of the Philippines," 16 this Court recognized as part and parcel of academic freedom the schools' "right to set academic standards to determine under what circumstances failing grades suffice for the expulsion" 17 but the Court likewise warned that "[i]t cannot be utilized to discriminate against those students who exercise their Constitutional rights to peaceable assembly and free speech." 18 In Guzman furthermore, we said that expulsion arising from academic delinquency depends on proof of existing rules providing therefor. 19 There is no doubt that in the case at bar, a controversy had been raging on campus, a controversy serious enough to force a school student dialogue. Obviously, it was not a case of a few hotheads on a rampage on the school grounds, but apparently, student leaders seeking redress for some 'tegitlinate grievance. I think that the respondent College was overreacting when, rather than confront the petitioners, it threatened them which disciplinary action. I am likewise perturbed by the blanket condemnation my brethren would level against the petitioners for holding the concerted actions ill question. It is not disputed that the same turned out to be "noisy" 20 and resulted in the disruption of ongoing classes, but my question is: Does this warrant a sweeping rebuke ? And I think it would be protesting too much to highlight as well the petitioners' alleged disregard of "the human rights of the innocent majority." 21 This case was precipitated by alleged violations against due process committed by the respondent College, and not on a complaint by the "innocent majority." There is therefore no need for sarcasm. Freedom of expression and assembly are nights held sacred b the Constitution, 22 and made available to all the citizenry without distinction or discrimination. This was our holding in Malabanan Mulabatan vs. Ramento. 23 It was likewise our holding in that case that some disruption is normal in such gatherings. I quote: ...If in the course of such demonstration, with an enthusiastic audience goading them on, utterances, extremely critical, at times even vitriolic, were let loose, that is quite understandable. Student leaders are hardly the timid, diffident types. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full credence to their Malabanan fiey exhortations. They take into account the excitement of the occasion, the prospensity of speakers to exaggerate, the exhuberance of youth. They give the speakers the benefit of their applause, but with the activity taking place in the scholl premises and during the daytimem, no clear and present danger of public disorder is discernible. 24 Malabanan finds its origin in another decision, more than seven decades antedating it, U.S. vs. Apurado. 25 I quote: It is rather expected that more or less disorder will mark the public assembly of the people to protest against greivances whether real or imaginary, becase on such occasions feeling is alwas wrought to a high pitch of excitemnet, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over theis irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterized the assembly as seditious and tumultous rising against the authorities , the the dright to assemble and to petition for redness of grevances would become a delusion and a snare and the attempt to exercise it on the moset righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to

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pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefo, but the utmost discretion must be exercised in drawing th line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultous uprising. 26 Notwithstanding such disturbances, and in the absence of threats of a clear and present danger, we sustained the exercise of the right on the strength primarily of the Contitutional guaranties. I do not see why this Court shoud reverse itself now, in view furthermore of a new Constitution that bares a stronger bias toward human rigths and civil liberties. While I do not rule out entirely, punishment for disorderly conduct by genuine troublemakers and we did not rule out such a recourse in either Malabanan or Apurado I do not see how, in the case, any punishment, more so that of expulsion, should be due. There is nothing in the records that would show that the petitioners, other than for holding "noisy" demonstrations, were guilty of unruly behavior. The fact that the same were marked with tension and excitement, as we held in Malabanan and Apurado, does not make them "unruly" To impose penalties upon the petitioners is indeed to put a price on the exercise of a right, a right the fundamental law holds out for free. To be sure, there is mention of alleged "barricades" being set up "in the school entrances" 27 supposedly in breach of "existing MECS and PSBA rules and regulations." 28 Significantly, there is no allegation that the petitioners resorted to violence, or threatened one, that would admittedly present a clear and present dandger for which the schoo may respond with remedial measures. Mere allegations taht barricades were put up, in my belief, would not suffice to warrant a disciplinary action by the schools authorities in the absence of allegations that violence or threats thereof attended tha same. At any rate, the query that arises, assuming that some penal measure were in order, is: Does the punishment (expulsion) fit the crime(disrupting classes)? In Malabanan, we referred to penalties being disproportionate with the offense 29 in connection with the one-year suspension prescribed by the school for similar activities. We struck down the suspension order and imposed, in its stead, a suspension of one week. I submit that the same principle applies here. I agree that it is within schools' right "to refuse reenrollment of students for academic delinquency and violation of disciplinary regualations," 30 but the presumes htat the acts complained of indeed constitute violations. If the respondents' regulations, or the rules of the Department of Education, Culture, and Sports for the matter, enjoin the exercise of Constitutional rights, they are null and void since they are indubitably, inferior to the Charter. Neither Tangonan vs. Pao 31 nor Ateneo de Manila University vs. Court of Appeals 32 is in point. Neither case involved the exercise of fundamental civil liberties. Tangonan referred to pure question of academic deficiency, while Ateneo. dealt with charges of unbecoming conduct levelled against a student for fighting. 33 The instant case carries, however, a political color, a consideration that differentiates it from either case. It is true that academic freedom pertains to houses of education, as we defined the term in Tangonan, but "academic freedom does not mean untramelled liberty for schools and schools authorities. Educational institutions, under the Constitution, and as an exception to academic freedom, are subject to State regulation. Moreover, the privilage applies to students as well. Why recognize the schools right to it and deny that of students? In any case, it is my considered opinion that the respondent College had abused that freedom that comples some drastic action from this Court. The majority would write finis to the case by a non-chalant acceptance of the respondents' inverstigative committee's findings base on the usual escape valve of finality of findings of administrative bodies. My point is that the petitioners had been underdogs from the very beginning, and under the circumtances, they deserved a fairer tribunal to take up their case. it is not that I have doubts about the capacity of such an investigating committee to dispense justice, but as an agent of administration, it was obviously acting for the interest of the school. And not surprisingly, in tis recommendation, it would proposed the

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expulsion of students on account of failing grades-a ground that has nothing to do with the subject of the investigation. As I have observed, I read our resolution of November 12, 1986 as an appeal upon the parties to sit down anew and to find mutual solutions to the ills of their academic community. It was not ment to be a call for an adversarial confrontation between them that would have and had allowed the shool to unravel the petitioners' deliquencies as to grades and other dirty linen. We came to the charges of contempt of which the petitioners urge that we find the respondents guilty. The majority would absolve the respondent on the ground that the intervenors faculty members were in fact given teaching loads pending this petition. What the majority is silent about however, is the fact that in the same resolution of November 12, 1986, we directed the respondents "to re-enroll the petitioners" (students). 34 The petitioners-students shortly filed an urgent motion to cite for contempt directed against the respondent College arising from its discharge of three petitioners from the students roll. 35 Subsequently, the petitioners filed yet another motion "to re-enroll. 36 It is not controverted that despite our reinstatement directive, the respondent failed and refused to comply there with as far as the students are concerned. For such an act of defiance, it is my opinion that they are liable for contempt. I would then have disposed of the case as follows: 1. Exonerate the petitioners, students and faculty members alike, from any leability, and effect their reinstatement, exept those on whom I would recommend the penalty of suspension, subject to the provision of the succeding paragraph regarding service of suspension. 2. Impose the penalty of one-week suspension upon those petitioners actually guilty of disruption of classes, that is disruption resulting in actual stoppage of classes as a direct consquence of the mas actions in question and through no voluntary vacating of the classromms by student or instructiors, but consider the suspension to have been served in view of the respondents' refusal to reinstate them pending the resolution of the petition; and 3. Find the respondents guilty contempt. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 105014 December 18, 2001

PILIPINAS KAO, INC., petitioner, vs. THE HONORABLE COURT OF APPEALS and BOARD OF INVESTMENTS, respondents. KAPUNAN, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court to set aside the decision of the respondent court in CA-G.R. SP No. 24979, titled "Pilipinas Kao, Inc. vs. Board of Investments." In that decision, respondent Court of Appeals sustained the reduction of tax credits on net value earned and net local content applied for by petitioners in 1988 and 1989, an act of respondent Board of Investments (BOI), which petitioner assailed as invalid for a number of reasons. The essential facts as found by the respondent court and which are not disputed are quoted hereunder: Petitioner, Pilipinas Kao, Inc. is a corporation organized and existing under the laws of the Philippines with principal office at 108-A E. Rodriguez, Jr. Avenue, Libis, Quezon City. It is a

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corporation engaged in multiple areas of registered activity, which is to say it has a number of projects registered with respondent Board of Investments (BOI, for brevity). For each registered project, petitioner was issued Certificates of Registration as follows: Project 1. 2. 3. Certificate of Registration No. 76-611 78-725 87-1247 Date Issued Law of Registration

Aug. 24, 1976 R.A. No. 6135 Mar. 20, 1978 R.A. No. 6135 Jan. 08, 1987 P.D. No. 1789, as amended by B.P. Blg. 391 July 29, 1987 P.D. No. 1789 as amended by B.P. Blg 391 Feb. 29, 1988 E.O. No. 226 July 26, 1988 E.O. No. 226 Jan. 31, 1990 E.O. No. 226 Mar. 16, 1990 E.O. No. 226

4.

87-1476

5. 6. 7. 8.

88-0240 EP 88-496 EP 89-965 EP 90-082

(pp. 1-2, Comment; pp. 103-104, Rollo). Each project is entitled to a certain set of incentives depending upon, among others, the law of registration and the status and type of registration. The present controversy refers only to the tax incentives provided for under Article 48 of P.D. No 1789, as amended by B. P. Blg. 391, which states: ART. 48. Incentives for Registration New or Expanding Export Producers. All registered export producers, whether pioneer or non-pioneer, shall be granted the following incentives to the extent engaged in new capacity or expansion of capacity in a preferred area of investment xxx xxx xxx

" '(c) Tax Credit on Net Value Earned. For the same period and at the same rates provided for in subparagraph (c), Article 45, a tax credit on net value earned shall be granted to registered export producers. " '(d) Tax Credit on Net Local Contents of Exports. For the first five (5) years of commercial operation or registration, all registered new or expanding export producers shall be entitled to a tax credit equivalent to ten percent (10%) of net local content without prejudice to the further enjoyment of the incentive for another period of five (5) years immediately following, the tax credit to be computed on the basis of the increment in real terms over the average net local content for the immediate preceding three years of enjoyment of this incentive. For purposes of calculation of the tax credit, 'net local content' shall mean value of export sales less depreciation of capital equipment and the value of imported raw materials and supplies and indigenous commodities which the Board may exclude if they are not anyway available under clearly more favorable terms in the international market."' (Emphasis supplied) Article 45 (c), in relation to Article 48 (c), in turn provides: (c) Tax Credit on net value earned. For the first five (5) years of commercial operation. all registered domestic producers shall be entitled to a tax credit equivalent to five percent (5%) of net value earned. Those engaged in pioneer projects shall be entitled to this incentive to the extent of ten percent (10%) of net value earned over the same period or coterminous with the remaining period of availment of the registrant who first starts commercial operation in case there are several

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registered pioneer enterprises in the same activity, regardless of their respective dates of registration.. For raw materials and For purposes of calculation of the tax credit. net value earned' shall mean value of sales less cost of raw materials and components. supplies and utilities and depreciation of capital equipment components which are produced by the registered enterprise, allocated costs may be determined by the Board.' (Emphasis supplied) (pp. 4-5, Petition; pp. 11-12, Rollo). These tax incentives apply only to project Nos. 3 and 4 of petitioner. Certificate of Registration No. 87-1476 (Project No. 4) is that of new export producer, whereas Certificate of Registration No. 87-1247 (Project No. 3) is that of an expanding export producer (which is an expansion of petitioner's existing projects registered under R.A. No. 6135). On March 31, 1989, petitioner filed applications for its 1988 tax credits on the Net Value Earned (NVE, for short) for P8,583,328.00 and on the Net Local Content (NLC, for brevity) for P25,928,673.00 for a grand total of P34,512,000.00 (Annexes "J" & "K", respectively). The computations are laid down as follows: "NET VALUE EARNED COMPUTATION Total Sales for the Taxable Year of Availment Less: Raw Materials and Components Supplies Utilities Depreciation of Capital Equipment Net Value Earned (NVE) Tax Credit Computation 1. For Pioneer Tax Credit on Net Value Earned (10% of NVE) NET LOCAL CONTENT COMPUTATION Export Sales for the Taxable Year of Availment Less: Imported Raw Materials and Components Imported Content of locally Purchased Raw Materials and Components Imported Supplies Imported Content of locally Purchased Supplies Depreciation of Capital Equipment Indigenous Commodities Excluded By the Board ( If Applicable) Net Local Content (NLC) Tax Credit Computation p align="right">P4,598,624 P278,369,748 P155,565,701 P15,868,160 P20,132,445 P3,162,698 194,729005 P85,833,281 P280,562,286

P8,583,328

P_________ P11,321,699

P_________ P3,162,698

P_________ P19,083,021 259,286,727

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1. For Pioneer Tax Credit on Net Local Content (10%) of NLC) (pp. 7-8. Petition, pp. 14-15. Rollo)

P25,928,673

On May 10, 1990, respondent Issued Board Resolution No 188 S' 90 granting petitioner's application for tax credit but only in the following reduced amounts: NVE NLC Total P1,512,758.00 P2,631,018.00 P4,223,776.00

(Annes "9" Comment) Notified of respondent s decision, petitioner requested for a reconsideration. but before respondent could act thereon, petitioner again filed on July 3, 1990 its applications for 1989 tax credits on the NVE in the amount of P9,649,459.00 and on the NLC, P25,648,401.00, for a grand total of P35,297,860.00. The computation are as follows: NET VALUE EARNED COMPUTATION Total Sales for the Taxable Year of Availment Less: Raw Materials and Components Supplies Utilities Depreciation of Capital Equipment Net Value Earned (NVE) Tax Credit Computation 1. For Pioneer Tax Credit on Net Value Earned (10% of NVE) NET LOCAL CONTENT COMPUTATION Export Sales for the Taxable Year of Availment Less: Imported Raw Materials and Components Imported Content of local Purchased Raw Materials and Components Imported Supplies Imported Content of locally Purchased Supplies Depreciation of Capital Equipment Indigenous Commodities Excluded by the Board (If Applicable) P280,227,963 P11,242,443 P149,817.799 P16,051,486 P17,652,136 P2,038,846 185,560,267 P96,494,585 P282,054,852

P9,649,459

P_________ P10,462,669 P_________ P2,038,846

P_________

P23,743,958

256

Net Local Content (NLC) Tax Credit Computation 1. For Pioneer Tax Credit on Net Local Content (10% of NLC) (pp. 10-12, Petition; pp. 17-19, Rollo).

P256,484,005

P25,648,401"

On July 27, 1990, respondent denied petitioner's request for reconsideration anent its 1988 tax credit, the denial being communicated to petitioner in a letter dated August 1, 1990 (Annex "11", Comment) and received by the latter on August 15, 1990. On December 17, 1990, petitioner again moved for reconsideration of respondent s letter dated August 1, 1990 (Annex "12", Comment), but the same was denied by respondent in a letter dated March 11, 1991 (copy of which was received by petitioner on March 15, 1991).(Annex "13", Comment) On March 11, 1991, respondent also advised petitioner of the approval of its application for the year 1989 tax credit but only in the following reduced amounts: NVE NLC Total P3,441,473.00 P649,471.00 P4,090,944.00

(Annex "13", Comment). Petitioner then filed with the Honorable Supreme Court, by registered mail on April 15, 1991, a motion for extension of time to file petition pursuant to Article 82 of the Omnibus Investments Code; it likewise filed a second motion for extension of time to file petition on May 15, 1991, both of which were not acted upon by the Honorable Supreme Court. However, on May 6, 1991, the Honorable Supreme Court issued a resolution referring the instant petition to this Court. (p. 5, Rollo). 1 Respondent Court dismissed the petition for review "on technical and substantive grounds." On technical ground, respondent court ruled that the petition for review was filed beyond the thirty-day period of appeal set in Article 78 of P.D. 1789, as amended by B.P. Blg. 391. In ruling against the timeliness of the petition for review, respondent court made the following findings: In the instant case, petitioner received a copy of respondent's letter dated August 1, 1990 (letter denying petitioner's first request for reconsideration of respondent's decision relative to petitioner's 1988 tax credit on NVE and NLC) on August 15, 1990 (p. 13, Petition). Yet, it filed its second request for reconsideration only on December 17, 1990, or more than four (4) months from receipt of the challenged letter-decision. This clear failure and negligence of petitioner to interpose a timely appeal within the thirty (30) days reglementary period is fatal to its cause. The woes of petitioner were compounded when it received a copy of respondent's letter-decision dated March 11, 1991 (letter denying petitioner's second request for reconsideration, and granting its 1989 tax credits at reduced amounts) on March 15, 1991, and yet it utterly failed to interpose an appeal in due time as provided for in P.D. No. 1789. as amended It only filed this petition only on May 30. 1991.2 Two letters of respondent BOI were involved in CA-G.R. SP No. 24979. The first concerns petitioner's application for tax credits for 1988 and the second its application for tax credits for 1989.

257

On the second matter concerning the 1989 tax credit, respondent court noted that its letter of March 11, 1991 reducing the tax credit applied for was received by petitioner on March 15, 1991 and as it found: Petitioner then filed with the Honorable Supreme Court, by registered mail on April 15, 1991, a motion for extension of time to file petition pursuant to Article 82 of the Omnibus Investments Code; it likewise filed a second motion for extension of time to file petition on May 15, 1991, both of which were not acted upon by the Honorable Supreme Court. However on May 6, 1991, the Honorable Supreme Court issued a resolution referring the instant petition to this Court. x x x 3 The first motion for extension of thirty (30) days filed with this Court on April 15, 1991 was on time because April 14, 1991, the last day for appeal, was a Sunday. The second motion for extension of fifteen (15) days was filed with this Court on May 15, 1991, was also on time because petitioner received a copy of the Resolution of May 6, 1991 referring this case to the Court of Appeals only on May 29, 1991. It was in the latter court that the petition for review was filed on May 30. 1991. Petitioner's judicial recourse from BOI's letter of March 11, 1991 in so far as it dealt with the 1989 tax credit application was filed within the periods of extension prayed for in two motions seasonably filed with this Court. The failure of this Court and respondent Court of Appeals to act upon these motions was an oversight not of petitioner's making and it should not result in any prejudice to it. For this reason, and considering that the motions for extension were not denied we consider the petition filed on time insofar as it concerns the 1989 tax credit application summarily resolved in the March 11 letter. For added measure, this Court cannot ignore the fact, so obvious upon the record, that respondent BOI did not render a decision in the manner prescribed by its own rules and the law. We take cognizance of the flaw because it has a bearing on the timeliness of the petition, a key issue involved in this case, which has to be resolved in order to arrive at a just decision on the merits of the case. 4 Moreover, the perceived shortcoming also offers the opportunity to remind BOI and other quasi-judicial agencies exercising quasijudicial functions of the prescription of the law and in the case of BOI, also its own rules, that their decision in contested cases shall be in writing and shall state clearly and distinctly the facts and the law on which these are based.5 Indeed, a judicious and well-reasoned resolution of the questions peculiar in their fields of expertise, carries a strong persuasive effect and will go a long way in easing the courts' burden. The questioned acts of respondent BOI need to be examined in the light of this mandatory requirement of the law and its own rules. In respect to the incentive availment for 1988, respondent BOI substantially reduced the tax credit on net local content and net value earned applied for by the petition for that year, without explaining the basis or reason for the reduction .An explanation was in order if only because according to petitioner, and this was not denied. BOI granted the full incentives for 1987. Yet, for the following year, 1988, BOI simply passed a Resolution on May 10, 1990 which is contained in the certification of it's Board Secretary, to wit: CERTIFICATION Quoted hereunder is an excerpt from the Minutes of the Board Meeting held on May 10, 1990: "RESOLVED, that PILIPINAS KAO, INC., be, as it is hereby GRANTED tax credits on Net Local Content and Net Value Earned in the amount of P2,681,018,165 and Pl,542,758.61, respectively (net of E.O. 1045 amortizations for 2 years) in consideration of the foregoing resolutions (Bd. Res. No. 188 S' 90)." Makati, Metro Manila, 23 July 1991. CERTIFIED CORRECT:

258

(Sgd.) JOSEFINA Q. GARCIA Acting Board Secretary6 The board resolution cited in the certification, bare as it is, is offered by respondent BOI as its decision on the matter of the 1988 tax incentive availment. It is not clear from the record how the resolution was communicated to petitioner and when the latter received it. What is on record is petitioner's Letter dated June 4, 1990 asking for reconsideration and for the full allowance of the tax credit as applied for.7 In that letter, petitioner contested the reduction which BOI accomplished with the application for the first time, of a deductible "base figure" equivalent to the highest production volume for a three-year period before the expansion capacity was registered Petitioner argued that the use of the "base figure" was not sanctioned by the law and contravened the long standing practice of respondent BOI, as well as the policy and intent of the State in granting the incentives. Respondent BOI denied the request for reconsideration in its Letter dated August 1, 1990. 8 It is to be noted that in refusing to reconsider, respondent BOI did not address any of the issues presented by the petitioner, simply saying in its August 1 letter "that the Board in its meeting on July 27, 1990 denied you request for reconsideration of 1988 net local content and new value earned of tax credit application." Because of the failure of respondent BOI to resolved the issues, petitioner again asked for reconsideration by a Letter dated December 17, 1990,9 reiterating that the use of the base figure defeated the very purpose of the law which was to encourage private domestic and foreign investment and reward performance contributing to economic development. Further, that the use of the highest attained production in the three (3) years preceding the expansion as base figure in effect penalized petitioner for its efficiency. Denying petitioner's last request in the same cavalier fashion, respondent BOI simply informed it "that the Board in its meeting of March 5. 1991 denied your request for reconsideration of your NLC/NVE tax credit application for 1988."10 In the same Letter of March 11, 1991, respondent BOI informed petitioner that its application for 1989 NLC/NVE tax credit had been approved in reduced amount stated therein, again without any explanation for the reduction. This letter is supposed to be the decision of the BOI on the matter. This brings into focus the question of whether BOI rendered a decision within the meaning of its own rules which requires that the decision in a contested case shall be in writing and shall state clearly and distinctly the facts and the law on which it is based. It reads. Sec. 4. Contents of Decision. The orders, resolutions and decision determining the merits of the case shall be in writing and shall state clearly and distinctly the facts and the law on which it is based.11 It is readily evident that the issues raised and arguments proffered by petitioner in asking for reconsideration were weighty enough to deserve a full length decision as prescribed by the rules. The manner by which BOI brushed off petitioners reiterative protests did not amount to a decision within the mandate of its own rules, nor that contained in the Administrative Code of 1987 which similarly provides as follows: SEC. 14. Decision. Every decision rendered by the agency in a contested case shall be in writing and shall state clearly and distinctly the facts and the law on which it is based.12

259

We have occasion to rule that the constitutional and statutory mandate that "no decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based.13 applies as well to dispositions by quasi-judicial and administrative bodies. In Malinao vs. Reyes14 we held that the voting in the Sanggunian in which the majority found the respondent official guilty of the administrative charge was not a decision contemplated in the law, and had no legal effect as such. In the context of what the law and its own rules prescribe, as well as our applicable pronouncements, the BOI Resolution of May 10, 1990, as well as its Letters of August 1, 1990 and March 11, 1991 did not qualify as "decision," absent a clear and distinct statement of the facts and the law to support the action. Lacking the essential attribute of a decision, the acts in question were at best interlocutory orders that did not attain finality nor acquire the effects of a final judgment despite the lapse of the statutory period of appeal. Thus, the element of time relied upon by respondents does not bar our inquiry into the substantive merits of the petition, and that respondent court erred in considering the petition for review filed out of time. While BOI should first resolve the merits of the case in the proper exercise of its primary jurisdiction, we shall nevertheless proceed with this review for procedural expediency and consideration of public interest involved in the questions before us which bear on the certainty and stability of economic policies and proper implementation thereof. For it cannot be denied that inappropriate and irresolute implementation of our investment incentive laws detracts from the very purpose of these laws. The essential facts which gave rise to the substantive issue resolved by respondent court and which is now before this Court are not disputed. Petitioner is engaged in the manufacture for export of methyl esters, refined glycerine and fatty alcohols. It initially registered with respondent BOI on August 24, 1976 and March 20, 1978 as an Export Producer pursuant to Republic Act No. 6135, as amended, otherwise known as the Export Incentive Act Under this registration approved by BOI, petitioner's registered production capacity were as follows: Product Methyl Esters Refined Glycerin Fatty Alcohols. Hydrogenated Fractionated 18,000 MTPY 17,000 MTPY15 Production Capacity 22,000 MTPY 2,700 MTPY

Batas Pambansa Blg. 391, otherwise known as the Investment Policy Act of 1983 was enacted in 1983, to amend P.D. 1789. The new law provided, among others, for tax incentives for new and expanding export producer. To avail itself of these tax incentives, petitioner applied with BOI for registration of its expanded production capacity, which together with the then existing registered capacity are detailed below: Original Registered Capacity 22,000 MTPY Expanded of Additional Capacity 13,000 MTPY

Product Methyl Esters

260

Refined Glycerin Fatty Alcohols Hydrogenated Fractionated Refined Methyl Esters and or Fractionated Refined Fatty Alcohols..

2,700 MTPY 18,000 MTPY 17,000 MTPY

1,300 MTPY 9,000 MTPY 8,000 MTPY

None

2,000 MTPY16

BOI approved petitioner's application and consequently issued in its favor on January 8, 1987 a certificate of registration as an expanding export producer on a pioneer status to the extent of the expanded or additional capacity.17 As an expanding export producer on a pioneer status, petitioner was entitled to certain incentives granted under that law. Among such incentives were the "tax credit on net value earned" provided in Article 48(c) in relation to Article 45(c) of the law and the "tax credit on net local content of exports" as provided in Article 48(d), thereof. These provisions are cited in the decision of respondent court in CA-G.R. SP No. 24979 quoted earlier in this decision. The initial application by petitioner for tax credit incentives for the year 1987 was approved by BOI substantially as applied for. But those applied for in 1988 and onwards were drastically reduced by BOI with the adoption and application of a deductible "base figure" provided in its Tax Credit on NLC and NVE Manual of Operations, which reads as follows: xxx xxx xxx

VII. COMPUTATION OF APPROPRIATE BASE FIGURE FOR TAX CREDIT ON NLC AND NVE A. New Producer No base figure used B. Expanding Domestic Export Producer With Registered Existing Capacity 1. Base figure for NVE shall be existing registered capacity or highest attained production volume, whichever is higher. If product is heterogeneous, base figure shall be highest projected value of sales or highest attained sales value, whichever is higher 2. Base figure for NLC shall be highest projected value of export sales or highest attained export sales value, whichever is higher. xxx xxx xxx18

The use of the "base figure" precipitated the present controversy because of the considerable diminution of what petitioner considered to be the fiscal incentives it deserved under the law. At the core of the present dispute is the validity of BOI's Manual of Operations, which petitioner has assailed as void for lack of publication and because it effected an impermissible amendment of the law and subverted its purpose and intent.

261

Respondent court's discussion and resolution of some of the issues are succinctly stated in its decision in CA-G.R. SP. No. 24979, thus: On Substantive Ground Petitioner maintains that respondent arbitrarily deducted from its (petitioner) total sales a 'base figure" equivalent to its "highest attained production volume'' in the three-year period preceding registration of its expanded production capacity under P.D. No. 1789, as amended. According to petitioner, the term "base figure'' in computing tax credits has no basis in the statute, and therefore, its use in null and void. Petitioner s posture is more apparent than real, and is not convincing. As correctly argued by the Solicitor General, the term "base figure'' is simply used to conveniently separateexisting production capacity on one hand from the registered new and/or expanding production capacity on the other, as concepts provided for in P.D. No. 1789, as amended by B.P. Blg. 391. The segregation is material for the purpose of determining which capacity/project is entitled to tax credit on NLC and/or NVE. As can be clearly gathered under paragraphs (c) and (d) of Article 48 of P.D. 1789 as amended by B.P. Blg. 391 in relation to paragraph (c) of Article 45 thereof (earlier quoted in this decision) only those new or expansion production capacity are entitled to NVE and NLC, existing production capacity are not. To determine therefore the production capacity/project which is entitled to NVE and NLC incentives under aforesaid law, it is imperative to set apart existing from either new or expanding capacity. It was in this context that respondent adopted the term "base figure" to call existing capacity or highest attained capacity from which to reckon the registered expansion capacity. Thus, on respondent's Tax Credit on NLC and NVE Manual of Operations (Annex 14", Comment) it states: "VII. COMPUTATION ON APPROPRIATE BASE FIGURE FOR TAX CREDIT ON NLC AND NVE. A. New Producer No base figure used. B. Expanding Domestic/Export Producer With Registered Existing Capacity 1. Base figure for NVE shall be existing registered capacity or highest attained production volume. whichever is higher. If product is heterogeneous, base figure shall be highest projected value of sales or highest attained sale value whichever is higher. 2. Base figure for NLC shall be highest projected value of export sales or highest attained export sales value whichever is higher. (Annex ''14", Comment. Emphasis supplied ) The definition of base figure as aforequoted includes "highest attained production volume" (meaning higher than its registered capacity) simply because if an existing registered enterprise has attained a capacity higher than its registered capacity, then it follows that said attained capacity is the capacity existing prior to expansion. And the capacity in excess of the registered capacity is not entitled to NLC and NVE obviously because it is not registered. Indeed, the term "base figure" is nowhere to be found in the law, but the use thereof in the manner already discussed does not render its adoption without basis. "Base figure" is used to refer to "existing capacity'' which is not entitled to tax credit on NLC and NVE under the law. Contrary therefore to petitioner's contention, the term "base figure" has basis in law, i.e. the term existing

262

capacity", and said "base figure" does not subvert the purpose of the law which is to grant tax credit on NVE and NLC to new and expandingproduction capacity only."19 As admitted by respondent court, the term "base figure" is nowhere to be found in the law. By way of jurisdiction for its application, respondent court ruled in essence that the "base figure" was simply the capacity existing prior to expansion which was not entitled to the fiscal incentives reserved for new or additional capacity. It then concluded that the formulated "base figure" had basis in the law itself. It is to be conceded that the original registered capacity is not "new capacity" or "expansion of capacity" that the law intended to encourage and reward In this regard, respondent court is correct. Indeed, when petitioner applied for, and BOI registered its expanded or additional capacity, it mean, that only this and not the original registered capacity is entitled to the incentive under B.P. Blg. 391. But respondent court went further and ruled that "if an existing registered enterprise has attained a capacity higher than its registered capacity, then it follows that said attained capacity is the capacity existing prior to expansion.20 This simplistic view failed to take into account the policy and intent of the law and overlooked the absurd and unjust consequence that results from such construction and application of the law. Thus, in the case of petitioner whose performance exceeded its original registered capacity, the base figure used was the highest attained production volume before the registration of its new expanded capacity. This meant a bigger base figure deductible from the net value earned (NVE) and net local content (NLC) entitled to the fiscal incentive, than another enterprise whose production never reached its registered capacity. In the case of the latter, the base figure is the registered capacity, nothing more. The tax credit incentive being a percentage of the net value earned and the net local content the larger the deductible base figure the smaller the tax credit incentive. As petitioner correctly lamented, it would have been better off if it did not perform well enough to exceed its original registered capacity, because the use of the highest attained production volume as a base figure, and not simply the registered capacity, resulted in penalizing it for producing and exporting more than its official commitment and placing it in a position inferior in terms of incentives, to a similar enterprise which failed to produce more than its registered capacity. There is a sense of irony in penalizing petitioner as BOI did for the excess production when it meant correspondingly, more foreign exchange earnings from its export, more job opportunities and a host of direct and indirect benefits to the economy. These are precisely the reasons for the incentives granted by the law. It is true that the excess in production came about before petitioner registered its expanded capacity in 1987, but it only means that petitioner began to serve the purpose of the low since its enactment in 1983. While the excess occurring in the interim was not entitled to fiscal incentive as an expanded capacity, there is no sense in penalizing petitioner for such excess. For another cogent reason, the highest attained production capacity is inappropriate as a base figure. It is reasonable to assume that actual production is affected in large measure by the vagaries of market forces, the law of supply and demand, and a host of unforeseen and unforeseeable factors that contribute to its lack of constancy. Given these variants, a circumstantial and temporary peak in production capacity should not be interpreted as the "existing capacity," in a way disadvantageous to petitioner. It is thus difficult to accede to respondents' urging that the application of the highest attained production capacity as a base figure is implicit or has basis in the law itself, or otherwise justiciable.

263

This is not a correct view. For one, it leads to an unreasonable situation already discussed and rejects the presumption that absurd or undesirable consequences are never intended by a legislative measure. 21 But here, consequences of the kind were unwittingly read into the law. To be sure, as respondent court admits, the concept of "base figure'' is "nowhere to be found in the law.'' Nor can it he considered as being in accord with the purpose and intent of the law, when it is not. The policy of the law as spelled out in the Investment Policy Act of 1983 is to stimulate private domestic and foreign investments in industry and other sectors of the economy to achieve among others "increased volume and value of exports for the economy." We find in the law the expressed declaration of investment policy, thus: SECTION 1. This Act shall be known and referred to as the Investment Incentive Policy Act of 1983. SEC. 2. Declaration of Investment Policy. It is the policy of the state to encourage private domestic and foreign investments in industry, agriculture, mining and other sectors of the economy which shall: provide significant employment opportunities relative to the amount of the capital being invested; increase productivity of the land, minerals, forestry, aquatic and other resources of the country, and improve utilization of the products thereof; improve technical skills of the people employed in the enterprise; provide a foundation for the future development of the economy; meet the tests of international competitiveness; accelerate development of less developed regions of the country, and result in increased volume and value of exports for the economy. It is the policy of the State to extend projects which will significantly contribute to the attainment of these objectives, fiscal incentives without which said projects may not be established in the locales, number and/or pace required for optimum national economic development. Fiscal incentive systems shall be devised to compensate for market imperfections. reward performance of making contributions to economic development, cost-efficient and be simple to administer. The fiscal incentives shall be extended to stimulate establishment and assist initial operations of the enterprise, and shall terminate after a period of not more than 10 years from registration or start-up of operation unless a specific period is otherwise stated.22 In essence, the law intends to encourage and promote an export-led economy through incentives which are performance-oriented. The same policy and intent can be discerned in P.D. 1789, prior to its amendment by B.P. Blg. 391, evident from its declared purpose to "attain a rising level of production and employment, increase foreign exchange earnings, hasten the economic development of the nation. and assure that the benefits of development accrue to the Filipino people: x x x" In furtherance of the declared statutory policy, the law mandates that all doubts shall be resolved in favor of the grant of benefits therein provided. This is an emphatic provision of Article 63, P.D. 1789, as amended by B.P. Blg. 391, which reads: All doubts concerning the benefits and incentives granted enterprises and investors by this Code shall be resolved in favor of investors and registered enterprises. This provision was reproduced in Art. 79 of the Omnibus Investments Code of 1987 (E.O. 226), a clear manifestation of the continuing policy of the State to liberalize the grant of incentives, as a way to attain the purpose of the law, which is to encourage investments that tend to "result in increased volume and value of exports for the economy. 23 Viewed from the unmistakable statutory purpose, the reduction of the tax incentives petitioner deserved under the law for producing more than its registered capacity, is against the purpose of investment incentive laws.

264

As we have consistently ruled, it the statutory purpose is clear, the provisions of the law should be construed so as not to defeat but to carry out such end and purpose. For a statute derives its vitality from the purpose for which it is enacted and to construe it in a manner that disregards or defeats such purpose is to nullify or destroy the law.24 An administrative agency may not enlarge, alter or restrict the provisions of the statute being administered. It may not engraft additional non-contradictory requirements on the statute which were not contemplated by the legislature.25 There is yet a significant issue raised by petitioner but left unresolved by respondent court, one that bears on the validity or invalidity of the Manual of Operations for lack of publication. There is no dispute that the Manual of Operations was not published. Without prior notice of it, the "base figure" therein formulated, was sprung upon petitioner in 1989 and applied to whittle down its tax incentives for 1988. That was the first time BOI used a "base figure" since the passage of B.P. Blg 391 in 1983. Section 17 of P.D. 1789, as amended by B.P. Blg. 391, explicitly provides that the rules and regulations implementing the Investments Code take effect only after due publication: SEC. 17. The Board [of Investments] shall promulgate rules and regulations to implement the intent and provisions of this act.... Such rules and regulations shall take effect fifteen days following its publication in a newspaper of general circulation in the Philippines. Respondent BOI, having acknowledged that the Manual of Operations in which the "base figure'' was formulated. was issued to implement the provisions of the Investment Code, its adoption being "in execution of or supplementary . . . to the law itself" 26 cannot ignore the need for publication made imperative in the cited provision. The absence of publication is a fatal omission that renders the Manual of Operations void and of no effect. as held in Taada vs. Tuvera.27 We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. xxx xxx xxx

Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation.28 To save the day, respondent BOI argues that the Manual of Operations is merely internal in nature, designed for use by its staff in the proper computation of the tax credits, and therefore, need not be published, citing for support our ruling in Taada, on the exceptions to the requirement of publication, thus Interpretative regulations and those merely internal in nature, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. This Court is not persuaded The Manual of Operations is not just an internal rule affecting only the personnel of BOI. As implemented by BOI, its effects reach out to petitioner and enterprises similarly situated to diminish considerably what the law intends to grant by way of incentives.

265

For the exception to apply, the Manual of Operations must not affect the rights of the public. But it did in a very substantial way. Furthermore, as respondent admit, the Manual of Operations was meant to enforce or implement B.P. Blg. 391, a law of general application. As we said in Taada: Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation.29 Clearly then, publication of the Manual of Operations was a mandatory requirement for its effectivity and BOI's failure to comply with the expressed provision of the law and the teachings in Taada is a fatal omission. As we held: x x x At the very least, before the said circular under attack may be permitted to substantially reduce their income, the government officials and employees concerned should be apprised and alerted by the publication of subject circular in the Official Gazette or in a newspaper of general circulation in the Philippines - to the end that they be given amplest opportunity to voice out whatever opposition they may have, and to ventilate their stance on the matter. This approach is more in keeping with democratic precepts and rudiments of fairness and transparency. (De Jesus v. COA, 294 SCRA 152, 158) x x x When upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed., it behooves the agency to accord at least to those directly informed, before that new issuance is given the force and effect of law. (Commissioner of Internal Revenue v. CA, 261 SCRA 236, 247). We, therefore, rule that the ''Tax Credit on NLC and NVE Manual of Operations" (Manual of Operations) of respondent Board of Investment (BOI) has no legal effect insofar as it adopts as a "base figure" for net value earned (NVE) the "highest attained production volume" in the period preceding the registration of petitioner's additional or expanded capacity. We rule that only the expanded or additional capacity of petitioner registered under B.P. Blg. 1789, as amended by B.P. Blg. 391, is entitled to the tax credit provided therein, and not the pre-existing registered capacity. WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated November 26, 1991 of respondent court in CA-G.R. SP No. 24979 and its Resolution dated April 8, 1992, denying petitioner's motion for reconsideration, the Board Resolution of respondent Board of Investments (BOI) dated May 10, 1990, and its Letters dated August 1, 1990 and March 11, 1991, are hereby SET ASIDE. Respondent BOI is ordered to grant the tax credits due to petitioner for its registered expanded capacity in the year 1988 and onwards, computed strictly in accordance with Articles 48(c ) in relation to 48(c ) of P. D. 1789, as amended by P.D. 391, subject only to deductions provided in the cited provisions of the law, and without applying the base figure under the Manual Of Operations of respondent BOI. SO ORDERED. Davide, Jr., C .J ., Puno, Pardo and Ynares-Santiago, JJ ., concur.

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EN BANC [G.R. No. L-9430. June 29, 1957.] EMILIO SUNTAY Y AGUINALDO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, THE HONORABLE NICASIO YATCO, as Judge of the Court of First Instance of Rizal, Quezon City Branch V, and THE HONORABLE CARLOS P. GARCIA, as Secretary for Foreign Affairs, respondents. Federico Agrava for petitioner. Solicitor General Ambrosio Padilla, First Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for respondents. SYLLABUS 1. FOREIGN AFFAIRS; SECRETARY'S DISCRETIONARY POWERS TO REVOKE PASSPORT WITHOUT HEARING; PASSPORT HOLDER FACING CRIMINAL CHARGE. Where the holder of a passport is facing a criminal charge in our courts and left the country to evade criminal prosecution, the Secretary of Foreign Affairs, in the exercise of his discretion to revoke a passport already issued, cannot be held to have acted whimsically or capriciously in withdrawing and cancelling such passport. Due process does not necessarily mean or require a hearing. When discretion is exercised by an officer vested with it upon are undisputed fact, such as the filing of a serious criminal charge against the passport holder hearing may be dispensed with by such officer as a prerequisite to the cancellation of his passport; lack of such hearing does not violate the due process law clause of the Constitution; and the exercise of the discretion vested in him cannot be deemed whimsical and capricious because of the absence of such hearing. DECISION PADILLA, J p: This is a petition for a writ of certiorari to annul an order of the Court of First Instance of Quezon City directing . . . the National Bureau of Investigation and the Department of Foreign Affairs for them to take proper steps in order that the accused, Emilio Suntay y Aguinaldo, who is alleged to be in the United States, may be brought back to the Philippines, so that he may be dealt with in accordance with law, (Exhibit D). and of prohibition to enjoin the Secretary for Foreign Affairs from cancelling the petitioner's passport without previous hearing. On 26 June 1954, Dr. Antonio Nubla, father of Alicia Nubla, a minor of 16 years, filed a verified complaint against Emilio Suntay in the Office of the City Attorney of Quezon City, as follows: On or about June 21, 1954, the accused took Alicia Nubla from St. Paul's College in Quezon City with lewd design and took her to somewhere near the U.P. compound in Diliman, Quezon City and was then able to have carnal knowledge of her. Alicia Nubla is a minor of 16 years. On 15 December 1954, after an investigation, an Assistant City Attorney recommended to the City Attorney of Quezon City that the complaint be dismissed for lack of merit. On 23 December 1954 attorney for the complainant addressed a letter to the City Attorney of Quezon City wherein he took exception to the recommendation of the Assistant City Attorney referred to and urged that a complaint for seduction be filed against the herein petitioner. On 10 January 1955 the petitioner applied for and was granted a passport by the Department of Foreign Affairs (No. 5981 [A39184]). On 20 January 1955 the petitioner left the Philippines for San Francisco, California, U.S.A., where he is at present enrolled in school. On 31 January 1955 the offended girl subscribed and swore to a complaint charging the petitioner with seduction which was filed in the Court of First Instance of Quezon City after preliminary investigation had been conducted (crim. case No. Q-1596, Exhibit B). On 9 February 1955 the private prosecutor filed a motion praying 267

the Court to issue an order "directing such government agencies as may be concerned, particularly the National Bureau of Investigation and the Department of Foreign Affairs, for the purpose of having the accused brought back to the Philippines so that he may be dealt with in accordance with law." (Exhibit C.) On 10 February 1955 the Court granted the motion (Exhibit D). On 7 March 1955 the respondent Secretary cabled the Ambassador to the United States instructing him to order the Consul General in San Francisco to cancel the passport issued to the petitioner and to compel him to return to the Philippines to answer the criminal charges against him. "The Embassy was likewise directed to make representation with the State Department that Emilio Suntay's presence outside the Philippines is considered detrimental to the best interest of this Government, that his passport has been withdrawn, and that he is not considered under the protection of the Philippines while abroad." (Exhibit E.) However, this order was not implemented or carried out in view of the commencement of this proceedings in order that the issues raised may be judicially resolved. On 5 July 1955 counsel for the petitioner wrote to the respondent Secretary requesting that the action taken by him be reconsidered (Exhibit F), and filed in the criminal case a motion praying that the respondent Court reconsider its order of 10 February 1955 (Exhibit G). On 7 July 1955 the respondent Secretary denied counsel's request (Exhibit H) and on 15 July 1955 the Court denied the motion for reconsideration (Exhibit I). Hence this petition. The petitioner contends that as the order of the respondent Court directing the Department of Foreign Affairs "to take proper steps in order that the" petitioner "may be brought back to the Philippines, so that he may be dealt with in accordance with law," may be carried out only "through the cancellation of his passport," the said order is illegal because "while a Court may review the action of the Secretary of Foreign Affairs in cancelling a passport and grant relief when the Secretary's discretion is abused, the court cannot, in the first instance, take the discretionary power away from the Secretary and itself order a passport to be cancelled." The petitioner further contends that while the Secretary for Foreign Affairs has discretion in the cancellation of passports, "such discretion cannot be exercised until after hearing," because the right to travel or stay abroad is a personal liberty within the meaning and protection of the Constitution and hence he cannot be deprived of such liberty without due process of law. The petitioner's contention cannot be sustained. The petitioner is charged with seduction. And the order of the respondent Court directing the Department of Foreign Affairs "to take proper steps in order that the accused . . . may be brought back to the Philippines, so that he may be dealt with in accordance with law," is not beyond or in excess of its jurisdiction. When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by these rules, any suitable process or mode of proceeding may be adopted which appears most conformable to the spirit of said rules. (Section 6, Rule 124.) Moreover, the respondent Court did not specify what step the respondent Secretary must take to compel the petitioner to return to the Philippines to answer the criminal charge preferred against him. Section 25, Executive Order No. 1, series of 1946, 42 Off. Gaz. 1400, prescribing rules and regulations for the grant and issuance of passports, provides that The Secretary of Foreign Affairs as well as any diplomatic or consular officer duly authorized by him, is authorized, in his discretion, to refuse to issue a passport, to restrict a passport for use only in certain countries, to restrict it against use in certain countries, to withdraw or cancel a passport already issued, and to withdraw a passport for the purpose of restricting its validity or use in certain countries. (Italics supplied.) True, the discretion granted, to the Secretary for Foreign Affairs to withdraw or cancel a passport already issued may not be exercised at whim. But here the petitioner was hailed to Court to answer a criminal charge for seduction and although at first an Assistant City Attorney recommended the dismissal of the complaint previously subscribed and sworn to by the father of the offended girl, yet 268

the petitioner knew that no final action had been taken by the City Attorney of Quezon City as the case was still under study. And as the Solicitor General puts it, "His suddenly leaving the country in such a convenient time, can reasonably be interpreted to mean as a deliberate attempt on his part to flee from justice, and, therefore, he cannot now be heard to complain if the strong arm of the law should join together to bring him back to justice." In issuing the order in question, the respondent Secretary was convinced that a miscarriage of justice would result by his inaction and as he issued it in the exercise of his sound discretion, he cannot be enjoined from carrying it out. Counsel for the petitioner insists that his client should have been granted a "quasi-judicial hearing" by the respondent Secretary before withdrawing or cancelling the passport issued to him. Hearing would have been proper and necessary if the reason for the withdrawal or cancellation of the passport were not clear but doubtful. But where the holder of a passport is facing a criminal charge in our courts and left the country to evade criminal prosecution, the Secretary for Foreign Affairs, in the exercise of his discretion to revoke a passport already issued, cannot be held to have acted whimsically or capriciously in withdrawing and cancelling such passport. Due process does not necessarily mean or require a hearing. When discretion is exercised by an officer vested with it upon an undisputed fact, such as the filing of a serious criminal charge against the passport holder, hearing may be dispensed with by such officer as a prerequisite to the cancellation of his passport; lack of such hearing does not violate the due process of law clause of the Constitution; and the exercise of the discretion vested in him cannot be deemed whimsical and capricious because of the absence of such hearing. If hearing should always be held in order to comply with the due process of law clause of the Constitution, then a writ of preliminary injunction issued ex parte would be violative of the said clause. In the cases of Bauer vs. Acheson, 106 F. Supp. 445; Nathan, vs. Dulles, 129 F. Supp. 951; and Schachtman vs. Dulles No. 12406, 23 June 1955, all decided by the United States Court of Appeals for the district of Columbia, cited by the petitioner, the revocation of a passport already issued or refusal to issue a passport applied for, was on the vague reason that the continued possession or the issuance thereof would be contrary to the best interest of the United States. The petition is denied, with costs against the petitioner.
Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L., Endencia and Felix JJ., concur.

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EN BANC [G.R. No. L-29646. November 10, 1978.] MAYOR ANTONIO J. VILLEGAS, petitioner, vs. HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents. Angel C . Cruz, Gregorio A. Ejercito, Felix C . Chaves & Jose Laureta for petitioner. Sotero H . Laurel for respondents. DECISION FERNANDEZ, J p: This is a petition for certiorari to review the decision dated September 17, 1968 of respondent Judge Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the dispositive portion of which reads: "Wherefore, judgment is hereby rendered in favor of the petitioner and against the respondents, declaring Ordinance No. 6537 of the City of Manila null and void. The preliminary injunction is hereby made permanent. No pronouncement as to cost. SO ORDERED. Manila, Philippines, September 17, 1968. (SGD.) FRANCISCO ARCA Judge" 1 The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22, 1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968. 2 City Ordinance No. 6537 is entitled: "AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES." 3 Section 1 of said Ordinance No. 6537 4 prohibits aliens from being employed or to engage or participate in any position or occupation or business enumerated therein, whether permanent, temporary or casual, without first securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00 except persons employed in the diplomatic or consular missions of foreign countries, or in the technical assistance programs of both the Philippine Government and any foreign government, and those working in their respective households, and members of religious orders or congregations, sect or denomination, who are not paid monetarily or in kind. cdrep Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six (6) months or fine of not less than P100.00 but not more than P200.00 or both such fine and imprisonment, upon conviction. 5 On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho, who was employed in Manila, filed a petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797, praying for the issuance of the writ of preliminary injunction and restraining order to stop the enforcement of Ordinance No. 6637 as well as for a judgment declaring said Ordinance No. 6537 null and void. 6 In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the ordinance declared null and void: 1) As a revenue measure imposed on aliens employed in the City of Manila, Ordinance No. 6537 is discriminatory and violative of the rule of the uniformity in taxation; 2) As a police power measure, it makes no distinction between useful and non-useful occupations, imposing a fixed P50.00 employment permit, which is out of proportion to the cost of registration and that it fails to prescribe' any standard to guide and/or limit the action of the Mayor, thus, violating the fundamental principle on illegal delegation of legislative powers: 270

3) It is arbitrary, oppressive and unreasonable, being applied only to aliens who are thus, deprived of their rights to life, liberty and property and therefore, violates the due process and equal protection clauses of the Constitution. 7 On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17, 1968 rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ of preliminary injunction. 8 Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the present petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed by respondent Judge in the latter's decision of September 17, 1968: 9 "I. THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE OF UNIFORMITY OF TAXATION. II. RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF LEGISLATIVE POWER. III. RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION." Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the ground that it violated the rule on uniformity of taxation because the rule on uniformity of taxation applies only to purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue measure but is an exercise of the police power of the state, it being principally a regulatory measure in nature. cdll The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal purpose is regulatory in nature has no merit. While it is true that the first part which requires that the alien shall secure an employment permit from the Mayor involves the exercise of discretion and judgment in the processing and approval or disapproval of applications for employment permits and therefore is regulatory in character the second part which requires the payment of P50.00 as employee's fee is not regulatory but a revenue measure. There is no logic or justification in exacting P50.00 from aliens who have been cleared for employment. It is obvious that the purpose of the ordinance is to raise money under the guise of regulation. The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid substantial differences in situation among individual aliens who are required to pay it. Although the equal protection clause of the Constitution does not forbid classification, it is imperative that the classification, should be based on real and substantial differences having a reasonable relation to the subject of the particular legislation. The same amount of P50.00 is being collected from every employed alien, whether he is casual or permanent, part time or full time or whether he is a lowly employee or a highly paid executive. Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise of his discretion. It has been held that where an ordinance of a municipality fails to state any policy or to set up any standard to guide or limit the mayor's action, expresses no purpose to be attained by requiring a permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus conferring upon the Mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, such ordinance is invalid, being an undefined and unlimited delegation of power to allow or prevent an activity per se lawful. 10 271

In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where a law granted a government agency power to determine the allocation of wheat flour among importers, the Supreme Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer an arbitrary discretion to be exercised without a policy, rule, or standard from which it can be measured or controlled. It was also held in Primicias vs. Fugoso 12 that the authority and discretion to grant and refuse permits of all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled discretion but legal discretion to be exercised within the limits of the law. Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide the mayor in the exercise of the power which has been granted to him by the ordinance. The ordinance in question violates the due process of law and equal protection rule of the Constitution. Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The shelter of protection under the due process and equal protection clause is given to all persons, both aliens and citizens. 13 The trial court did not commit the errors assigned. LLpr WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs. SO ORDERED. Barredo, Makasiar, Muoz Palma, Santos, and Guerrero, JJ ., concur. Castro, C . J ., Antonio and Aquino, JJ ., concur in the result. Concepcion Jr., J ., took no part. Separate Opinions TEEHANKEE, J ., concurring: I concur in the decision penned by Mr. Justice Fernandez which affirms the lower court's judgment declaring Ordinance No. 6537 of the City of Manila null and void for the reason that the employment of aliens within the country is a matter of national policy and regulation, which properly pertain to the national government officials and agencies concerned and not to local governments, such as the City of Manila, which after all are mere creations of the national government. aisa dc The national policy on the matter has been determined in the statutes enacted by the legislature, viz, the various Philippine nationalization laws which on the whole recognize the right of aliens to obtain gainful employment in the country with the exception of certain specific fields and areas. Such national policies may not be interfered with, thwarted or in any manner negated by any local government or its officials since they are not separate from and independent of the national government. LibLex As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs. Earnshaw, 59 Phil. 129: "The City of Manila is a subordinate body to the Insular (National Government . . . ). When the Insular (National) Government adopts a policy, a municipality is without legal authority to nullify and set at naught the action of the superior authority." Indeed, "not only must all municipal powers be exercised within the limits of the organic laws, but they must be consistent with the general law and public policy of the particular state . . . " (I McQuillin, Municipal Corporations, 2nd sec. 367, p. 1011). With more reason are such national policies binding on local governments when they involve our foreign relations with other countries and their nationals who have been lawfully admitted here, since in such matters the views and decisions of the Chief of State and of the legislature must prevail over those of subordinate and local governments and officials who have no authority whatever to take official acts to the contrary. Fernando, J ., concurs. Footnotes 1. Annex "F", Petition, Rollo, p. 64. 272

2. Petition, Rollo, p. 28. 3. Annex "A" of Petition, Rollo, pp. 37-38. 4. Section 1. It shall be unlawful for any person not a citizen of the Philippines to be employed in any kind of position or occupation or allowed directly or indirectly to participate in the functions, administration or management in any office, corporation, store, restaurant, factory, business firm, or any other place of employment either as consultant, adviser, clerk, employee, technician, teacher, actor, actress, acrobat, singer or other theatrical performer, laborer, cook, etc., whether temporary, casual, permanent or otherwise and irrespective of the source or origin of his compensation or number of hours spent in said office, store, restaurant, factory, corporation or any other place of employment, or to engage in any kind of business and trade within the City of Manila, without first securing an employment permit from the Mayor of Manila, and paying the necessary fee therefor to the City the City Treasurer: PROVIDED, HOWEVER, That persons employed in diplomatic and consular missions of foreign countries and in technical assistance programs agreed upon by the Philippine Government and any foreign government, and those working in their respective households, and members of different congregations or religious orders of any religion, sect or denomination, who are not paid either monetarily or in kind shall be exempted from the provisions of this Ordinance. 5. Section 4. Any violation of this Ordinance shall, upon conviction, be punished by imprisonment of not less than three (3) months but not more than six (6) months or by a fine of not less than one hundred pesos (P100.00) but not more than two hundred pesos (P200.00), or by both such fine and imprisonment, in the discretion of the Court: PROVIDED, HOWEVER, That in case of juridical persons, the President, the Vice President or the person in charge shall be liable. 6. Annex "B ", Petition, Rollo, p. 39. 7. Ibid. 8. Annex "F", Petition, Rollo, pp. 75-83. 9. Petition, Rollo, p. 31. 10. People vs. Fajardo, 104 Phil. 443, 446. 11. 89 Phil. 439, 459-460. 12. 80 Phil. 86.
13. Kwong Sing vs. City of Manila, 41 Phil. 103.

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THIRD DIVISION [G.R. No. 118882. September 26, 1996.] PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS, HON. PEDRO S. ESPINA, CRISTETA REYES, JOHNY SANTOS, ANTONIO ALEGRO, ROGELIO MENGUIN, PETE ALVERIO, ROGEN DOCTORA and JANE GO, respondents. SYLLABUS 1. REMEDIAL LAW; ACTIONS; PROCEDURAL DUE PROCESS; ESSENTIAL REQUIREMENT. One of the essential requirements of procedural due process in a judicial proceeding is that there must be an impartial court or tribunal clothed with judicial power to hear and determine the matter before it. Thus, every litigant, including the State, is entitled to the cold neutrality of an impartial judge. 2. JUDICIAL ETHICS; JUDGES; MUST POSSESS COLD NEUTRALITY TO FAIRLY ASSESS EVIDENCE OF PROSECUTION AND DEFENSE; PREVIOUS DECISION IN SPECIAL. CIVIL ACTION ENJOINING PRELIMINARY INVESTIGATION AGAINST PRINCIPAL ACCUSED, AN INDICATION OF PARTIALITY; JUDGE SHOULD HAVE VOLUNTARILY INHIBITED FROM HEARING CRIMINAL CASES. In the case at bar, Judge Pedro Espina, as correctly pointed out by the Solicitor General, can not be considered to adequately possess such cold neutrality of an impartial judge as to fairly assess both the evidence to be adduced by the prosecution and the defense in view of his previous decision in Special Civil Action No. 92-11-219 wherein he enjoined the preliminary investigation at the Regional State Prosecutor's Office level against herein respondent Jane Go, the principal accused in the killing of her husband Dominador Go. Judge Espina's decision in favor of respondent Jane Go serves as sufficient and reasonable basis for the prosecution to seriously doubt his impartiality in handling the criminal case. Verily, it would have been more prudent for Judge Espina to have voluntarily inhibited himself from hearing the criminal cases. RESOLUTION MELO, J p: Before us is a petition for review with an urgent prayer for a writ of preliminary injunction and/or restraining order which seeks to: (a) annul and set aside the decision of the Court of Appeals in CAG.R. SP No. 31733 entitled "People of the Philippines vs. Hon. Pedro S. Espina et al.," insofar as it denied the People's prayer to inhibit respondent Judge Pedro S. Espina of the Regional Trial Court of Tacloban City from hearing Criminal Cases No. 93-01-38 & 93-01-39, respectively, entitled "People of the Philippines vs. Cristeta Reyes, et al." and "People of the Philippines vs. Jane C. Go"; and b) enjoin respondent judge from conducting further proceedings in the aforesaid criminal cases. Acting on the said petition, the Court on April 3, 1995 resolved to require respondents all of whom are the accused in the aforesaid criminal cases, to comment thereon within 10 days from notice, to issue the temporary restraining order prayed for, and to enjoin respondent judge from taking further action in Criminal Cases No. 93-01-38 & 93-01-39 until further orders from the Court. It appearing that private respondents Cristeta Reyes & Rogen Doctora, Johny Santos & Antonio Alegro & Jane C. Go failed to file their respective comments within the period which expired on April 17, 1995 and April 18, 1995, respectively, the Court on June 26, 1995 resolved to require said private respondents to show cause why they should not be disciplinary dealt with for such failure, and to file the required comments, both within ten (10) days from notice. As to respondents Johny Santos & Antonio Alegro (prisoners at the Tacloban City Jail), copies of the resolution requiring them to file comment were returned unserved with the postmaster's notation "unknown in said address". The Court, on October 11, 1995 directed the Solicitor General to serve the same on said respondents and to inform the Court of such service, both within ten (10) days from notice. The Office of the Solicitor General filed a Compliance stating that the required copies were sent to private respondents Santos & Alegro through ordinary mail on December 26, 1995. 274

To date, all the respondents have not yet filed their comments, for verily, delay in the submission of the same would appear to benefit respondents, and sanction against them may not really amount to much, considering that most of them are under detention. Thus, so as not to unduly delay the disposition of Criminal Cases No. 93-01-38 and 93-01-39, we now resolve to dispense with respondent's comments and to proceed with the disposition of the petition. One of the essential requirements of procedural due process in a judicial proceeding is that there must be an impartial court or tribunal clothed with judicial power to hear and determine the matter before it. Thus, every litigant, including the State, is entitled to the cold neutrality of an impartial judge which was explained in Javier vs. Commission of Elections (144 SCRA 194 [1986]), in the following words: This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The Judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. In the case at bar, Judge Pedro Espina, as correctly pointed out by the Solicitor General, can not be considered to adequately possess such cold neutrality of an impartial judge as to fairly assess both the evidence to be adduced by the prosecution and the defense in view of his previous decision in Special Civil Action No. 92-11-219 wherein he enjoined the preliminary investigation at the Regional State Prosecutor's Office level against herein respondent Jane Go, the principal accused in the killing of her husband Dominador Go. Judge Espina's decision in favor of respondent Jane Go serves as sufficient and reasonable basis for the prosecution to seriously doubt his impartiality in handling the criminal cases. Verily, it would have been more prudent for Judge Espina to have voluntarily inhibited himself from hearing the criminal cases. WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. No. 31733 is hereby SET ASIDE and The Honorable Pedro Espina, Presiding Judge of Branch 7 of the Regional Trial Court of the 8th Judicial Region stationed in Tacloban is hereby declared disqualified from taking cognizance of Criminal Cases No. 93-01-38 and 93-01-39. It is further ordered that these criminal cases be re-raffled to another branch of the Regional Trial Court of Tacloban City. SO ORDERED.
Narvasa, C.J., Davide, Jr., Francisco and Panganiban, JJ ., concur

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